Lemoore Municipal Code Ch. 7 Massage Regulations

Government Code sections 51030 through 51034 provide authority for the legislative bodies of California cities to license and regulate the business of massage. In enacting this chapter, the city council recognizes that massage is a viable professional field offering the public valuable health and therapeutic services. However, there are known instances, both within and outside the city, where the practice of massage and the operation of massage establishments have been associated with unlawful activity and pose a threat to the quality of life in the community. It is the purpose and intent of this chapter to protect the public health, safety, and welfare by adopting regulations to prevent blighting conditions and deter criminal activity that could occur from the practice of massage and the operation of massage establishments. It is not the intent of this chapter to punish legitimate massage practitioners and establishments. (Ord. 2017-01, 2-7-2017)

For the purposes of this chapter, unless the context clearly requires a different meaning, the words, terms, and phrases set forth in this chapter shall have the meanings given to them in this section.

CERTIFIED MASSAGE THERAPIST: A person who is certified by the California Massage Therapy Council ("CAMTC") pursuant to chapter 10.5 (commencing with section 4600) of division 2 of the California Business And Professions Code.

CHIEF OF POLICE: The chief of the Lemoore police department or his/her designee.

FOR COMPENSATION: The exchange of massage services for money, goods, or other services. An establishment or person cannot avoid the requirements of this chapter by offering free massage in conjunction with other services or goods provided to a client or customer for compensation.

MANAGING EMPLOYEE: Any employee of a massage establishment who has responsibility for supervising, directing, or assigning work to massage therapists.

MASSAGE: Any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands or any other parts of the body or with the aid of any mechanical or electrical apparatus or other appliances or devices, with or without the use of oils, creams, tonics, lotions, antiseptics, tanning products, or other similar preparations. Massage shall further include baths, including aromatherapy, vapor, shower, electric tub, sponge, hot towels, sauna, steam, or any other type of bath where the essential nature of the service involves any method of pressure or friction against, or stimulating the external parts of, the human body, with the hands or any other parts of the body.

MASSAGE ESTABLISHMENT: An establishment having a fixed place of business where any person, firm, association, or corporation practices or otherwise permits massage for compensation. The term "massage establishment" includes establishments that offer services such as relaxation, hot tub, towel wraps, baths, health treatments, tanning, or any service where the essential nature of the interaction between the employee and the customer involves a massage.

MASSAGE THERAPIST: Any person who, for any type of compensation, practices massage.

OPERATOR: Any individual who has any ownership interest in the massage establishment.

OUTCALL MASSAGE: Providing massage services for compensation at a location other than at a permitted massage establishment.

PERMIT: A written document authorizing the holder to engage in the business specified in the document. Two (2) types of permits are issued pursuant to this chapter: establishment permits and outcall massage business permits. (Ord. 2017-01, 2-7-2017)

A. Establishment Permit: It is unlawful for any owner, operator, officer, director, or managing employee of a massage establishment to operate or permit the operation of such business without a valid massage establishment permit as required by this chapter.

B. Outcall Massage Business Permit: It is unlawful for any person to provide outcall massage services without a valid outcall massage business permit.

C. Certification: It is unlawful for any person other than a certified massage therapist to provide massage services within the city unless exempted as provided in this chapter. (Ord. 2017-01, 2-7-2017)

The premises and property on which the premises occupied by a massage establishment is located must conform to all applicable land use and zoning requirements. (Ord. 2017-01, 2-7-2017)

A. Exemption From Establishment Permit; Other Professionals Practicing Within Scope Of Profession: No establishment permit shall be required for the following persons when practicing massage within the scope of their profession:

1. Any cosmetologist, barber, aesthetician, manicurist, electrologist, apprentice barber, or cosmetology instructor licensed under the California barbering and cosmetology act.

2. Any person licensed to practice any healing art under the provisions of division 2 (commencing with section 500) of the California Business And Professions Code or the chiropractic act.

3. Acupuncturists who are licensed to practice their profession in the state of California.

4. Nurses, physical therapists, or occupational therapists who are licensed to practice their professions in the state of California.

5. Except as provided in subsection B of this section, the establishment permit exemption in this subsection A does not apply if the place of business allows professionals other than those identified in this subsection A to perform massage either as employees or independent contractors. Under those circumstances, the place of business shall have a valid establishment permit and the nonexempt massage therapist shall have a valid therapist permit.

B. Exemption From Establishment Permit; Medical Offices: No establishment permit shall be required for the offices of a licensed physician, surgeon, or osteopath; provided that the person performing the massage has a valid massage permit and is performing massage under the direct supervision and recommendation of such licensed medical professional.

C. Exemption From Establishment Permit; Occasional Recreational Events: No establishment permit shall be required where massage services are provided at an occasional recreational or community event, provided the following conditions are met: 1) the person providing the massage is in possession of a valid massage therapist permit; 2) massage services are made equally available to all participants of the event; 3) the event is open to participation by a significant segment of the public such as employees of a sponsoring or participating corporation; 4) massage services are provided at the event site and during the hours the event is scheduled; 5) the event sponsors have approved of the provision of massage services; and 6) those providing massage services are not the primary sponsors of the event. "Occasional" shall mean not more than once per month. (Ord. 2017-01, 2-7-2017)

Written application for an establishment permit or outcall massage business permit required by this chapter shall be filed with the chief of police. Such application shall be accompanied by a fee as approved by the city council. Upon approval of the permit by the chief of police, the applicant must also apply for a business license through the city clerk's office and pay any applicable license fees.

The following information, unless specifically prohibited by California Government Code section 51034, shall be provided in the application concerning the applicant, if an individual; concerning each stockholder, each officer and each director, if the applicant is a closely held corporation; concerning each partner, including limited partners, if the applicant is a partnership; concerning the operator of the establishment; and concerning principals of the business that exercise control over operation of the business not identified above.

A. Identifying Information: Name, present residential and business addresses, telephone numbers, birth date and California driver's license or identification card number of the applicant.

B. Prior Residential Addresses: All residential addresses and dates of residence for five (5) years preceding the date of the application.

C. Prior Business And Employment History: Business, occupation or employment history of the applicant for the five (5) years immediately preceding the date of the application.

D. Evidence That Applicant Is Over Eighteen: Satisfactory proof that the applicant is over the age of eighteen (18) years. Satisfactory proof may consist of a California driver's license, California identification card, or a United States passport.

E. Arrests And Convictions: A listing and explanation of any arrests or convictions for any felonies or nontraffic related misdemeanors.

F. Fingerprints: Fingerprints of the applicant.

G. Photograph: Submit to a photograph taken by the police department.

H. Prior Abatement Of A Business: Statement indicating whether the applicant has ever had an ownership interest in, operated or been employed by any business which has been the subject of an abatement proceeding under the California red light abatement act or any similar abatement laws, whether in California or other jurisdictions.

I. Other Information: Any other information as required by the chief of police.

In addition to the information required above, an applicant for an establishment permit must also provide:

J. Premises Ownership And Lease Information: A statement on whether the applicant owns, leases, or rents the premises where the massage establishment will be located. If the applicant leases or rents the premises, the applicant shall provide the name, address, and telephone number of the owner of the premises and the term of any lease.

K. Address And Name Of Business: The address where the applicant proposes to operate a massage establishment and the name under which the business will be operated.

L. Prior Massage Businesses: The business name, street address, and city of any and all businesses where the applicant conducted any business providing massage, relaxation, hot tub, towel wraps, baths, health treatments, or tanning services within twenty four (24) months preceding the date of the application.

M. Evidence Of Other Permits: Evidence of applicable land use and/or building permits as required by the city of Lemoore. (Ord. 2017-01, 2-7-2017)

Certified massage therapists must register with the Lemoore police department prior to providing massage services. The registration application shall include at a minimum, the following information: name, address, telephone number(s), place(s) of employment, whether the applicant intends to engage in "outcall massage" as defined in section 4-7-2 of this chapter, and evidence of certification from the CAMTC. There is no charge for the registration.

Certified massage therapists shall update their registration within ten (10) days of any changes and shall maintain on file with the Lemoore police department a current copy of their CAMTC certificate. (Ord. 2017-01, 2-7-2017)

Permits issued under this chapter shall be renewed every two (2) years as set forth in section 4-7-11 of this chapter. Permittees and certified massage therapist registrants shall, however, at all times maintain an active business license with the city of Lemoore. In addition, the permittee shall notify the chief of police of the following within ten (10) calendar days after they occur: a) any change of home address, change in home or work telephone number, or change in location of business; and b) any arrest for an offense listed under subsection 4-7-10B of this chapter. (Ord. 2017-01, 2-7-2017)

Fees for each establishment permit and outcall massage business permit shall be paid to the Lemoore police department at the time the application is submitted and are nonrefundable. Fee amounts shall be approved by the city council.

Upon approval by the police department of an establishment permit or outcall massage business permit, the applicant shall also pay applicable business license fees through the finance department. (Ord. 2017-01, 2-7-2017)

The chief of police shall investigate the background of an applicant of any permit. Additionally, the chief of police shall refer an application for an establishment permit to the city of Lemoore planning department with respect to applicable zoning and building requirements. The chief of police may also refer an application to other persons, entities, or agencies as appropriate. (Ord. 2017-01, 2-7-2017)

A. Time To Act: The chief of police shall either issue or deny a permit within sixty (60) calendar days following receipt of a completed application for an establishment permit or outcall massage business permit. In taking such action, the chief of police shall consider the recommendations of city officials investigating the application, along with any other relevant information.

B. Grounds For Denial Of A Permit: The chief of police shall deny an establishment permit or outcall massage business permit on any of the following grounds:

1. The applicant, owner, operator, any officer or director of a massage establishment has been convicted of a violation of section 266h, 266i, 311 through 312.7, 314, 315, 316, 318, or subdivision (a), (b) or (d) of section 647 of the California Penal Code, any serious and/or violent felony as defined in subdivision (c) of section 1192.7 or 667.5 of the California Penal Code, or any other crime involving moral turpitude.

2. The applicant, owner, operator, any officer or director of a massage establishment has been convicted of offenses equivalent to those listed above under the laws of another jurisdiction, even if expunged.

3. The applicant, owner, operator, any officer or director of a massage establishment is required to register under the provisions of section 290 of the California Penal Code.

4. The applicant, owner, operator, any officer or director of a massage establishment has been convicted of a violation of Health And Safety Code section 11550 or any offense involving the possession or sale of a controlled substance specified in section 11054, 11055, 11056, 11057, or 11058 of the Health And Safety Code or convicted of an equivalent offense in any other state.

5. The applicant, owner, operator, any officer, or director of a massage establishment has been convicted of any offense involving sexual misconduct with children.

6. The operation of a massage establishment at the proposed location would be injurious to the health, safety, or welfare of the community.

7. The operation of the massage establishment, as proposed by the applicant, would not comply with all applicable laws including city ordinances and regulations.

8. The applicant knowingly made a material omission or misstatement of fact in the license application.

9. The applicant, owner, operator, any officer or director of a massage establishment has violated any provision of this chapter or any similar law, rule or regulation of another public agency which regulates the operation of massage establishments.

C. Conditions Of Approval: If a permit is approved, the chief of police shall include such restrictions and conditions in the permit, as he/she deems reasonable and necessary under the circumstances, to ensure compliance with the purposes and intent of this chapter.

D. Notice And Appeal: Upon approval or denial of a permit, the chief of police shall prepare and forward to the applicant written notice that the permit has been granted, or denied, along with a statement of any conditions of approval attached thereto. The written notice shall be sent by certified mail to the applicant. The decision of the chief of police upon application for a permit shall become final unless an appeal is filed with the city clerk within fifteen (15) calendar days following delivery of the written notice. (Ord. 2017-01, 2-7-2017)

A. Issuance After Approval: Following the approval of a permit and the lapse of a fifteen (15) calendar day appeal period, the chief of police shall issue a permit.

B. Term Of Permit: Each newly issued establishment permit and outcall massage business permit shall be valid for a term until the second succeeding December 31 after issuance. Each establishment permit and outcall massage business permit in effect as of the date of this chapter shall be valid for a term until the second succeeding December 31 after the effective date of this chapter. Thereafter, all permits shall be for a term of two (2) calendar years. All permits automatically expire at the end of the term unless renewed prior to that time.

C. Renewal: Permits may be renewed prior to expiration by submitting an application for renewal to the chief of police prior to November 1, accompanied by a renewal fee as approved by the city council. The application for renewal shall contain the same information required by section 4-7-6 of this chapter, updated to reflect changes in the preceding two (2) years. The denial or renewal of an establishment permit shall be evaluated in the same manner as the initial granting of the permit.

D. Content Of Permit: The permit shall specify the full legal name of the permittee. An establishment permit shall specify the name and address of the business location. An establishment permit shall authorize massage services only at the location specified in the permit. (Ord. 2017-01, 2-7-2017)

A. Appeal Period: An applicant dissatisfied with the denial or conditions of approval of an establishment permit or outcall massage business permit may file an appeal with the city clerk. The appeal must be filed within fifteen (15) calendar days following delivery of written notice from the chief of police that the establishment permit or outcall massage business permit was approved or denied. Delivery shall be the date the notice is mailed or hand delivered. The appeal shall be accompanied by the payment of an appeal fee as approved by the city council.

B. Public Hearing: The city clerk shall forward the appeal to the city manager who shall schedule a public hearing for the appeal. Notice of such hearing shall be mailed to the appellant at least ten (10) days prior to the hearing. Notice of such hearing on an appeal of an establishment permit shall also be mailed to the property owner.

C. Time To Hear Appeal: The appeal shall be heard within sixty (60) calendar days after filing of the appeal.

D. Decision After Hearing: The city manager shall conduct a de novo hearing and may approve, conditionally approve, or deny the permit application based upon grounds set forth in section 4-7-10 of this chapter. (Ord. 2017-01, 2-7-2017)

A. Revocation For Cause; Notice Of Revocation: The chief of police may revoke an establishment permit or outcall massage business permit for good cause. Before the chief of police revokes a permit, the chief of police shall provide written notice of the revocation by certified mail. The notice shall provide for revocation of the permit fifteen (15) calendar days after service of the notice (the date of mailing or personal service) unless the permittee requests an appeal hearing. The notice shall instruct the permittee on how to file an appeal.

B. Appeal: Within fifteen (15) calendar days of service of the revocation notice, the permittee may file an appeal of the revocation and request a hearing be held in accordance with section 4-7-12 of this chapter. If an appeal is filed, the city manager shall conduct a de novo hearing on the appeal of any permit revocation and may approve, conditionally approve, modify, or deny the revocation based upon grounds as set forth in subsection E of this section.

C. Stay Of Revocation Pending Appeal: If an appeal is filed, the revocation decision of the chief of police shall be stayed pending a decision by the city manager.

D. Effect Of No Appeal; Final Decision: If after the passage of fifteen (15) calendar days from service of the revocation notice, the permittee has not requested an appeal, the revocation decision of the chief of police shall become final.

E. Grounds For Revocation: A permit may be revoked for good cause on the basis of any of the following:

1. The permit was obtained by fraud; or

2. Any person making use of such permit is violating or has violated any conditions of such permit; or

3. The detriment to the public health or safety, or the nuisance arising from the conduct of the massage establishment, or from changed circumstances, necessitates the revocation of the permit; or

4. The permittee has violated, or permitted any other person under his/her control or supervision to violate, any provision of this chapter or of other local, state, or federal law in connection with the practice of massage or operation of a massage establishment; or

5. The permittee has committed any offense involving lewdness, indecent exposure, prostitution, or any other offense which would be grounds for denial of an application, or employees of the establishment have committed such offenses in the course of their employment and the permittee has failed to prevent them from doing so. The employer shall be responsible for those acts of its employees and massage therapists which are done in the course and scope of their employment, or which occur on the premises of the massage establishment. (Ord. 2017-01, 2-7-2017)

A. Grounds For Immediate Suspension Of Permit: The chief of police may immediately suspend an establishment permit or outcall massage business permit if there is reasonable cause to believe that:

1. The permit holder is operating or managing the establishment, or providing services in a manner which poses an immediate danger to the health or safety of employees, clients, or the public; or

2. The permit holder has been convicted of or pleaded nolo contendere to any offense involving lewdness, indecent exposure, prostitution, sexual battery, or any sex related crime. The only permit, which shall be immediately suspended under this condition, shall be the permit belonging to the person convicted.

B. Notice Of Suspension: If the chief of police immediately suspends a permit, the chief of police shall provide written notice to the permittee by certified mail. The notice shall contain a statement that the permit is immediately suspended and such suspension shall remain in effect during the period of time that an appeal may be filed or an appeal is under consideration. The notice shall provide information on the appeal process and explain that the suspension may lead to a permanent revocation of the permit.

C. Appeal: Within fifteen (15) calendar days of service of the immediate suspension (the date of mailing or personal service), the permittee may file an appeal of the suspension and request a hearing in accordance with section 4-7-12 of this chapter. If an appeal is filed, the city manager shall conduct a de novo hearing on the appeal of any permit suspension and may permanently revoke the permit, reinstate the permit, conditionally reinstate the permit, or modify the suspension, based upon findings related to circumstances described in subsection 4-7-13E of this chapter and subsection A of this section.

D. Effect Of No Appeal; Final Decision: If after the passage of fifteen (15) calendar days from service of the suspension notice, the permittee has not filed an appeal, the decision of the chief of police to suspend the permit shall become final and the permit shall be permanently revoked. (Ord. 2017-01, 2-7-2017)

Permits granted under this chapter shall not be transferable, either as to the permittee or the location. Any attempt to transfer shall render the permit invalid and no further massages may be conducted under such permits. With respect to a change in location only, the applicant may apply for and obtain an amendment to the permit. Only that information necessary to process the change in location shall be required. (Ord. 2017-01, 2-7-2017)

Every person holding an establishment permit shall notify the chief of police, in writing, of the name and residence of each person employed as a massage therapist within five (5) days of the start of employment. (Ord. 2017-01, 2-7-2017)

The provisions of this chapter shall be applicable to all persons and businesses described herein upon adoption of this chapter by the city council except as provided herein.

A. Existing Massage Therapists Permits: Any person providing massage services on the effective date of this chapter pursuant to a valid city issued massage therapist permit under the city's previously allowed educational and examination requirements shall be required to obtain certification from CAMTC within two (2) years from the effective date of this chapter, or earlier upon revocation of the permit. This grace period shall only apply if the individual:

1. Has an unexpired paid up Lemoore business license to operate a massage business or the individual provides satisfactory evidence that he or she is an employee of a Lemoore licensed massage establishment and not required to have a business license; and

2. Operates in compliance with all applicable laws and regulations. (Ord. 2017-01, 2-7-2017)

No permittee, or any employee of a massage establishment, shall engage in, or allow, any of the acts prohibited by California Business And Professions Code section 4609. A violation of that section shall be considered a violation of this chapter. (Ord. 2017-01, 2-7-2017)

Massage establishments shall comply with all applicable federal, state, and local regulations, and with the following requirements:

A. Hours Of Operation: No massage establishment and no massage therapist may provide massage services between the hours of ten o'clock (10:00) P.M. and seven o'clock (7:00) A.M. Clients and visitors shall be excluded from a massage establishment during those hours.

B. Maintenance Of Permits: A copy of the establishment permit and each therapist's permit or CAMTC certificate shall be posted in a conspicuous place on the establishment premises in such a manner that can be easily seen by persons entering the establishment. A passport size photograph of the permittee shall be affixed to each therapist's permit or certificate.

C. Posting Of Services Offered: A list of all services available, the price thereof, and the length of time of each service shall be posted or available in a conspicuous place in such a manner that it can be easily viewed by persons entering the massage establishment. No services, other than those set forth on the list, shall be provided.

D. Payment: All payments for massage services, including gratuities or tips, shall be made at a designated reception area exclusively. At least one sign, with lettering not less than one- half inch (1/2") in height, shall be posted in a conspicuous place in such a manner that it can be easily seen by persons entering the establishment stating, "All payments for massage services, including gratuities or tips, shall be made in the designated reception area exclusively". This provision shall not apply to one room massage establishments that do not have a reception area.

E. Alcohol And Marijuana Prohibited: No alcoholic beverages and no marijuana shall be sold, served, furnished, kept, or possessed in any part of a massage establishment. The owner, operator, and managing employee shall be responsible to ensure that no person possesses alcoholic beverages or marijuana inside the massage establishment.

F. Payroll And Other Written Records: Every massage establishment shall maintain payroll and written records of all business transactions. The written records shall include, at a minimum, the type of service provided, the date and hour the service is provided, and the name of the massage therapist administering the service. These records shall be kept on the premises and shall be open to inspection by officials charged with enforcement of this chapter, including the chief of police and his/her designee and the city attorney. These records shall be retained for a period of at least two (2) years.

G. Advertising: No services shall be offered in signs, posters, fliers, newspapers or other printed advertisements, or in verbal or recorded announcements or messages, other than those lawfully permitted and posted as required in subsection C of this section. Photographs, drawings, written or verbal statements used in any advertising shall not explicitly or implicitly communicate that services offered are for the purpose of sexual stimulation or gratification.

H. Compliance With SB 577: Massage establishments and massage therapists shall comply with the requirements of Business And Professions Code sections 2053.5 and 2053.6 pertaining to disclosure and acknowledgment that massage services are not being provided by a licensed physician, are not licensed services by the state, the qualifications of the person providing the massage services, and those other matters as set forth in the statutes.

I. Compliance With AB 1147: Massage establishments and massage therapists shall comply with the requirements of the massage therapy act, chapter 10.5 (commencing with section 4600) of division 2 of the California Business And Professions Code pertaining to certification of massage therapists and massage practitioners. (Ord. 2017-01, 2-7-2017)

As a condition of the massage establishment permit, any and all investigating officials of the city of Lemoore, the county of Kings, and the state of California, shall have the right to enter massage establishments during regular business hours to conduct reasonable inspections to observe and enforce compliance with the provisions of this chapter, as well as any other applicable requirements, including, but not limited to, building, fire, planning and health requirements. (Ord. 2017-01, 2-7-2017)

Massage services shall not be made available to clients at hot tub, sauna, or tanning establishments unless the establishment holds a valid massage establishment permit. Hot tub, sauna, or tanning establishments, which offer massage services, must comply with all provisions of this chapter. Massage services shall not be given in any room or areas in which a hot tub, sauna, shower or jacuzzi is located, or in wet and dry heating rooms, tanning rooms, steam or vapor rooms, cabinets or bathrooms. (Ord. 2017-01, 2-7-2017)

A. Permit: No person shall provide outcall massage services without an outcall massage business permit as required by this chapter.

B. Recordkeeping: Any person performing outcall massage services shall maintain written records, at the massage therapist's principal place of business, of all outcall massage services performed. These records shall be retained for at least two (2) years beyond the date services were provided. Record shall be made of each appointment at which massage services were provided and shall include:

• 1. Date and time;
• 2. Patron's full name and address;
• 3. Address where services were provided;
• 4. Name of the massage therapist providing services.

C. Inspection Of Records: These records shall be open to inspection upon request only by officials charged with enforcement of this chapter or emergency medical personnel. Information within these records shall only be used to ensure compliance with this chapter, or any other applicable state or federal laws, or as necessary in providing emergency medical treatment, and shall remain confidential.

D. No Outcall Services On Premises Owned By Therapist: Outcall massage services shall not be provided at any location owned, leased, rented or under the control of the massage therapist, including residential dwellings and business offices, unless that location is licensed as a massage establishment or is otherwise exempted as provided in this chapter. (Ord. 2017-01, 2-7-2017)

A. Criminal Proceedings: Any person who violates a provision of this chapter shall be guilty of a misdemeanor unless the city attorney elects to prosecute the violation as an infraction.

B. Injunction And Abatement: Nothing in this chapter shall be deemed to prevent the city of Lemoore from commencing a civil action to enjoin the continued violation of any provision of this chapter or to abate a nuisance, as an alternative, or in conjunction with any other civil or criminal proceeding. (Ord. 2017-01, 2-7-2017)