Madera County Municipal Code Ch. 9.12 Massage Establishments

Government Code Sections 51030, et seq., Business and Professions Code Sections 460 and 4600 et seq., and Section 7 of Article XI of the California Constitution provide authority for the legislative bodies of California counties to license and regulate the business of massage. In enacting this chapter, the board of supervisors recognizes that massage is a viable professional field offering the public health and therapeutic services. However, there are known instances, both within and outside the county, 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. No. 686, § 1, 9-5-17).

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" means 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.

"For compensation" means 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" means any employee of a massage establishment who has responsibility for supervising, directing, or assigning work to massage therapists.

"Massage" means 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" means 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" means any person who, for any type of compensation, practices massage.

"Operator" means any individual who has any ownership interest in the massage establishment, or who is responsible for the day-to-day activities of a massage establishment.

"Out call massage" means providing massage services for compensation at a location other than at a permitted massage establishment.

"Permit" means a written document authorizing the holder to engage in the business specified in the document. Two types of permits are issued pursuant to this chapter: Establishment permits and out call massage business permits.

"Permitee" means a person or entity holding a permit under this chapter.

"Sheriff" means the sheriff of Madera County, or his/her designee.

(Ord. No. 686, § 1, 9-5-17).

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. Out Call Massage Business Permit. It is unlawful for any person to provide out call massage services without a valid out call massage business permit.

C. Certification. It is unlawful for any person other than a certified massage therapist to provide massage services within the county unless exempted as provided in this chapter.

(Ord. No. 686, § 1, 9-5-17).

The premises and property on which the premises occupied by a massage establishment are located must conform to all applicable land use and zoning requirements.

(Ord. No. 686, § 1, 9-5-17).

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, esthetician, manicurist, electrologist, apprentice barber, or cosmetology instructor licensed under the California Barbering and Cosmetology Act (Business and Professions Code Section 7301 et seq.).

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 (c) 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.

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 is a certified massage therapist 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 a certified massage therapist;

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. No. 686, § 1, 9-5-17).

Written application for an establishment permit or out call massage business permit required by this chapter shall be filed with the sheriff. Upon approval of the permit by the sheriff, the applicant must also obtain a business license, pursuant to Chapter 5.04 of this Code, and pay applicable license fees.

The following information 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 years preceding the date of the application.

C. Prior Business and Employment History. Business, occupation or employment history of the applicant for the five 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 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 non-traffic-related misdemeanors, unless the applicant is also a certified massage therapist.

F. Fingerprints and Photograph. Applicants shall be fingerprinted and photographed; unless the applicant is also a certified massage therapist.

G. 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 (California Penal Code Sections 11225 through 11235) or any similar abatement laws, whether in California or other jurisdictions.

H. Other Information. Any other information as required by the sheriff. In addition to the information required above, an applicant for an establishment permit must also provide:

I. 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.

J. 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.

K. 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 months preceding the date of the application.

(Ord. No. 686, § 1, 9-5-17).

Certified massage therapists must register with the sheriff's office 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 "out call massage" as defined in Section 9.12.02(h), and evidence of certification from the CAMTC. There is no charge for the registration.

Certified massage therapists shall update their registration within ten days of any changes and shall maintain on file with the sheriff's office a current copy of their CAMTC certificate.

(Ord. No. 686, § 1, 9-5-17).

Permits issued under this chapter shall be renewed every two years as set forth in Section 9.12.12.

Permittees and certified massage therapist registrants working as independent contractors of a massage establishment shall at all times maintain an active business license with the County of Madera.

Permittees shall notify the sheriff of the following within ten calendar days after they occur: (1) any change of home address, change in home or work telephone number, or change in location of business.

(Ord. No. 686, § 1, 9-5-17).

Fees for each establishment permit and out call massage business permit shall be paid to the Madera County Sheriff's Office at the time the application is submitted and are nonrefundable. Fee amounts shall be approved by the board of supervisors.

(Ord. No. 686, § 1, 9-5-17).

A. Time to Act. The sheriff shall either issue or deny a permit within sixty calendar days following receipt of a completed application for an establishment permit or out call massage business permit. In taking such action, the sheriff shall consider the recommendations of county officials investigating the application, along with any other relevant information.

B. The sheriff's department shall conduct such investigation of the background of the owner or owners and persons managing or supervising the massage enterprise as is deemed appropriate. The sheriff shall evaluate each application to determine whether the operation of the enterprise would involve an unreasonable risk to the health, safety, or general welfare of the public. Consideration shall be given to the criminal record, if any, and character of the owner and other persons connected with the enterprise, the business responsibility of the firm and the owner, and the manner in which the owner intends to conduct the enterprise.

C. Conditions of Approval. If a permit is approved, the sheriff 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. Upon approval or denial of a permit, the sheriff 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 hand-delivered or sent by certified mail to the applicant.

(Ord. No. 686, § 1, 9-5-17).

A. Issuance After Approval. Following the approval of a permit and the lapse of a fifteen calendar day appeal period, the sheriff shall issue a permit.

B. Term of Permit. All permits shall be for a term of two calendar years from the date of issuance. All permits automatically expire at the end of the term unless renewed prior to that time.

C. Renewal. Applications for permit renewal shall be filed with the sheriff not later than forty-five days prior to expiration of the term of an existing permit, accompanied by payment of the permit fee established at Section 9.12.09. The application for renewal shall contain the same information required by Section 9.12.06, updated to reflect changes in the preceding two years. The denial or renewal of an establishment permit shall be evaluated in the same manner as the initial granting of a 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. No. 686A, § 1, 2-16-21; Ord. No. 686, § 1, 9-5-17).

A. Revocation for Cause: Notice of Revocation. The sheriff may revoke an establishment permit or out call massage business permit for good cause. Before the sheriff revokes a permit, the sheriff shall provide written notice of the revocation by personal delivery or certified mail. The notice shall provide for revocation of the permit fifteen 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 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 9.12.13. If an appeal is filed, the board 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 sheriff shall be stayed pending a decision by the board.

D. Effect of no Appeal: Final Decision. If after the passage of fifteen calendar days from service of the revocation notice the permittee has not requested an appeal, the revocation decision of the sheriff 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 an out call massage service, 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 massage 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. No. 686, § 1, 9-5-17).

Any refusal by the sheriff to issue a permit, refusal to renew an existing permit, or revocation of an existing permit is appealable to the board of supervisors. The appeal must be filed with the clerk of the board of supervisors within fifteen calendar days following service of the sheriff's written decision, after which time the decision of the sheriff becomes final.

(Ord. No. 686, § 1, 9-5-17).

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. No. 686, § 1, 9-5-17).

Every person holding a permit shall notify the sheriff, in writing, of the name and residence of each person employed as a massage therapist within five days of the start of employment.

(Ord. No. 686, § 1, 9-5-17).

The provisions of this chapter shall be applicable to all persons, establishments, and enterprises described herein whether the described activities enterprises were established before or after the effective date of the ordinance codified in this chapter, except that massage establishments legally performing massage prior to the effective date hereof shall have one hundred eighty days to comply with the terms hereof.

(Ord. No. 686, § 1, 9-5-17).

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. No. 686, § 1, 9-5-17).

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

A. Maintenance of Permits. A copy of the establishment permit and each 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 or certificate holder shall be affixed to each massage therapist's permit or certificate.

B. 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.

C. 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 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.

D. Alcohol and Marijuana Prohibited. No alcoholic beverages or 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.

E. 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 (but not limited to) the sheriff and his/her designee(s). These records shall be retained for a period of at least two years.

F. Advertising. No services shall be offered in signs, posters, flyers, newspapers or other printed advertisements, or in verbal or recorded announcements or messages, other than those lawfully permitted and posted as required in subsection (b) 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.

G. 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.

H. 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.

(Ord. No. 686, § 1, 9-5-17).

As a condition of the massage establishment permit, any and all investigating officials of the County of Madera, 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. No. 686, § 1, 9-5-17).

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. No. 686, § 1, 9-5-17).

A. Permit. No person shall perform out call massage in the county without an out call massage business permit as required by this chapter.

B. Recordkeeping. Any person performing out call massage services shall maintain written records, at the massage therapist's principal place of business, of all out call massage services performed. These records shall be retained for at least two 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; and

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 Out Call Services on Premises Owned by Therapist. Out call 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.

E. Advertising. No services shall be offered in signs, posters, flyers, newspapers or other printed advertisements, or in verbal or recorded announcements or messages, other than those lawfully permitted. 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.

F. Compliance with SB 577. 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.

(Ord. No. 686, § 1, 9-5-17).

A. Criminal Proceedings. Violation of any of the provisions of this chapter, or any act that would constitute a violation of the provisions of Division 2, Chapter 10.5, of the Business and Professions Code, by the owner or manager of a massage establishment, by a massage provider, or by any person providing massage services at or through a massage establishment or out call massage business, shall constitute a misdemeanor for each day or any portion thereof on which a violation occurs or continues and shall be subject to the penalties set forth in Title 1, Chapter 1.12 of the Madera County Code.

B. Injunction and Abatement. Nothing in this chapter shall be deemed to prevent the County of Madera 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. No. 686, § 1, 9-5-17).