Chapter 5.36 — MASSAGE ESTABLISHMENT AND MASSAGE THERAPISTS

In enacting this chapter the Oakland City Council recognizes that massage is a viable professional field that offers the public valuable health and therapeutic services. The Council further recognizes that regulating massage and the operation of massage establishments reduces the potential for unlawful activities and exploitation that may threaten individuals practicing massage and the quality of life in our neighborhoods.

It is the purpose and intent of this chapter to provide minimum fire, sanitation, health and safety standards for massage establishments in the city, and to ensure that persons employed as massage therapists meet minimum training standards and are protected from being exploited to perform nonmassage services.

It is the intent of the City Council that this chapter apply to any business, location or individual that provides massage services regardless of the business name or individual's title or position. It is also the intent of the City Council that the person, business or entity holding a massage establishment permit be responsible for all activity that occurs on the establishment's premises whether the activity is offered or conducted by the business, the business owner(s), an employee, an independent contractor, an assistant, a sole practitioner, a lessee, sub-lessee or a separate business.

(Ord. 12675 § 4 (part), 2005)

As used in this chapter:

"Applicant" is the individual or individuals applying for the massage establishment, massage therapist or massage therapist trainee permit. Only an owner or owners of a massage establishment may apply for a massage establishment permit.

"Chair massage" means massage given to a person who is fully clothed and sitting upright on a professional bodywork seat, a stool or office seat, wheelchair, or other chair-like device.

"Disqualifying offense" means any offense which disqualifies an applicant from obtaining a permit pursuant to this chapter or which mandates revocation of the permit if the offender already holds a permit. Disqualifying offenses are:

Conviction, plea of nolo contendere, plea bargain, or forfeiture on a charge of violating Section 243.4, 266, 266(a)—266(k), 314, 315, 316, 318 or Section 647(B) of the Penal Code of the State of California;

Requirement to register under the provisions of Section 290 of the Penal Code of the State of California;

Conviction, plea of nolo contendere, plea bargain, or forfeiture pertaining to any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code of the state of California;

Violation of any provision of this chapter that has resulted in a suspension or revocation of any permit issued under chapter, or violation of a similar law in any other jurisdiction, within the past five years that has resulted in a suspension or revocation of a permit under that law;

Conviction, plea of nolo contendere, plea bargain, or forfeiture on a charge of committing a violent crime or a crime of dishonesty, fraud or deceit with an intent to substantially injure another;

Conviction, plea of nolo contendere, plea bargain, or forfeiture on a charge of human trafficking in violation of United States Code Title 18, Chapter 77, Sections 1590, 1591 or 1592; or

Making a false statement on a permit application.

"Employee" means anyone other than the owner or owners of a massage establishment or the massage therapists or massage therapist trainees that renders service to the permittee and receives direct

compensation from that permittee but who does not provide massage services.

"Erogenous areas" means the genitals, the nipples, the areolas, and/or the anus.

"Home occupation solo practitioner" means a massage therapist that practices massage within his or her own residence or on an out-call massage basis. All home occupation solo practitioners are subject to the requirements for home occupation businesses under Section 5.36.070 and no more than two massage therapists may operate as home occupation solo practitioners in any single residence.

"Human trafficking" means all human trafficking activities defined under the Trafficking Victims Protection Act of 2000 and any activities that are defined as violations under United States Code Title 18, Chapter 77, Sections 1590, 1591 and 1592.

"Incidental service" means that no more than 25 percent of the business' revenue is derived from massage nor more than 25 percent of the floor space is devoted to massage.

"Manager" or "Operator" means the individual or individuals appointed by the owner or owners of a massage establishment that are clearly designated in the employee register as having authority and responsibility to supervise employee(s), massage therapists or massage therapist trainees.

"Massage" means any method of pressure on or friction against the soft parts of the human body, whether clothed or unclothed, including but not limited to stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating with hands or with the aid of a mechanical electrical apparatus or appliance, with or without supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments, hot or cold packs, or other similar preparations commonly used in massage practice. Types of massage may include, but are not limited to activities commonly known as massage therapy, bodywork, acupressure, reflexology, deep tissue touch, and shiatsu release.

"Massage establishment(s)" means any establishment having a fixed place of business where any person, firm, association, or corporation engages in, permits to be engaged in or carries on any of the activities mentioned in this chapter. Any establishment engaged in, permitted to be engaged in or carrying on any combination of massage and bath house or other activity mentioned in this chapter shall be deemed a massage establishment.

"Massage therapist" means any person who, for any consideration whatsoever, engages in the practice of massage as herein defined, whether in a massage establishment within the city, in their residence or on an out-call basis anywhere within the city.

"Massage therapist trainee" means any person enrolled in a "recognized school" that has not completed three-hundred (300) hours of coursework at a recognized school.

"Non-massage business" means a business in which the practice of massage is not the principal activity of the business but is an incidental service and subordinate to the principal activity.

"Out-call massage service" means any business that provides, refers or otherwise facilitates massage for any consideration at a nonfixed location. Any such business is not required to obtain a permit as a massage establishment under the provisions of this chapter.

"Owner" of a massage establishment, or an out-call massage service, means any person, firm association, corporation, limited partnership, limited liability company or any other entity that operates, maintains, or permits a massage establishment or out-call massage service. To the extent the "owner" is any type of association, partnership, corporation or other entity, "owner" includes all publicly named or registered persons, officers, directors, managers and shareholders within those entities. Where the "owner" is one or more persons, each such person is jointly and severally liable for compliance with this chapter. Only the "owner" of a massage establishment can hold the massage establishment permit.

"Patron" means any individual who pays or gives any consideration in exchange for massage services.

"Permitee" means the holder of the massage establishment, massage therapist, or massage therapist trainee permit.

"Public nuisance" shall be defined by state law. A violation of Sections 5.36.100, 5.36.160, 5.36.190 or 5.36.250 shall also be considered a public nuisance.

"Recognized school" means a school of massage, recognized by the state of California which: (i) teaches the theory, ethics, practice, profession and work of massage; and (ii) requires a residence course of study to be given and completed before the student is furnished with a diploma or certificate of learning or completion; and (iii) has been approved by the state of California Consumer Affairs Bureau pursuant to Section 94915 of the Education Code, or, if said school is not located in California, has complied with the standards commensurate with those specified in said Section 94915, or a school of equal or greater training that is approved by the corresponding agency in another state, or accredited by an agency recognized by the United States Department of Education.

"Unrecognized school" means any school of massage that does not meet the definition of "recognized school" but teaches or purports to teach the theory, ethics, practice, profession or work of massage.

(Ord. No. 12914, § 1, 2-17-2009; Ord. 12675 § 4 (part), 2005)

A.

Massage Establishments. Massage establishment permits required by this chapter shall not apply to or include the following:

Licensed hospitals, nursing homes, and sanitariums;

Recognized schools of massage;

Duly licensed athletic facilities;

Medical facilities in which massage is performed as prescribed treatment only on patients of the medical facility;

Residences of home occupation solo practitioners;

Barbershops and beauty shops provided that any massage services performed or provided are incidental or accessory and within the scope of any barber's or beautician's state of California license;

Businesses where only chair massage is performed, and it is performed in public view; or

Offices leased by solo practitioners for the practice of massage.

Non-massage businesses that lease space to a solo practitioner for therapeutic massage or that offer therapeutic massage as an incidental service.

B.

Massage Therapists. Individuals that conduct massage in facilities exempt from massage establishment permit requirements are required to have massage therapist permits, except as provided below:

Persons holding a valid certificate to practice the healing arts under the laws of the state of California including, but not limited to, holders of medical degrees such as physicians, surgeons, chiropractors, osteopaths, naturopaths, podiatrists, acupuncturists, physical therapists, registered nurses and vocational nurses;

Students in training at a recognized school of massage where the student performs massage only under the direct personal supervision of an instructor certified by the California Department of Consumer Affairs Bureau for private post secondary and vocational education; or

Barbers and beauticians licensed under the laws of the state of California to provide massages to the neck, face, scalp, feet (up to the ankle), or hands (up to the wrists) while engaging in practices within the scope of their licenses.

C.

Massage as an Incidental or Accessory Activity. Businesses that offer massage as an incidental or accessory service to their primary business services offered, as determined by the City Administrator, shall be required to comply with all provisions of this chapter, except that they shall be exempt from any requirements under this chapter that applies to employees or advertisements.

(Ord. No. 12914, § 1, 2-17-2009; Ord. 12675 § 4 (part), 2005)

A fee shall be payable to the city, as set forth in the Master Fee Schedule, for any permit issued, or renewed under this chapter. A fee shall also be payable to the city, as set forth in the Master Fee Schedule for any inspections, reinspections, investigations, and reinvestigations required pursuant to this chapter.

(Ord. 12675 § 4 (part), 2005)

All permits under this chapter are not transferable or assignable. Any massage establishment permit issued under this chapter shall not apply to any premises other than those originally specified in the massage therapist establishment permit.

(Ord. 12675 § 4 (part), 2005)

Massage establishments shall not be permitted to use the facilities or premises of a recognized school or unrecognized of massage in connection with the operation of a massage establishment.

Students training at a recognized school or unrecognized school of massage may perform a massage on a member of the general public on school premises if each of the following conditions is satisfied:

A.

The school is approved by the California Department of Consumer Affairs Bureau for private post secondary and vocational education;

B.

The school offers a massage curriculum requiring at least one hundred twenty-five (125) hours of classroom instruction; and

C.

The student performs the massage only under the direct supervision of an instructor certified by the California Department of Consumer Affairs Bureau for private post secondary and vocational education.

(Ord. 12675 § 4 (part), 2005)

A.

Massage Therapist Permit Required. All home occupation solo practitioners must obtain a massage therapist permit before providing any massage services within his or her own residence or on an out-call massage basis. A massage therapist trainee permit is not a valid permit for home occupation solo practitioners.

B.

Limitations on number of home occupation solo practitioners per residence. No more than two massage therapists may operate as home occupation solo practitioners in any single residence.

C.

Requirements. Home occupation solo practitioners shall be regulated under this chapter and shall not be subject to the requirements of Chapter 17.112, "Home Occupation Regulations." All home occupation solo practitioners must comply with each of the following requirements:

Location. Other than on an out-call massage service basis, home occupation solo practitioners shall only operate within their residence, or within a garage which is attached to, and reserved for, such a living unit. When massage services are conducted within a garage, the doors thereof shall be closed.

Employees. No person other than the massage therapist shall be employed in the conduct of the home occupation solo practitioner.

Vehicular Storage. No commercial or passenger vehicle advertising or otherwise identifying the home occupation shall be parked on any portion of the lot containing the home occupation where it is visible by the average person at or beyond any lot line of the lot containing the home occupation.

Traffic Generation. The home occupation shall not generate pedestrian or vehicular traffic substantially greater than that normally generated by residential activities in the surrounding area.

Nuisances. The home occupation shall be conducted so as not to be a public nuisance, as defined by state law, to the average person at or beyond any lot line of the lot containing the home occupation.

D.

Application Process. Home occupation solo practitioners must obtain massage therapist permits pursuant to Section 5.36.210.

(Ord. 12675 § 4 (part), 2005)

A.

Valid Permit Required. It is unlawful and in violation of this chapter for any person, firm, association, corporation, limited partnership, limited liability company or other entity to own, operate, engage in, conduct, permit, or carry on in any way, a massage establishment without a valid permit granted in compliance with the provisions of this chapter.

B.

Single Permit for Each Location. Only one massage establishment permit shall be granted for each fixed location where any of the activities in this chapter occur. The owner of the massage establishment, as defined in this chapter, shall hold the massage establishment permit.

C.

Permits Not Issued if Disqualifying Offenses Committed. A massage establishment permit shall not be issued to any massage establishment where any owner(s), operator(s), employee(s), massage therapist, massage therapist trainee or any other individual associated with the massage establishment has committed a disqualifying offense as defined in Section 5.36.020.

(Ord. 12675 § 4 (part), 2005)

All massage establishment permit applications shall describe the exact nature of any massage that may be administered at the massage establishment and shall set forth the following information:

A.

A full identification of the applicant and all persons to be directly or indirectly interested in the permit if granted;

B.

Official government issued identification that proves the applicant is at least eighteen (18) years of age;

C.

The residence and business address and the citizenship of the applicant and if the applicant is any type of association, partnership, corporation or other entity, the residence and business address and the citizenship of all publicly named or registered persons, officers, directors, managers and shareholders within those entities;

D.

If the applicant is an entity, such as a corporation, the name of the entity as shown in its articles of incorporation or other formation documents;

E.

Any criminal convictions, except minor traffic violations, all pending criminal matters, any plea bargains, pleas of nolo contendere, forfeitures on charges and all actual or pending tax judgments of applicant(s);

F.

The location of the proposed massage establishment, and the name of the owner and the present use of such premises;

G.

The applicable zoning;

H.

The name under which the massage establishment is to be operated;

I.

The past experience of the applicant in owning, operating, managing or working in massage establishments; and the name, address, and past experience of the person(s) who will be in charge of, manage or operate the massage establishment;

J.

If applicable, information on any previous permit revocations including the circumstances of such revocation in any jurisdiction;

K.

The number of persons currently employed or intended to be employed therein as massage therapists, massage therapist trainees and employees, the names and residence addresses of all persons currently or intended to be employed, regardless of the nature of the employment and for employees, the nature of the work performed or to be performed and recent passport-sized photograph of each employee or intended employee;

L.

Evidence that all employees have been screened and background checks have been conducted to ensure that no employee has committed a disqualifying offense;

M.

A written statement that neither the applicant nor any persons to be directly or indirectly interested in the permit if granted have knowingly made any false, misleading, or fraudulent statement of facts in the application for the permit or in any other document required by the city of Oakland in conjunction therewith.

N.

The number of fire escapes;

O.

Such further or other information as may be required by the Fire Marshall, the Chief of Police, the Building Code and Housing Inspectors in connection with their determination as to compliance with applicable codes and laws;

P.

The fingerprints and photographs of the applicant(s);

Q.

Certification under penalty of perjury that the Applicant has not committed a disqualifying offense as defined by Section 5.36.020;

R.

In the event that the applicant is not the legal owner of the property where the massage establishment is proposed to be located, the application must be accompanied by a copy of the lease, a letter of intent to lease or a rental agreement for the property;

S.

Such further information as the City Administrator, or such official of the city to whom the application may be referred, may require; and,

T.

The applicant(s) shall review, sign, and date a form provided by the City Administrator, certifying that he or she: (a) has received a copy of this chapter; (b) understands its contents; and (c) understands and accepts duties and responsibilities provided in this chapter.

The City Administrator must have this information in a completed application form on file before considering issuing or renewing a massage establishment permit.

(Ord. 12675 § 4 (part), 2005)

Massage establishments must comply with all the following requirements before a permit may be issued:

A.

Distance Requirements. The proposed location of the massage establishment is not within one thousand (1,000) feet of a public or private school or a public library or youth center (serving youth 18 and under), or city park, park and recreation facility or another massage establishment.

B.

Zone. The proposed massage establishment must be located in a commercial, industrial or manufacturing zone, or its equivalent as may be amended.

C.

Health and Safety Codes. The proposed massage establishment premises must comply with all applicable building, fire safety, health, electrical, plumbing, mechanical, heating and ventilating, sanitation, and other laws applicable to said premises.

D.

Physical Requirements. The proposed massage establishment(s) must comply with all the following requirements:

All massage establishments shall provide on the premises at least one toilet room and at least one toilet room for each sex if the establishment serves both sexes simultaneously. All toilet rooms shall be equipped with a self-closing door.

All massage establishments shall provide wash basins in each toilet room, or vestibule, and in each massage room or cubicle. Each wash basin shall be equipped with hot and cold running water, soap in a dispenser and sanitary towels.

Physical requirements for toilet rooms or rooms containing bathtubs or shower areas. Toilet rooms or rooms containing bathtubs or shower areas in massage establishments shall meet the following requirements:

a.

Floors shall have a smooth, hard, nonabsorbent surface such as portland cement, concrete, ceramic tile, or other approved material which extends upwards onto the walls at least five inches.

b.

Walls of water closet compartments or rooms containing bathtubs shall be finished as specified under subsection (E)(1) of this section to a height of not less than four feet.

c.

Shower areas shall be finished as specified in subsection (E)(1) of this section to a height of not less than six feet.

Massage establishment steam rooms shall meet the following requirements:

a.

Steam rooms shall have floors, walls and ceilings finished with a smooth, hard, nonabsorbent surface such as portland cement, concrete, ceramic tile, or other approved material.

b.

Floors of wet and dry heat rooms shall be adequately pitched to one or more floor drains properly connected to the sanitary sewer.

c.

Hot water shall be available within the immediate vicinity of the wet and dry heat rooms to facilitate cleaning.

All massage establishments shall have a utility room on the premises equipped with a utility sink and a storage facility for cleaning compounds and equipment.

All massage establishments shall have a reception area within ten feet of the front door that directly serves massage service rooms, steam rooms, offices, or group of offices as an extension of the activities in those rooms. All reception areas shall have a window.

The walls of a massage establishment shall be clean and painted with an approved washable mold- resistant paint in all rooms where water or steam baths are given.

Adequate light and ventilation shall be provided by means of windows or skylights with an area of not less than one-eighth of the total floor area or by means of artificial light and a mechanical operating ventilating system. When windows or skylights are used for ventilation, at least one-half of total window area shall be capable of being opened. The height of partitions in rooms and areas serviced directly by a required window, skylight, or mechanical system of ventilation, shall not exceed three-fourths of the height of the room in which they are placed.

Room or cubicle where massage is administered shall have lighting equivalent to a minimum of ten footcandles as measured at surface of the massage table, at all times of occupancy.

Massage establishment permits shall be displayed in a conspicuous place on the premises, together with the permits of each massage therapists and trainees performing service on said premises.

E.

Exceptions. A massage establishment permit may be issued to applicants that do not meet the requirements of this section if the City Administrator makes written findings that:

The massage establishment was granted a conditional use permit (CUP) for operating a massage establishment;

The massage establishment will not have an impact on public safety or neighborhood quality of life; or

Compliance with the requirements of this section would place an undue financial burden on or would be physically infeasible for existing establishments. The burden is on the applicant to provide sufficient evidence to demonstrate either an undue financial burden or physical infeasibility.

(Ord. 12675 § 4 (part), 2005)

The provisions of this chapter, with the exception of the distance requirements and zoning requirements in Section 5.36.100, shall apply to any existing establishment having a fixed place of business where any person, firm, association, or corporation engages in, permits to be engaged in or carries on any of the activities mentioned in this chapter, including any combination of massage and bath house. Existing establishments must comply with the terms of this chapter within one hundred and twenty (120) days or for previously permitted massage establishment, upon renewal of their massage establishment permits or within sixty (60) days, whichever is later.

(Ord. 12675 § 4 (part), 2005)

Massage Establishment permits shall contain a description of the exact nature of any massage authorized to be administered at the massage establishment, the name of the massage establishment, the name of the owner(s) of the massage establishment, the location of massage establishment authorized by the permit, any conditions imposed on the permit, the date the permit was issued, and the date the permit expires.

(Ord. 12675 § 4 (part), 2005)

Any massage establishment permit required under the provisions of this chapter shall be exhibited in a conspicuous place where the public has access on the premises where the permit applies.

(Ord. 12675 § 4 (part), 2005)

All massage establishment permits shall be valid for one year from the date of issuance and must be renewed annually. The applicant is responsible for initiating and completing the renewal process. The

applicant and the City Administrator in renewing a permit shall be governed by the same provisions as are applicable to issuance of new permits.

(Ord. 12675 § 4 (part), 2005)

It shall be the responsibility of the owner(s) of any massage establishment to ensure that each person employed as massage therapist shall have in his or her possession a valid massage therapist permit as set forth in this chapter.

Any violation of this chapter by a massage therapist, massage therapist trainee, operator, manager or employee on the premises of a massage establishment shall be considered also as a violation by the owner.

(Ord. 12675 § 4 (part), 2005)

All massage establishments must comply with the following operating requirements:

A.

Hours of Operation. Massage establishments shall only offer Massage services between the hours of 7:00 a.m. and 10:00 p.m. and no patrons for massage services shall be allowed on the premises after 10:00 p.m. or before 7:00 a.m. Pacific Standard Time.

B.

Massage Therapists and Trainees. Massage therapists and trainees shall be required to wash their hands before administering a massage. All massage therapists and trainees working on the premises shall be free of any communicable disease. Instruments for massage shall be sanitized before each use by approved sanitization methods.

Massage therapists and trainees shall wear clean outer garments whose use is restricted to the massage establishment at all times while on the premises. All employees and other persons working on the premises shall be fully clothed at all times. All outer garments and other clothing required under this section shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid thigh to two inches below the collarbone. The midriff may not be exposed.

All massage therapists and massage therapist trainees shall carry on his or her person at all times during business operations and be able to produce upon request an identification badge with their name, photograph, and permit number and expiration date thereof. The city shall issue such badges to permittees.

C.

Personnel Register and Daily Log. Owners of massage establishments shall maintain a personnel register, approved as to form by the City Administrator, that contains the names and permit numbers of the

massage therapists and massage therapist trainees performing massages on the premises, along with a description of the services performed and the names any other employee or person retained or working on the premises.

Owners of massage establishments shall maintain a daily log, approved as to form by the City Administrator that includes the names of the massage therapist(s) or massage therapist trainee(s) performing massage on the premises for that day, the hours they worked during that day, and a list of services they performed that day. The daily log shall also include the name and job title of every other employee or person retained or working on the premises that day and the services they performed that were performed. The daily log shall be completed by the close of business every day.

The personnel register shall identify clearly the manager(s) and/or operator(s) of the massage establishment, as designated by the owner(s), and the daily log shall identify clearly which manager(s) and/or operator(s) is responsible for the massage establishment on each day.

The personnel register and daily log shall be available for inspection by the city of Oakland at all times during regular business hours and shall be kept on file for one year. Failure to maintain either the personnel register or log in accordance with this section shall be a violation of this chapter.

D.

Hiring New Employees. Permittees shall provide the city of Oakland with written notice, including the names, addresses and photographs, of any new massage therapists, massage therapist trainees, employees or other persons working or performing services on the massage establishment premises. The notice shall be provided to the city before the first day of employment and the city shall be allowed, to require a background check of anyone listed in the notification for identification purposes.

E.

Client Register. Every massage establishment shall keep a client register, approved as to form by the City Administrator, that lists all patrons, their names, addresses, dates and times of massages including their arrival and departure time, the name of the patron's massage therapist or massage therapist trainee, the type of service obtained, including the room or cubicle where it was performed and the fee paid. The client register shall be updated by the close of business every day. The client register shall be available for inspection by the city of Oakland at all times during regular business hours. This record shall be considered confidential, not for public review, and may be inspected by the city of Oakland only as part of a criminal investigation or during proceedings to suspend or revoke a permit under this chapter. This record shall be kept on file for one year.

F.

Sanitation. All massage establishments shall be provided with clean, laundered sheets and towels, in sufficient quantity, which shall be laundered after each use, and stored in a sanitary manner on the premises. Heavy white paper may be substituted for linen. Linen substitute cannot be used more than once.

All portions of the massage establishment premises shall be kept in a clean and sanitary condition.

No towel or sheet shall be laundered or dried in any massage establishment unless such establishment is provided with approved laundry facilities for laundering and drying. The massage establishment permittee shall provide approved receptacles for the storage of soiled linens and approved refuse containers for the disposal of paper towels and other waste material.

Wet and dry heat rooms, shower compartments, and toilet rooms, shall be disinfected at least once each business day. Bathtubs shall be disinfected after each use.

Pads on massage tables shall be made of durable, waterproof material.

G.

Prohibition of Door Locks for Massage Rooms. No Massage activity may occur in any cubicle, room, booth or area that is fitted with a door capable of being locked.

H.

Requirements for Entry Doors. Secondary security doors at the entrance of the business shall remain unlocked during business hours.

I.

Massage Services Posted. Every service offered by a massage establishment, including the price and minimum length of time to perform the service, shall be posted in a conspicuous place where the public has access. No services shall be performed and no consideration shall be given for any service(s) not posted. Only services that are legitimate recognized massage functions shall be performed, offered to be performed, solicited or in any other way made available.

J.

Advertisements. All advertisements for massage establishments shall reflect the professional nonsexual nature of the business. No massage establishment shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that would reasonably suggest to prospective patrons that any service is available other than services described in this chapter.

K.

Payments and Tips. All massage services shall be paid for in the reception area, and all tips, if any, shall be paid in the reception area.

L.

Prohibition Against Residence. No person(s) shall reside on or within the premises of a massage establishment.

M.

Prohibition Against Warning Devices. Massage establishments are prohibited from having any device that can be utilized as an early warning system to alert persons present at the massage establishment to the presence of law enforcement officers, city authorities, or county authorities on the premises. Said devices

include, but are not limited to, light or music dimmers, electronic detection devices, external or internal video equipment and alarm systems other than those used for fire and security alarms.

(Ord. 12675 § 4 (part), 2005)

City or county employees charged with the enforcement of this chapter may enter the premises of any massage establishment during regular business hours as may be necessary in performance of their duties. If the owner, operator, manager or any person in charge of the massage establishment refuses voluntarily to consent to the entry of any such employee or any inspection thereunder, an inspectional warrant as authorized by state law shall be utilized.

(Ord. 12675 § 4 (part), 2005)

A.

Valid Permit Required. It is unlawful and in violation of this chapter for any person to conduct, perform, carry out, engage in or give a massage without a valid massage therapist permit granted in compliance with the provisions of this chapter. This includes individuals that conduct massage in facilities exempt from massage establishment permit requirements pursuant to Section 5.36.030 of this chapter.

B.

Permits Not Issued if Disqualifying Offenses Committed. A massage therapist permit may not be issued to any person who has committed a disqualifying offense as defined in Section 5.36.020.

C.

Prohibition from Applying for or Obtaining Permits. Any individual conducting, performing, carrying out, engaging in or giving a massage without a valid massage therapist permit shall be prohibited from applying for or obtaining any permit under this chapter for five years from the date of violation(s).

(Ord. 12675 § 4 (part), 2005)

Massage therapist applicants must provide the City Administrator with evidence that they possess at least two of the following minimum qualifications before a permit may be issued:

A.

An original copy of a diploma, certificate or academic transcript that demonstrates completion of three hundred (300) hours of in-class instruction from a recognized school;

B.

Satisfactory passage of the National Certification Exam for Therapeutic Massage or Bodywork;

C.

Membership in good standing in a National Professional Massage Organization or Association that requires its member to have the following:

Substantiation of at least one hundred (100) hours of massage training or education;

Possession of practitioner's liability insurance coverage in the minimum amount of one million dollars ($1,000,000.00) per event;

Adherence to a code of ethics; and

Renewal of membership at a minimum of once every two years.

(Ord. 12675 § 4 (part), 2005)

A.

Eligibility. Any person currently enrolled in a recognized school, as defined in this chapter, may after successfully completing one hundred (100) hours of instruction at a recognized school or combination of recognized schools, be issued a massage therapist trainee permit. This permit allows massage therapist trainees to perform massage services under the direct supervision of a massage therapist permittee.

B.

Application. Applicants for a massage therapist trainee permit must complete the application form for massage therapist permit and abide by the massage therapist operating requirements in Section 5.36.250. Applicants must also submit a letter signed by the director or administrator of the recognized school showing the date the applicant started school and the applicant's estimated date of graduation.

C.

Expiration. Massage therapist trainee permits expire one hundred and twenty (120) days after issuance and are not renewable.

D.

Permits Not Issued if Disqualifying Offenses Committed. A massage therapist trainee permit may not be issued to any person who has committed a disqualifying offense as described in Section 5.36.020.

E.

Prohibition from Applying for or Obtaining Permits. Any massage therapist trainee permittee that violates any provision in this chapter shall be prohibited from applying for or obtaining any permit under this chapter for five years from the date of violation(s).

(Ord. 12675 § 4 (part), 2005)

occupation solo practitioners.

The application for massage therapist and massage therapist trainee permit shall contain the following information:

A.

If the applicant is a U.S. citizen, his or her social security number, driver's license number, birth certificate, and U.S. passport with the accompanying original documents to be verified and copied by the City Administrator;

B.

If the applicant is not a U.S. citizen, his or her original INS documents, passport, and all other immigration documents to be verified and copied by the City Administrator;

C.

First, middle, and last name(s) of the applicant and current residence address;

D.

The applicant's places of residence for the five preceding years of the date of application;

E.

The applicant's personal characteristics, such as height, weight, eye color, hair color, and sex;

F.

Written evidence that applicant is at least eighteen years of age;

G.

The names, addresses and contact information of the applicant's current employer or if self-employed the name of the business, the type of services or products provided and the names, addresses and contact information of at least three business references;

H.

The names, address and contact information of the applicant's employers for the five years immediately preceding the date of application or if self-employed name(s) of the business, the type of services of products provided and the names, addresses and contact information of at least three businesses' references for each of the previous five years;

I.

Original documents to demonstrate the fulfillment of the minimum requirements for massage therapist permits described in Section 5.36.190;

J.

If the applicant holds or has held any permit or license to offer or administer massages in California or any other state, the license or permit number, the identity of the issuing authority, and information whether such license or permit was ever revoked or suspended and the reason therefore;

K.

The fingerprints and photograph of the applicant;

L.

Certification under penalty of perjury that the applicant has not committed any disqualifying offenses described in Section 5.36.020;

M.

Such further information as the City Administrator, or such official of the city to whom the application may be referred, may require; and,

N.

The applicant(s) shall review, sign, and date a form provided by the City Administrator, certifying that he or she: (a) has received a copy of this chapter; (b) understands its contents; and (c) understands and accepts duties and responsibilities provided in this chapter.

Any massage therapist conducting, performing, engaging in or giving massages at their residence or on an out-call massage service basis is deemed a home occupation solo practitioner and must indicate on the form provided by the City Administrator his or her intent to operate as such and must also comply with the following requirement:

Client Register. Home occupation solo practitioner shall keep a client register, approved as to form by the City Administrator, that lists all patrons, their names, addresses, dates and times of massages including their arrival and departure time, the type of service obtained and the fee paid. The client register shall be updated by the close of business every day. The client register shall be available for inspection by the city of Oakland at all times during regular business hours. This record shall be considered confidential, not for public review, and may be inspected by the city of Oakland only as part of a criminal investigation or during proceedings to suspend or revoke a permit under this chapter. This record shall be kept on file for one year.

(Ord. 12675 § 4 (part), 2005)

The provisions of this chapter shall apply to any person(s) conducting, performing, carrying out, engaging in or giving massages whether the activities were established before or after the effective date of this ordinance. Massage therapists permitted under the previous requirements of Chapter 5.36 must comply with the requirements of this chapter, upon renewal of their massage therapist permits, or within sixty (60) days, whichever is later but are not required to demonstrate that they possess the minimum qualifications for a massage therapist permit pursuant to Section 5.36.190. This recognition of possessing the minimum qualifications shall extend to each subsequent renewal of the massage Therapist permit provided the permit is not revoked, suspended or expired. Any massage therapist not in compliance within one year of the effective date of the ordinance will be declared in violation of this chapter.

(Ord. 12675 § 4 (part), 2005)

Massage therapist and massage therapist trainee permits shall contain a description of the any activities he or she is licensed, trained or authorized to perform, his or her name and residential address, any conditions imposed upon the permit, and the date the permit was issued and expires.

(Ord. 12675 § 4 (part), 2005)

All massage therapist permits shall be valid for one year from the date of issuance and must be renewed annually. The applicant is responsible for initiating and completing the renewal process. The applicant and the City Administrator in renewing a permit shall be governed by the same provisions as are applicable to issuance of new permits.

Massage therapist trainee permits shall be valid for one hundred and twenty (120) days from issuance and shall not be renewed.

(Ord. 12675 § 4 (part), 2005)

A.

Identification Card. All massage therapists and massage therapist trainees shall carry on his or her person at all times during business operations and be able to produce upon request an identification badge with their name, photograph, and permit number and expiration date thereof. The city shall issue such badges to permittees.

B.

Cleanliness. All massage therapists and trainees shall wash their hands before administering a massage. All massage therapists and trainees shall be free of any communicable disease. Instruments for massage shall be sanitized before each use by approved sanitization methods.

C.

Appropriate Attire. Massage therapists and massage therapist trainees shall be fully closed at all times and shall wear clean outer garments that are of a fully opaque, nontransparent material that provides complete covering from at least the mid thigh to two inches below the collarbone. The midriff may not be exposed.

D.

Hours of Operation. Massage therapist and massage therapist trainees shall only offer massage services between the hours of 7:00 a.m. and 10:00 p.m. Pacific Standard Time.

(Ord. 12675 § 4 (part), 2005)

A.

Application Filing. All applications for permits issued pursuant to this chapter, including renewals, shall be filed in the Office of the City Administrator. The City Administrator shall receive any fee required for the application, ensure that the application is complete, and refer the application to the Chief of Police for investigation, review and recommendation.

B.

Procedures on Applications. Immediately on the filing of any application under this chapter, the City Administrator shall make a copy of such application available for public review and shall refer one copy to Chief of Police, who shall be the investigating official.

C.

Investigation. The City Administrator shall refer the application to the Chief of Police who shall conduct background investigations on all applicants requesting permits under this chapter. Where the applicant(s) is any type of association, partnership, corporation or other entity, background investigations of all publicly named or registered persons, officers, directors, managers and shareholders within those entities shall be conducted as appropriate. Where the application is for a massage establishment permit, background investigations of all nonmassage employees shall be conducted as appropriate. The applicant shall be fingerprinted and photographed and consideration shall be given to their criminal record, if any. For massage establishment permits, all owners shall be fingerprinted and photographed, consideration shall be given to their criminal record, if any, and to the character and business responsibility of the owner and all persons to be directly or indirectly interested in the permit if granted. After reviewing the information obtained, the Chief of Police shall transmit in writing any recommendation or findings from the investigation to the City Administrator and shall give particular consideration to the safety and general welfare of the public, and for massage establishment permits, shall make a determination whether operating the massage establishment would create an unreasonable risk to the health, safety, or general welfare of the public.

The City Administrator shall also refer the application to other city and county agencies as appropriate and warranted to ensure compliance with existing state, county and local laws.

D.

Hearing. A hearing date shall be set on the application not less than five days and no more than sixty (60) days from the date the application is filed. All persons interested in the application shall be entitled to file objections, protests or recommendations at the hearing. The City Administrator may continue the hearing over from time to time as circumstances may require.

E.

Personal Interview. The City Administrator may conduct a personal interview of an applicant to demonstrate and verify individual's qualifications. A written summary of the interview shall be prepared and included as part of the file or record for the application.

F.

Hearing Officer. The City Administrator may designate the power to hear, inquire and make recommendations on any permit issued pursuant to this chapter to a member of the City Administrator's staff. The person designated shall be deemed the "Hearing Officer." The City Administrator and the Hearing Officer shall not be bound by the common law or statutory rules of evidence and procedure, but any hearing or inquiry conducted shall be designed to best ascertain the substantial rights of the public parties and carry out the intent and provisions of this chapter. The informality of any proceeding, the manner of taking testimony and the admission of evidence into the record that is not admissible under the common law or statutory rules of evidence and procedure shall not invalidate any other decision, award or rule made pursuant to this chapter.

G.

Notice of Hearing. The City Administrator shall notify the applicant of the time and place of any hearing on the application at least five business days before the hearing. The City Administrator shall publish notice of the hearing in the official newspaper of the city at least five days before the bearing date, shall post a notice of the hearing on the bulletin board near the Council Chambers and, where applicable, post a notice of the hearing on the premises to be primarily affected by the granting of the permit. The notice shall set forth the fact that such application has been filed, the name of the applicant, the nature permit requested and the time and place of the application hearing.

H.

Written Decision. Any hearing on an application shall be recorded and following the hearing, within sixty (60) days of making a determination, the City Administrator shall provide the applicant with a written decision on the application.

I.

City Clerk to be Notified of Actions on Permits. The City Administrator shall notify the City Clerk of any action taken on a permit application under this chapter and shall make copies of all communications, findings and records that pertain to such applications and permits available for public review.

(Ord. 12675 § 4 (part), 2005)

A.

Issuance. Within sixty (60) days of completing the background investigation and receipt of information from the Chief of Police, the Hearing Officer shall issue a permit under this chapter unless the City Administrator finds and states in writing that:

The applicant failed to provide information in connection with the application requested by the City Administrator as a basis for enabling the City Administrator to make his or her determination;

Any statement made in the application or any information submitted supplementary thereto is incorrect or untrue; or

The Applicant. Owner(s) or any persons to be directly or indirectly interested in the permit if granted have committed a disqualifying offense or has violated any of the provisions of Sections 5.36.100, 5.36.160, 5.36.190 or 5.36.250 and the City Administrator concludes that by reason of the crime or act the applicant, owner(s) or any persons to be directly or indirectly interested in the permit if granted would not conduct the enterprise in a law abiding manner or in a manner which does not subject patrons of the enterprise to risk of harm or criminal, deceitful, or otherwise unethical practices.

B.

Conditions. The City Administrator may impose specific conditions of operation on any permit issued pursuant to this chapter to protect the safety and general welfare of the public, to reduce the incidence of, detect the commission of, or identify perpetrators of crime, or to enforce the provisions of this chapter. Any condition imposed pursuant to the provisions of this section shall be stated in writing, together with the reasons therefore, and served upon the applicant or permittee.

If conditions are imposed pursuant to this section during the permit term, the condition(s) shall become effective fifteen (15) days following the date of service of the notice thereof.

(Ord. 12675 § 4 (part), 2005)

A.

Misdemeanor. Any person who intentionally or willfully violates any provision of this chapter or recklessly disregards the provisions of this chapter, and that violation threatens the public health, safety or welfare, is guilty of a misdemeanor. Any person convicted of a misdemeanor under the provisions of this chapter shall be punishable by imprisonment in the county jail not exceeding six month or by fine not exceeding one thousand ($1,000) or by both. For purposes of this section the term person means any firm, association, corporation, limited partnership, limited liability company or other business or corporate entity.

B.

Separate Offenses for Each Day. Any person in violation of this chapter shall be liable and guilty of a separate offense for each day a violation occurs, continues or is permitted.

C.

Public Nuisance. A public nuisance may be summarily abated by the city as such.

D.

Civil Penalties. Any violation under this chapter is subject to civil penalties and administrative citations pursuant to Sections 1.08 and 1.12 of this code.

E.

Liability for Expenses. Violators of this chapter shall be liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation(s). Reinspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the holder of the massage establishment permit. Fees shall be in the amount specified in the city's master fee schedule. The inspection official shall give the massage establishment owner(s), massage therapist(s) or massage therapist trainee(s) written notice showing the itemized cost of such chargeable service and request payment thereof. If the bill is not paid within the time specified, the charges shall be placed as a lien against the property, if applicable, and must be paid in full before a massage establishment permit, massage therapist permit or massage therapist trainee permit is issued or renewed.

F.

Prohibition from applying for or obtaining permits. Any person, firm, association, corporation, limited partnership, limited liability company or other entity that violates, or causes or permits another to violate, any provision of this chapter or that commits a disqualifying offense is prohibited from applying for or obtaining any permit under this chapter for five years from the date of the violation(s).

(Ord. 12675 § 4 (part), 2005)

It is unlawful for any massage therapist, massage therapist trainee, manager, employee, operator, owner or any other person to touch, with any part of his or her body or with any object, a patron's clothed or unclothed erogenous area before, after or during any massage service.

(Ord. 12675 § 4 (part), 2005)

Any permit granted pursuant to this chapter may be revoked or suspended by the City Administrator pursuant to the procedures set forth in Section 5.02.080 upon a finding by the City Administrator that any one of the following conditions exists:

A.

That any of the requirements for the issuance of such permit do not exist;

B.

That a violation of any of the permitting or operating requirements, including a violation of a permit condition, has occurred;

C.

That any massage establishment permittee has allowed a massage therapist who does not have a valid permit to perform services on the premises;

D.

That any massage therapist or massage therapist trainee performed a massage without a valid permit or in violation of this chapter;

E.

That any permittee has committed a disqualifying offense, as defined in Section 5.36.020;

F.

That more than two persons working as home occupation solo practitioners engaged in, performed or gave massage in one residence; or

G.

That issuance of a permit under this chapter has resulted in a public nuisance.

(Ord. 12675 § 4 (part), 2005)

Any person may appeal the denial, revocation or suspension of a permit under this chapter pursuant to the procedures and requirements of Section 5.02.100 of this code.

(Ord. 12675 § 4 (part), 2005)