Oceanside Municipal Code Art. II Licensing, Massage Technicians and Establishments

The purpose of this article is to regulate and license the practice of massage in the City of Oceanside, to establish rules and regulations regarding such practice, and to provide punishment for violations of such rules and regulations.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

Health officer. Health Officer of the County of San Diego or his/her authorized representative.

Holistic health practitioner. Any person who is a nonmedical care therapist using a massage specialty and uses therapeutic approach to caring for clients and who has successfully completed a minimum of one thousand (1,000) hours of instruction in such specialty or therapeutic approach at a recognized school or schools.

Massage. The method of treating the superficial parts of the human body for medical or hygienic purposes by rubbing, pressing, stroking, kneading, tapping, pounding, vibrating or stimulating with the hands or any instrument.

Massage establishment. Any establishment wherein a massage is given, engaged in, carried on, or permitted to be given, engaged in, or carried on, whether for fee or gratuitously.

Massage school trainee. Any person who practices massage as part of a course of instruction in a recognized school.

Massage technician (therapist). Any person who practices or administers as to all or any of the following named subjects, and who has made a study of the underlying principles of anatomy and physiology as generally included in a regular course of study by a recognized and approved school of massage, to wit: the art of body massage either by hands, or with a mechanical or vibratory apparatus for the purpose of body massaging, reducing, or contouring; the use of oil rubs, heat lamps, salt glows, hot and cold packs, tub, shower or cabinet baths. Variations of the following procedures are employed: touch, stroking, friction, kneading, vibration, percussion and medical gymnastics. Massage technicians shall not diagnose or treat classified diseases nor practice spinal or other joint manipulations nor prescribe medicines or drugs.

Off-premises massage. Any massage which is practiced outside of the premises of a recognized school or massage establishment.

Recognized school. Any school or institution of learning which offers a course of instruction approved by the State of California Office of Private Postsecondary Education or comparable out-of-state agency which shall include anatomy, physiology and hygiene, massage theory and history, ethics of massage and business practices. Any such school or institution of learning will be required to furnish a diploma or certificate of graduation showing successful completion of a course of study already approved by the California State Department of Education or comparable out-of-state agency.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

(a) Except for those person referenced in section 15.21, it shall be unlawful for any person to practice or attempt to practice massage without first having obtained a permit or license issued pursuant to this article.

(b) It shall be unlawful for any person or persons to operate or conduct any massage establishment which does not conform to the sanitary provisions herein contained or to employ any person as a massage operator who does not hold a license.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

It shall be unlawful to operate, conduct, or carry on a massage establishment unless a license for such massage establishment has been issued by the City of Oceanside and remains in effect. This massage establishment license shall be separate from, and in addition, to a business license.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

(a) It shall be unlawful for any person to practice or attempt to practice an off-premises massage unless the person is exempt from licensing pursuant to section 15.21 or licensed as a holistic health practitioner having in effect liability insurance in an amount no less than one million dollars ($1,000,000.00) from a policy approved by the city attorney.

(b) No license authorizing the practice or attempt to practice an off-premises massage shall be issued to any person who has had a massage technician, massage establishment, nude entertainment, escort service, rap parlor, nude photo studio or similar type of license or permit suspended for one year or more, revoked for good cause within three (3) years immediately preceding the date of filing of the application, unless the applicant can show a material change in circumstances or mitigating circumstances since the revocation or suspension.

(c) No person shall conduct an off-premises massage between the hours of 11:00 p.m. and 7:00 a.m. This prohibition shall not apply to any person exempt from licensing pursuant to section 15.21.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

The permits and licenses required by this article shall not apply to the following:

(1) Hospitals, nursing homes, sanitaria, or persons holding an unrevoked certificate to practice the healing arts under the laws of the State of California.

(2) Persons, other than independent contractors, employed by and while working at any establishment referenced in subsection (1).

(3) Persons, other than independent contractors or employees of persons listed under subsection (4), employed by and working under the immediate and direct supervision of a person holding an unrevoked certificate to practice the healing arts referenced in subsection (1) while the certificate holder is physically present at the premises where the massage is taking place.

(4) Persons who are licensed by the Massage Therapist Organization or the California Massage Therapy Council pursuant to Chapter 10.5 (commencing with section 4600) of Division 2 of the Business and Professions Code, provided however, that such persons shall not be exempted from the provisions of this article if Chapter 10.5 is repealed.

(5) Establishments or businesses that employ or use only persons who are licensed by the Massage Therapist Organization or the California Massage Therapy Council pursuant to Chapter 10.5 (commencing with section 4600) of Division 2 of the Business and Professions Code to perform massage, provided however, that such establishments or businesses shall not be exempted from the provisions of this article if Chapter 10.5 is repealed.

(6) Nothing in this section shall relieve any person, establishment or business from the business license requirements of article I of this chapter. Any person, establishment or business claiming exemption from the provisions of this article under subsection (4) and/or (5) of this section shall file a copy of the applicable license(s) issued by the Massage Therapist Organization or the California Massage Therapy Council with the business license division prior to performing any massage.

(Ord. No. 02-OR674-1, § 1, 10-9-02; Ord. No. 09-OR0851-1, § 1, 12-16-09)

Any person desiring to obtain a license to operate a massage establishment or to perform massage services shall make application to the business license division, who shall refer all such applications to the chief of police for an appropriate investigation. Such application shall also be referred to other appropriate city departments such as the fire department, building department and planning department, each of which within a period of thirty (30) days from the date of application shall review records or make an inspection of the premises proposed to be devoted to a massage establishment and shall make a written recommendation the chief of police concerning compliance with the respective requirements. Each application shall be accompanied by an investigation fee of fifty dollars ($50.00), no part of which shall be refundable.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

An applicant for a license shall submit the following information:

(1) Full name, residential address and residence telephone number.

(2) The two (2) previous residential addresses of the applicant immediately prior to the current address.

(3) The name and address of the massage establishment that the applicant is intending to operate or where the applicant is intending to be employed, and if the establishment is owned by someone other than the applicant, the name of the owner.

(4) Written proof that the applicant is over the age of eighteen (18) years.

(5) Applicant's height, weight, and color of eyes and hair and the applicant's sex.

(6) Two current portrait photograph at least two (2) inches by two (2) inches in size.

(7) The business, occupation or employment of the applicant for three (3) years immediately preceding the date of the application.

(8) The massage or similar business license history of the applicant including whether such person in this or another area has had his or her license revoked or suspended, the reason therefore, and any business activity or occupation subsequent to the action of suspension or revocation. The business license history of the applicant shall include the names and addresses of any and all previous establishments where applicant has been employed as a massage technician.

(9) The criminal record, if any, other than a misdemeanor traffic violation, of the applicant.

(10) A certificate from a medical doctor designating that the applicant has, within thirty (30) days immediately prior thereto, been examined and found to be free of any contagious or communicable disease.

(11) Applicant must furnish a diploma or certificate of graduation from a recognized school.

(12) The applicant shall not have been convicted of any crime requiring registration under Section 290 of the California Penal Code or of any violation of Sections 300, 311-311.7, 314, 315, 316, 318, or 647(a), (b), or (d) of the Penal Code.

(13) Such other identification and information necessary to discover the truth of the matters hereinbefore specified as required to be set forth in the application.

(14) Nothing herein contained shall be construed to deny to the investigating official the right to take the fingerprints and additional photographs of the applicant.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

It shall be unlawful for any person to practice massage as a principal, employee, or otherwise within the City of Oceanside unless such person has been issued a massage technician permit by the chief of police of the city and such permit remains in effect in conformity with the provisions of this article.

The chief of police shall issue such permit if, upon investigation and the reports filed, it is found:

(1) That the operation as proposed by the applicant, if permitted, would comply with all applicable laws including but not limited to the city's building, zoning and health regulations.

(2) The applicant has not been convicted in a court of competent jurisdiction of:

(a) An offense involving lewd conduct or an offense involving the use of force or violence upon the person of another; or

(b) A crime requiring registration under Section 290 of the California Penal Code or of any violation of Sections 311 through 311.7, 314, 315, 316, 318 or 647 (a), (b), or (d) of the Penal Code.

(3) That the applicant has not knowingly and with the intent to deceive made any false misleading or fraudulent statement of facts in the permit application or any other document required by the city in conjunction therewith. Otherwise, said permit shall be denied. In the event of denial, notification and reasons for denial shall be set forth in writing and shall be sent to the applicant by means of registered or certified mail or hand delivery.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

All licenses issued hereunder are nontransferable; provided however, that a change of location of a massage establishment may be permitted pursuant to the provisions hereof.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

Any person currently enrolled in a "recognized school" may apply for a temporary permit as a massage technician trainee. In addition to the payment of the investigation fee required by section 15.22 and the information required by section 15.23, the application shall submit a letter signed by the director or administrator of the applicant's "recognized school" showing the date the applicant was officially enrolled and the estimated date the applicant will graduate.

The applicant shall also submit a letter signed by the owner or operator of a massage establishment stating his/her willingness to employ the applicant to do massage as a massage technician trainee working under his/her direct supervision and control during the time the applicant is completing a course of study as a massage technician.

The massage trainee permit shall expire three (3) calendar months from the date issued and is not renewable, except in the case of sickness or accident for which reason the education was delayed. Applicant is expected to complete his/her massage technician course of study during the three-month period the permit is valid. The trainee must at all times comply with all laws and ordinances in effect and the failure to comply may render the applicant ineligible to obtain a massage technician's permit. Upon presentation of a copy of his/her diploma or certificate of graduation from a "recognized school" the trainee will be issued the regular massage technician permit.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

All persons engaged in doing massage in the City of Oceanside at the time these regulations become effective who cannot qualify for a massage technician permit shall have a period of sixty (60) days within which to qualify as a massage technician trainee and obtain a massage technician trainee permit by making application therefor, paying the investigation fee, and submitting information required under the provisions of section 15.23 hereof.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

Every person to whom a license shall have been granted shall display said license in a conspicuous place on the premises where he/she is working as a massage technician.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

A change of location of the massage premises shall be approved by the chief of police provided all general ordinances are complied with and the change of location fee of twenty-five dollars ($25.00) is first paid.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

It shall be the responsibility of the holder of the license for a massage establishment to insure that each person employed as a massage technician or therapist shall first have obtained a valid license pursuant to this article. All employees of a massage establishment other than a massage technician or a massage technician trainee shall register with the chief of police.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

At least twice each year an inspection of each massage establishment should be made for the purpose of determining that the provisions of this article are met.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

Any massage establishment or massage technician's permit under this article shall be subject to suspension or revocation by the chief of police for violation of any provision of this article or for any grounds that would warrant the denial of the issuance of such permit in the first instance or for any of the grounds set forth in section 15.33.

Prior to the suspension or revocation of any permit issued under this article, the permittee shall be entitled to a hearing held before the city manager or a hearing officer appointed by the city manager, at which time evidence will be received for the purpose of determining whether or not such permit will be suspended or revoked or whether the permit may be retained. Notice of such hearing shall be given in writing and served at least fifteen (15) days prior to the date of the hearing thereon. The notice shall state the grounds of the complaint against the holder of such license and shall designate the time and place where such hearing shall be held. Said notice shall be served upon the license holder by delivering the same personally or by leaving such notice at the place of business or residence of the license holder in the custody of a person of suitable age and discretion. In the event the license holder cannot be found and the service of such notice cannot be otherwise made in a manner herein provided, a copy of such notice shall be mailed first class addressed to the license holder at his/her place of business or residence at least fifteen (15) days prior to the date of such hearing.

In the event the permit is suspended or revoked, the notification and reasons for such suspension or revocation shall be set forth in writing and sent to the permittee by means of first class mail or hand delivery.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

The license of a massage technician or therapist may be revoked on one or more of the following grounds:

(1) That the holder is guilty of fraud in the practice of massage or fraud or deceit in his/her being licensed to the practice of massage.

(2) That the holder has been convicted in a court of competent jurisdiction of a felony. The conviction of a felony shall be the conviction of any offense which if committed within this state would constitute a felony under the laws thereof.

(3) That the holder is engaged in the practice of massage under a false or assumed name or is impersonating another practitioner of a like or different name.

(4) That the holder is addicted to the habitual use of intoxicating liquors, narcotics or stimulants to such an extent as to incapacitate such person for the performance of his/her professional duties.

(5) That the holder is guilty of fraudulent, false, misleading or deceptive advertising or practices any other licensed profession without legal authority therefor.

(6) That the holder is guilty of willful negligence in the practice of massage or has been guilty of employing, allowing or permitting any unregistered person to perform massage in his/her establishment.

(7) For violations of any of the provisions of this article or for any grounds that would warrant the denial of the issuance of such permit in the first instance.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

Within twenty (20) days after any action of denial has been taken by the chief of police or of any suspension or revocation by the chief of police and any hearing was held as provided for in section 15.32, such person may appeal such action to the City Council of the City of Oceanside. Upon the filing of such request, the city clerk shall set a time and place for hearing and shall notify the appellant thereof. The hearing shall be set within forty-five (45) days after the request is filed. At the hearing any person may present evidence in opposition to or in support of the appellant's case. At the conclusion of the hearing the city council shall either grant or deny the appeal and the decision of the city council shall be final.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

No license to conduct a massage establishment shall be issued unless an inspection discloses that the establishment to be used complied with each of the following minimum requirements:

(1) A readable sign shall be posted at the main entrance identifying the establishment as a massage establishment provided also that all such signs shall otherwise comply with the general sign requirements of the City of Oceanside.

(2) Minimum lighting shall be provided in accordance with the Uniform Building Code and additionally at least one artificial light of not less than forty (40) watts shall be provided in such enclosed room or booth where massage services are being rendered.

(3) Minimum ventilation shall be provided in accordance with the Uniform Building Code.

(4) Adequate equipment for disinfecting and sterilizing any instrument used for massage shall be provided.

(5) Hot and cold running water shall be provided.

(6) Closed cabinets shall be utilized for the storage of clean linen.

(7) Adequate dressing and toilet facilities shall be provided for patrons.

(8) All walls, ceilings, floors, steam and vapor rooms in all other physical facilities for the establishment shall be kept in good repair, maintained in a clean and sanitary condition.

(9) Clean and sanitary towels and linens shall be provided for patrons receiving massage service. No common use of towels or linens shall be permitted.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

Any person who shall violate any of the provisions of this article shall, upon conviction, be guilty of a misdemeanor punishable by imprisonment for not more than six (6) months or by a fine not exceeding five hundred dollars ($500.00) or by both fine and imprisonment.

(Ord. No. 02-OR674-1, § 1, 10-9-02)

In addition to the legal remedies provided for in this Code, the operator of any massage establishment in violation of the terms of this article shall be deemed a public nuisance and may be enjoined by the City of Oceanside.

(Ord. No. 02-OR674-1, § 1, 10-9-02)