Rohnert Park Municipal Code Ch. 8.36 Massage Businesses and Establishments, Massage Providers, and Massage…

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Editor's note— Ch. 8.36 has been retitled as set out herein, at the editor's discretion, to make "Massage Business" plural in agreement with the rest of the title.

For the purposes of this chapter, the following words and phrases will have the meaning set forth in this section:

"Approved school" means an institution that provides massage therapy education and training as such term is defined in Section 4601 of the Massage Therapy Act.

"CAMTC" means the California Massage Therapy Council created under the Massage Therapy Act.

"CAMTC certificate" means a current and valid certificate issued by the CAMTC to a massage provider or a massage therapist.

"Employee" includes independent contractors.

"Massage" or "massage therapy" means the application of various techniques to the muscular structure and soft tissues of the human body, including, but not limited to, any method of pressure or friction against, stroking, kneading, rubbing, tapping, compressing, pounding, vibrating, rocking or stimulating of external surfaces of the body with hands or the aid of any apparatus or other appliances or devices, with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment, or other similar preparations for any consideration or compensation.

"Massage business or establishment" means a business or establishment, including a sole proprietor or independent contractor, that offers massage therapy within the city, whether at a fixed place of business or at a location designated by the patron, and also includes all businesses or establishments where massage therapy is provided as an ancillary service such as clubs, gyms, day spas and professional offices where such massage therapy is not otherwise exempt under this chapter.

"Massage provider" means any person who has been certified as a massage provider and maintains a current and valid CAMTC certificate under the Massage Therapy Act.

"Massage therapist" means any person who has been certified as a massage therapist and maintains a current and valid CAMTC certificate under the Massage Therapy Act.

"Massage Therapy Act" means Chapter 10.5 of Division 2 of the California Business and Professions Code (beginning at Section 4600).

"Outcall massage therapy" means the performance of massage therapy at a location designated by the patron and not at a fixed location massage business or establishment.

"Owner" means (1) a sole proprietor of, (2) a general partner of, or (3) each individual person who holds a twenty percent or greater ownership interest in, a massage business or establishment.

"Specified criminal offense" means:

1. Within five years of the date of the filing of the application has pleaded guilty or nolo contendere to, or been convicted in a court of competent jurisdiction of a misdemeanor or felony crime involving sexual misconduct, including but not limited to (1) Chapter 1 of Title 9 of the Penal Code (Sections 261—269) relating to sexual crimes; (2) Chapter 8 of Title 9 of the Penal Code (Sections 314—318.6) relating to indecent exposure, obscenity and disorderly establishments; or (3) Penal Code Section 647(a) or (b) relating to prostitution;

2. Any similar offenses under the criminal code or penal of this state or any other states or countries; or

3. Having permitted, through an act of omission or commission, an employee or agent to engage in any type of moral turpitude or sexual misconduct offense listed in subsection 1 or 2 above (the conduct of the employee or agent, if such resulted in a conviction or a plea of nolo contendere or guilty, will be considered imputed to the principal).

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

A. Massage Businesses and Establishments.

1. No person may engage in, conduct or carry on, or permit to be engaged in, conducted or carried on in any location within the city, a massage business or establishment unless all persons providing massage therapy at or on behalf of the massage business or establishment obtain and maintain a valid CAMTC certificate except as provided in subsection C below.

2. Each massage business or establishment operating within the city must obtain and maintain a massage business license as provided in Section 8.36.040.

B. Massage Therapy. No person may engage in, conduct, carry on, or perform massage therapy within the city unless such person obtains and maintains a valid CAMTC certificate, except as provided in subsection C below.

C. Grace Period. Any person previously licensed, pursuant to Chapter 9.80 of this code, to provide massage services within the city as of the effective date of the ordinance codified in this chapter but not holding a CAMTC certificate may continue to practice massage therapy within the city until July 9, 2016. Following this date, no person may engage in, conduct, carry on, or perform massage therapy within the city unless such person has obtained and maintains a valid CAMTC certificate.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

The requirements of this chapter do not apply to:

A. Any physician, surgeon, chiropractor, osteopath, naturopath, podiatrist, acupuncturist, physical therapist, registered nurse or vocational nurse duly licensed to practice their respective profession in the state.

B. Any treatment administered in good faith in the course of the practice of any healing art or profession by any person licensed to practice any such art or profession under the California Business and Professions Code or any other law of the state.

C. Barbers, cosmetologists, estheticians, and manicurists licensed to practice their respective profession under the laws of the state while performing activities within the scope of their license, provided that such massage is limited solely to the neck, face, scalp, feet, hands, arms, and lower limbs up to the knees, of their patrons.

D. State-licensed hospitals, nursing homes, and other state-licensed physical or mental health facilities and their employees.

E. Persons who provide massage therapy to athletes or athletic teams, facilities or events, so long as such persons do not practice massage therapy as their primary occupation within the city.

F. Registered schools and their employees that provide massage therapy education or training and their students in training, provided that such students perform massage therapy only under the direct personal supervision of an instructor.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

A. License Required. The owner of each massage business or establishment, and any massage provider or massage therapist that desires to work as an independent contractor at a fixed location massage business or establishment or who desires to provide outcall massage therapy as an independent contractor, must obtain a massage business license prior to commencing operation or providing any massage therapy and must thereafter maintain a valid massage business license.

B. License Application. The application for a massage business license will be made in conjunction with the application for a business license and tax under Title 5 of this code. Each applicant for a massage business license must provide the following additional information with the application:

1. Business, occupation or employment history of the owner for the three years immediately preceding the date of the application.

2. The business license history of the owner, including whether such person, in previously operating in this city or another city or state under license, has had such license revoked or suspended, and the reason for such action.

3. Whether the owner has been convicted of or permitted any specified criminal offense. If an owner does not have a CAMTC certificate, then the owner must obtain a Live Scan background check.

4. The names and addresses of each massage provider and massage therapist providing massage therapy at or on behalf of the business or establishment and proof that each such provider or therapist has a CAMTC certificate or equivalent as set forth in Section 8.36.020(C).

5. Such other reasonable identification and information as the chief of police may require in order to discover the truth of the matters required to be set forth in the application.

C. Issuance or Denial of License.

1. Upon receipt of a complete application, the chief of police will cause: (a) the inspection of the proposed premises of any fixed location massage business or establishment, and (b) the massage business license to be issued if all applicable requirements of this chapter and this code are satisfied.

2. If the chief of police finds that any of the applicable requirements of this chapter or this code are not satisfied, including any conviction for or the permitting of a specified criminal offense, or that the applicant has provided materially false information, the application will be denied.

3. The decision of the chief of police denying the massage business license application may be appealed pursuant to the procedures set forth in Section 8.36.090 of this code.

D. License Renewal.

1. A massage business license will automatically renew with the renewal of the business's or establishment's annual business license and tax renewal under Title 5 of this code, provided that all applicable requirements of this chapter and this code remain satisfied, and the applicable business license renewal fee is paid.

2. For persons who are massage therapy sole providers or independent contractors, their massage business license will expire at the time of expiration of their CAMTC certificate unless they renew their massage business license by providing proof of the renewal of their CAMTC certificate and pay the applicable massage business license renewal fee.

E. Transfer of License Prohibited. Upon the sale or transfer of any interest in a massage business or establishment, the business license will become void. The person acquiring the interest in a massage business or establishment must submit a new massage business license application and receive approval of such license in accordance with the provisions of this section.

F. Notification of Changes in Registered Massage Providers and Therapists. Each licensee must submit to the Finance Department the names and applicable CAMTC certificate of any new massage providers or massage therapists not previously included in the list required under subsection B.4 above who are hired or retained to provide massage therapy at or on behalf of the business or establishment prior to such person commencing the provision of any massage therapy services. In addition, any discharge or termination of the services of a massage provider or massage therapist must be reported to the finance department within five business days of such event.

G. Revocation of License. A massage business license may be revoked pursuant the procedures set forth in this chapter.

H. Effect of License Denial or Revocation. No person may apply for a license under this chapter within at least one year from the date of denial or revocation of such license.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

A. Facility Requirements. Each fixed location massage business or establishment must comply with the following facility requirements:

1. A recognizable and legible sign complying with the requirements of this code posted at the main entrance identifying the location as a massage business or establishment.

2. In addition to the minimum lighting required by the provisions of Title 15 of this code, at least one artificial light of not less than forty watts must be provided in each room or enclosure where massage therapy is to be performed on patrons.

3. Closed cabinets must be provided and utilized for the storage of clean linen and towels. Appropriate receptacles must also be provided for the storage of all soiled linen and towels.

4. Adequate dressing, locker and toilet facilities must be provided for patrons. A minimum of one dressing room containing a separate locker for each patron to be served, which locker must be capable of being locked, and a minimum of one toilet and one wash basin must be provided by every massage establishment. Such basin must provide soap or detergent, hot and cold running water, and sanitary towels placed in permanently installed dispensers at all times.

5. Massage table or chair. A massage table or chair must be provided in each massage room and the massage must be performed on this massage table or chair with the exception of "Thai," "Shiatsu" or similar forms of massage therapy, which may be provided on a padded mat on the floor. The massage tables must be positioned so that there is at least three feet from the nearest wall to each side to allow access to the table on all sides. Foam pads at least two inches thick with a minimum width of two feet and a maximum width of four feet may be used on a massage table or floor pad, as provided above, and must be covered with durable, washable plastic or other waterproof material. Beds and floor mattresses are not permitted on the premises.

B. Operational Requirements. Each fixed location massage business or establishment and any massage business or establishment providing outcall massage therapy, must comply with the following operational requirements, as applicable:

1. General Cleaning. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments, and toilet facilities must be thoroughly cleaned each day the business is in operation . Bathtubs must be thoroughly cleaned after each use. (Not applicable to outcall massage therapy.)

2. Towels and Linen. Clean and sanitary towels, sheets and linens must be provided in sufficient quantity. Towels, sheets and linens must not be used by more than one person. Reuse of such linen is prohibited unless such linen has first been laundered. Heavy white paper may be substituted for sheets, provided that such paper is used once for each person and then discarded into a sanitary receptacle.

3. Patron Garments. All bathrobes, bathing suits or other garments provided for the use of patrons must be either disposed of after any use or laundered as provided in subsection B.2 above.

4. Locked Doors. All exterior doors (except a rear entrance for staff only) and interior doors must remain unlocked during business hours, except in the case of a sole proprietorships with no employees. (Not applicable to outcall massage therapy.)

5. Service List and Prices. Each massage therapy service offered, the price of the service and the minimum length of time such service will be performed must be posted in a conspicuous public location in each massage business or establishment. The services must be described in readily understandable terms, all letters and numbers must be not less than one inch in height, and must be in English and such other languages as may be convenient to communicate such services. No services may be performed and no sums may be charged for such services other than those posted. All arrangements for services to be performed must be made in a room in the massage business or establishment that is not used for massage therapy unless no other room exists in the business or establishment. (Not applicable to outcall massage therapy.)

6. Register of Employees. Every massage business or establishment must maintain a register of all employees. The register must contain the names of all employees, their home address, age, birth date, gender, height, weight, color of hair, eyes, telephone number, social security number, date of employment and termination, if any, and the duties of each employee. All such information must be maintained in the register for a period of two years following such employee's termination. Such employee register must be available for inspection at the massage business or establishment to representatives of the city during regular business hours.

7. Provider and Therapist Attire and Hygiene. To protect patrons from potential health and sanitary hazards, all massage providers and therapists must be clean and must perform all services in full, clean outer garments. Clothing must be of non-transparent material and must provide complete covering from mid-thigh to three inches below the collarbone.

8. CAMTC Certificate. All massage providers and therapists must have on his or her person or maintain on the premises their CAMTC certificate identification card or equivalent document showing eligibility to practice under the provisions of Section 8.36.020.C. Such identification card must be provided to city officials upon demand. At least one person who has a CAMTC certificate or Section 8.36.020.C document must be on the premises at all times while the business or establishment is open for business.

9. Patron Attire. The patron's genitals, pubic area, anus and a female patron's breasts below a point immediately above the top of the areola must be fully draped at all times while any massage provider or therapist is in the massage therapy room or cubicle with the patron.

10. Improper Solicitation or Performance of Services. Except to the extent required, in writing, by a state-licensed medical provider, no massage therapy may be provided to a patron that results in intentional contact, or occasional and repetitive contact with the genitals, anus or areola of any patron. No massage provider, therapist, or other person may offer to or perform any act of prostitution as such term is defined in the California Penal Code. No massage provider, therapist or other person may, after the commencement of any service for any patron, advise, suggest or otherwise indicate to such patron that any additional service is available or ask or inquire of such patron whether such patron desires any additional service to be performed at that time, except with respect to services that are publicly posted. (This regulation does not preclude the discussion with a patron in the lobby or public area of additional or alternative massage services that are not posted upon completion of the massage.) No massage provider or massage therapist may perform any service for any patron that was not ordered by such patron prior to the commencement of performance of any service requested.

11. Records of Treatments. Each massage business or establishment must keep a record of the date and hour of each treatment, the name and address of the patron, and the name of the massage provider or therapist administering such treatment. Such records must be available for inspection by city representatives for the purposes of law enforcement and for no other purpose. Identical records must be kept for outcall massage therapy services and, in addition, must describe the address where such services were rendered. The records must be maintained for a period of at least two years.

12. Access. The following persons may be allowed beyond the front lobby, located directly inside the front door entrance during hours of operation: (i) massage providers and massage therapists; (ii) patrons, who may be accompanied by no more than one family member; and (iii) visitors of massage providers and therapists; provided that such visitor's access is limited to the designated office of the massage business or establishment. Any other persons found beyond the first interior door leading to the inside of the premises, including, but not limited to, hallways, massage rooms, reception/business offices or lounge area will be a violation of this chapter. Nothing contained in this subsection prohibits any employee from being present in hallways, reception/business offices or other areas necessary or relating to such person's employment duties, nor prohibit any authorized repair, maintenance or service personnel from being present in areas necessary to the performance of such person's services, except that no such employee or service personnel may be permitted in any massage room or cubicle while a patron is present in such room or space.

13. Licensee Responsibility. Each owner and holder of a massage business license is responsible for the conduct of all employees, agents, independent contractors or other representatives, while on the premises of the massage business or establishment and while providing any massage therapy on behalf of such business of establishment.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

Representatives of the city's development services department and public safety department may, from time to time, make an inspection of each fixed location massage business or establishment in the city during regular business hours for the purpose of determining that all applicable laws are met.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

The chief of police is authorized to report any violations of the Massage Therapy Act or unprofessional conduct by CAMTC certificate holders to the CAMTC.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

A. Action of Chief of Police. Whenever the chief of police is advised that a permittee is conducting operations under a massage business license in a manner which is contrary to the provisions of this code, in a manner which constitutes a public nuisance, in a manner which is detrimental to the public peace, health, safety or welfare of the city or its inhabitants, or whenever the chief of police is advised that a permittee supplied false information on the permit application, the chief of police shall give notice to such permittee of the violation(s) involved and set forth a period of time allowed for the correction of the violation(s) by the permittee if correction is possible. If the chief of police finds that the violation(s) continue without correction, or if correction is not possible, then the chief of police shall issue an order of revocation.

B. Orders of Revocation. An order or revocation issued by the chief of police shall contain a statement of the violation(s) which constitute the basis for the order of revocation. The chief of police shall serve the order of revocation on the permittee, as well as any other interested person requesting a copy of the same. The order of revocation issued by the chief of police shall be final and conclusive in the absence of a timely appeal taken in the time and manner set forth in Section 8.36.090.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)

A. Right and Timing of Appeal. Any person aggrieved by a decision of the chief of police to deny, revoke or refuse to renew a massage business license may appeal such decision to the city manager by filing a notice of appeal with the city clerk no later than fifteen days following the date the chief of police gives notice of the decision.

B. Payment of Appeal Fee. The notice of appeal must be accompanied by the applicable administrative appeal fee established by city council resolution.

C. Setting Appeal Hearing. Upon receipt of a timely filed appeal, the city manager will fix a time and place for hearing the appeal. The appeal may be heard by the city manager or a hearing officer designated by the city manager. All references in this section to the city manager include a designated hearing officer.

D. Notice of Appeal Hearing. The city clerk shall give written notice of the time and place of the appeal hearing to the appellant, and any other person requesting notice, at least five days prior to the hearing date.

E. Appeal Hearing Procedure. At the hearing, the city manager will review the records and files of the chief of police relating to the decision. The city manager shall permit any interested person, including the chief of police and the appellant, to present any relevant evidence bearing on the issues involved in the matter. In conducting the hearing, the city manager is not bound by formal rules of evidence and may accept all reasonably reliable evidentiary material.

F. Decision Following Appeal Hearing. Based upon the evidence presented at the hearing, the city manager must determine whether the decision by the chief of police should be affirmed, modified or reversed. The city manager's decision shall be communicated in writing to the appellant within five business days after the hearing is completed and shall state the reasons for the decision.

G. Judicial Review. The determination of the city manager will be final. The written notice of decision shall be sent by first class mail, postage prepaid, including a certificate of mailing. The notice shall advise that any action challenging the decision of the city manager must be filed with the superior court of the state pursuant to Code of Civil Procedure Section 1094.5, and must further advise that the time period within which judicial review must be sought is ninety days following the date of the city manager's written notice under Code of Civil Procedure Section 1094.6.

(Ord. No. 887, § 4(Exh. B), 5-26-2015)