San Marcos Municipal Code Ch. 5.44 Massage and Massage Technicians

Editor's note— Formerly entitled "Massage Establishments and Massage Technicians," which was amended by Ord. No. 2019-1469, as herein set out.

This Chapter may be cited as the City of San Marcos Massage and Massage Technicians Ordinance.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

It is the purpose and intent of this Chapter to provide for the orderly regulation of massage businesses and massage technicians within the City of San Marcos in the interest of the public health, safety and welfare. This Chapter relies upon the State of California certification process of massage professionals through the California Massage Therapy Council pursuant to California Business and Professions Code Sections 4600 et seq. This Chapter is adopted under the authority of California Government Code Sections 37101 and 51030 through 51034; California Business and Professions Code Sections 460(c) and 16000; and the California Constitution Article XI, Section 7.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

This Ordinance shall not be construed in a manner that is inconsistent with any State law governing the practice of massage.

Whenever the following words or phrases are used in this Chapter, they shall mean:

(a)

California Massage Therapy Council or CAMTC shall mean the non-profit organization created by the State of California pursuant to California Business and Professions Code Sections 4600 et seq. to regulate the Massage industry.

(b)

CAMTC Certificate shall mean a current, valid and authentic certificate issued by the California Massage Therapy Council to a Massage Technician.

(c)

City shall mean the City of San Marcos.

(d)

Existing Massage Business shall mean any existing Massage Business, including any Massage Establishment, Outcall Massage service, or Massage Accessory Use business, as those terms are defined by this Chapter, legally established in the City of San Marcos as of July 13, 2017, that continuously operates in the City as a Massage Business since that date with a valid and current business license issued by the City and all other necessary approvals, and that operates in compliance with all local, State and Federal laws, ordinances, rules and regulations.

(e)

Health Department shall mean the Department of Environmental Health and/or the Health and Human Services Agency of the County of San Diego.

(f)

Inspector shall mean anyone employed with the Building Division, the Fire Department, the City Attorney's office and/or law enforcement, who may conduct an inspection of a Massage Business pursuant to this Chapter.

(g)

Issuing Officer shall mean the Finance Director, or his or her designee.

(h)

Manager shall mean any Person(s) designated by the Owner or Operator of the Massage Business to act as the representative and agent of the Owner and Operator in managing day-to-day operations of the Massage Business with the same liabilities and responsibilities as the Owner and Operator.

(i)

Massage shall mean any method of pressure on, friction against, channeling energy through, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body, or other methods designed to create similar effects, to produce increased awareness, relaxation, pain relief, injury rehabilitation, or neuromuscular re-education. Regulations under this Chapter apply to all forms of massage, whether or not it is called massage and whether or not the massage is performed with the patron fully clothed, with or without the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances, or with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments, or other similar preparations commonly used in this practice. For purposes of this definition, the terms "massage," "massage therapy," "bodywork" or any other terms used within the Massage industry shall have the same meaning.

Examples of Massage include, but are not limited to, Swedish massage, sports massage, shiatsu, polarity therapy, rolfing, heller work, reiki, and reflexology. Massage does not include contact with Specified Anatomical Areas, as defined by and prohibited under this Chapter.

(j)

Massage Accessory Use shall mean any establishment having a fixed place of business where Massage occurs either permanently or temporarily in conjunction with a primary permitted land use, and the area where the Massage occurs covers less than 20 percent of the gross floor of the principal use. All Persons Performing Massage shall possess a current, valid and authentic certificate issued by the California Massage Therapy Council. Massage Accessory Use shall not be classified as a Massage Establishment and shall not be required to obtain a Massage Establishment License under this Chapter, but shall be subject to all other applicable provisions of this Chapter and Title 20 of this Municipal Code.

(k)

Massage Business shall mean any Massage business, including any Massage Establishment, Outcall Massage service, or Massage Accessory Use business, as those terms are defined by this Chapter.

(l)

Massage Establishment shall mean any establishment having a fixed place of business where any Person Performs Massage. For purposes of this definition, any establishment that performs Massage and which operates as a bathhouse as that term is defined in Chapter 5.46 of this Municipal Code, including but not limited to, wet and dry heat rooms, pools, and hot tubs, shall be deemed a Massage Establishment.

(m)

Massage Establishment License shall mean a license issued by the City to operate a Massage Establishment as required by this Chapter.

(n)

Massage Technician shall mean any Person who performs Massage, as defined by this Chapter, on another Person for any form of consideration whatsoever. For purposes of this definition, the terms "massage therapist," "massage practitioner" or any other terms used within the Massage industry shall have the same meaning.

(o)

Person shall mean any natural person, firm, association, business, trust, organization, partnership, corporation, company, joint venture, or any other entity or combination of individuals of whatever form or character.

(p)

Perform Massage shall mean the act of performing, providing, offering, delivering, dispensing, engaging in, or carrying on, or permitting to be performed, provided, offered, delivered, dispensed, engaged in, or carried on Massage for any form of consideration whatsoever.

(q)

Operator shall mean any Person who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operations, conduct or activities of a Massage Business.

(r)

Outcall Massage shall mean the act of Performing Massage at any location other than a fixed place of business. For purposes of this definition, the term "off-premises massage" or any other terms used with the Massage industry shall have the same meaning.

(s)

Outcall Massage License shall mean a license issued by the City to Perform Outcall Massage as required by this Chapter.

(t)

Owner shall mean any of the following:

(1)

The sole practitioner of a sole proprietorship that owns a Massage Business;

(2)

Any general partner of a general or limited partnership that owns a Massage Business;

(3)

Any Person who has five percent or greater ownership interest in a corporation that owns a Massage Business;

(4)

Any Person who is a member of a limited liability company that owns a Massage Business;

(5)

All owners of any other type of business entity that owns a Massage Business; or

(6)

Any Person identified as an owner on a Massage Establishment License, Massage Outcall License or any other license, permit or entitlement issued by the City to operate a Massage Business.

(u)

Specified Anatomical Area shall mean any of the following areas of the human body: pubic region, human genitals, perineum, anal region and the areas of the female breast that includes the areola and the nipple.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

(a)

Persons. Except as otherwise provided in this Chapter, it shall be unlawful for any Person to Perform Massage, whether as full-time, part-time or temporary status, as an employee, sole practitioner, or independent contractor of a Massage Business, or in any other capacity within the jurisdiction of the City, unless that Person possesses a current, valid and authentic CAMTC Certificate.

(b)

Massage Businesses. Except as otherwise provided in this Chapter, it shall be unlawful for any Massage Business to operate within the jurisdiction of the City, unless all Persons utilized by the Massage Business to Perform Massage, whether full-time, part-time or temporary status, as an employee, sole practitioner, independent contractor, or otherwise, possess a current, valid and authentic CAMTC Certificate.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

This Section shall apply to the issuance or renewal of a Massage Establishment License or Outcall Massage License. This Section shall not apply to Massage Accessory Use businesses.

(a)

Uniform Licensing Procedure. Except as otherwise provided in this Chapter, the procedure to follow to obtain a Massage Establishment License or Outcall Massage License within the jurisdiction of the City is that set forth in the Uniform Licensing Procedure under Chapter 5.04 of this Municipal Code.

(b)

License Application. An application for a Massage Establishment License or Outcall Massage License shall be filed on a form provided by the City, and shall be signed and submitted under penalty of perjury. A Massage Establishment License or Outcall Massage License application shall include the following information, which must be updated when there is any personnel change to ensure that the City has current information on file at all times relating to the Massage Business, the Owners, Operators and Managers, and all Massage Technicians who Perform Massage or who will Perform Massage at the Massage Business, as applicable:

(1)

Legal name of the Massage Business.

(2)

Form of business under which the Massage Business will operate (i.e., corporation, limited liability company, general or limited partnership, sole proprietorship, or any other form).

(3)

Address of the Massage Establishment. This subdivision shall not apply to Outcall Massage businesses.

(4)

Legal name, address and telephone number of the real property owner of the premises at which the Massage Establishment will operate, and an executed copy of the lease or rental agreement for the premises. This subdivision shall not apply to Outcall Massage businesses.

(5)

Complete description of all services to be provided at the Massage Business.

(6)

Legal name of all Massage Technicians who will Perform Massage at the Massage Business, and a copy of their current, valid and authentic CAMTC Certificate. The legal name of any Massage Technician hired after the submittal of an application must be reported to the City prior to the Massage Technician Performing any Massage.

(7)

Legal name of all Owners, Operators and Managers of the Massage Business.

(8)

Current residential address and telephone number, previous two residential addresses, and current business address and telephone number of all Owners, Operators and Managers of the Massage Business.

(9)

Current, valid and authentic driver's license and/or photo identification card issued by a State or Federal government agency, or other photographic identification bearing a bona fide seal by a foreign government, of all Owners, Operators and Managers of the Massage Business.

(10)

Date of birth, gender, height, weight, color of hair, and color of eyes of all Owners, Operators and Managers of the Massage Business.

(11)

Signed statement by each Owner, Operator and Manager of the Massage Business who does not possess a current, valid and authentic CAMTC Certificate, authorizing law enforcement to conduct a background check of that individual, and including the following: (i) any and all aliases and fictitious names used by the individual within the last five years; (ii) the individual's business, occupation and employment history for the five years preceding the date of the Massage Establishment License or Outcall Massage License application, as applicable; (iii) the inclusive dates of such employment history; (iv) the name and address of any Massage business or similar business owned, operated or managed by the individual; and (v) any other information as may be reasonably required by an Inspector to identify the individual and to ensure compliance with all applicable laws, rules and regulations.

(12)

Signed statement by each Owner, Operator and Manager of the Massage Business acknowledging the following: (i) all of the information contained in the Massage Establishment License application or Outcall Massage License is true and correct; (ii) all Owners, Operators and Managers are familiar with the requirements of this Chapter and all applicable requirements of Title 20 of this Municipal Code, and shall communicate those requirements to employees of the Massage Business, and also to patrons of the Massage Business on inquiry or as called for by specific circumstances; (iii) all Owners, Operators and on-duty Managers are responsible for the Massage Business and the conduct of all Persons who Perform Massage at the Massage Business, and ensuring compliance with this Chapter and all applicable requirements of Title 20 of this Municipal Code; (iv) any act or omission of any employee of the Massage Business constituting a violation of any provision of this Chapter shall be deemed to be an act or omission of the Owner, Operator and on-duty Manager for purposes of determining whether to suspend or revoke or deny the renewal of a Massage Establishment License or Outcall Massage License, as applicable, and/or City business license; and (v) failure to comply with the California Business and Professions Code Sections 4600 et seq., or with any local, State or Federal laws, rules or regulations, and/or the provisions of this Chapter may result in revocation of the Massage Establishment License or Outcall Massage License, as applicable, and/or City business license.

(13)

Copy of a current and valid public health permit to operate a Massage Establishment issued by the Health Department, unless deemed to be exempt from this requirement pursuant to Sections 5.44.070(y) or 5.44.150 of this Municipal Code, or some other applicable City or Health Department exemption. This subdivision shall not apply to Outcall Massage businesses.

(c)

Renewal Application. An annual renewal application shall be required for Massage Establishment Licenses and Outcall Massage Licenses. Renewal applications shall be filed on a form provided by the City, shall be signed and submitted under penalty of perjury, and shall include updated information to the information required under subsection (b) of this Section when there is any personnel change to ensure that the City has current information on file at all times relating to the Massage Business, the Owners, Operators and Managers, and all Massage Technicians who Perform Massage or who will Perform Massage at the Massage Business.

(d)

License Application Fee, Renewal Application Fee. The nonrefundable Massage Establishment License or Outcall Massage License application fee, and the nonrefundable Massage Establishment License or Outcall Massage License annual renewal fee, shall be set by resolution adopted by the City Council. The appropriate fee shall accompany the submission of each Massage Establishment License or Outcall Massage License application, or renewal application, as applicable, to defray in part the reasonable costs of administration, inspection, investigation and enforcement of this Chapter.

(e)

Approval or Denial of License. The Issuing Officer shall issue a license to operate a Massage Establishment or Outcall Massage business within the jurisdiction of the City to any Massage Establishment or Outcall Massage business, as applicable, that demonstrates the following:

(1)

The Massage Business, the Owners, Operators and Managers, and all Massage Technicians who Perform Massage or who will Perform Massage at the Massage Business, as applicable, would comply with all applicable laws, including but not limited to, the City's building, zoning, land use approvals, business license regulations; applicable Health Department regulations; and all other applicable local, State and Federal laws, rules and regulations.

(2)

The Massage Business employs or uses only Massage Technicians to Perform Massage who possess a current and valid CAMTC Certificate.

(3)

The Owners, Operators and Managers of the Massage Business have provided all information, documentation, and assurances required by this Chapter to the City; have not failed to reveal any fact material to qualification; and have not supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria.

(4)

The background check for any Owners, Operators and Managers authorized by this Chapter shows that such Owners, Operators have not been required to register under the provisions of Penal Code Section 290 (sex offender registration); has not been convicted of a violation of Penal Code Section 266(h) (pimping), 266(i) (pandering), 314 (indecent exposure), 315 (keeping or residing in a house of ill- fame for the purposes of prostitution or lewdness), 316 (keeping a disorderly house, disturbing the peace for the purposes of assignation or prostitution), 318 (prevailing upon any Person to visit a place for prostitution), 647(a) (soliciting or engaging in lewd or dissolute conduct in a public place), 647(b) (soliciting or engaging in prostitution), 653.22 (loitering with intent to commit prostitution), 653.23 (supervision of prostitute), or has not pled nolo contendere or has not been convicted of a violation of any lesser related offense, including, but not limited to, Penal Code Section 415, in satisfaction of, or as a substitute for, any of the aforementioned offenses; has not been convicted of any felony drug-related offense involving the controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058; has not been convicted of any act involving theft, dishonesty, fraud, deceit or moral turpitude; has not been convicted in any other State of any offense which, if committed or attempted in this State, would have been punishable as one or more of the aforementioned offenses; has not had an individual or business permit, certificate or license with any agency, board, City, county, territory or State denied, revoked, restricted, or suspended within the last ten years; and has not been subject to an injunction for nuisance under Penal Code Sections 11225 through 11235 (red light abatement) within the last ten years.

The Issuing Officer may deny an application for a Massage Establishment License or Outcall Massage License or renewal application, as applicable, within the jurisdiction of the City to any Massage Business that fails to demonstrate the foregoing requirements and/or for any reason specified under Section 5.04.090 of this Municipal Code.

(f)

Transfer of License. A Massage Establishment License or Outcall Massage License issued by the City pursuant to this Chapter shall not be transferred, sold, or assigned to any other Person or entity, except with the prior written approval of the City. A written request for such transfer shall contain the same information for the new ownership as is required on any application for a new Massage Establishment License or Outcall Massage License issued under this Chapter. No Massage Establishment License, Outcall Massage License or City business license, as applicable, that is revoked or suspended by the City pursuant to this Chapter or any other provision of this Municipal Code shall be transferred to any other Person or entity for a period of five years from the date of such revocation or suspension. Any such transfer, sale, or assignment, or attempted transfer, sale or assignment of a Massage Establishment License, Outcall Massage License or City business license, as applicable, in violation of this Chapter is hereby declared invalid and the License shall become void effective on the date of such transfer, sale, or assignment, or attempted transfer, sale or assignment.

(g)

Change of Location. A change of location of a licensed Massage Establishment shall be approved by the City and law enforcement provided the Massage Establishment is in compliance with all applicable provisions of this Chapter and all local laws, rules and regulations, and subject to all applicable provisions of Title 20 of this Municipal Code. This subdivision shall not apply to Outcall Massage businesses.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

(a)

Information Provided to City. In addition to all other requirements for obtaining a City business license, Massage Accessory Use businesses must provide the following information to the City, signed and submitted under penalty of perjury, which must be updated when there is any personnel change to ensure the City has current information on file at all times relating to the Massage Accessory Use business, the Owners, Operators and Managers, and all Massage Technicians who Perform Massage or who will Perform Massage at the Massage Accessory Use business:

(1)

Signed statement by each Owner, Operator and Manager of the Massage Accessory Use business who does not possess a current, valid and authentic CAMTC Certificate, authorizing law enforcement to conduct a background check of that individual, and including the following: (i) any and all aliases and fictitious names used by the individual within the last five years; (ii) the individual's business, occupation and employment history for the past five years; (iii) the inclusive dates of such employment history; (iv) the name and address of any Massage business or similar business owned, operated or managed by the individual; and (v) any other information as may be reasonably required by an Inspector to identify the individual and to ensure compliance with all applicable laws, rules and regulations.

(2)

Signed statement by each Owner, Operator and Manager of the Massage Accessory Use business acknowledging the following: (i) all of the information contained in the application is true and correct; (ii) all Owners, Operators and Managers are familiar with the requirements of this Chapter and all applicable requirements of Title 20 of this Municipal Code, and shall communicate those requirements to employees of the Massage Business, and also to patrons of the Massage Business on inquiry or as called for by specific circumstances; (iii) all Owners, Operators and on-duty Managers are responsible for the Massage Accessory Use business and the conduct of all Persons who Perform Massage at the Massage Accessory Use business, and ensuring compliance with this Chapter and all applicable requirements of Title 20 of this Municipal Code; (iv) any act or omission of any employee of the Massage Accessory Use business constituting a violation of any provision of this Chapter shall be deemed to be an act or omission of the Owner, Operator and on-duty Manager for purposes of determining whether to suspend or revoke or deny the renewal of a City business license; and (v) failure to comply with the California Business and Professions Code Sections 4600 et seq., or with any local, State or Federal laws, rules or regulations, and/or the provisions of this Chapter may result in revocation of the City business license.

(3)

Copy of a current and valid public health permit to operate a Massage Accessory Use establishment issued by the Health Department, unless deemed to be exempt from this requirement pursuant to Sections 5.44.070(y) or 5.44.150 of this Municipal Code, or some other applicable City or Health Department exemption.

(b)

Transfer of City Business License. No City business license issued to a Massage Accessory Use business that is revoked or suspended by the City pursuant to this Chapter or any other provision of this Municipal Code shall be transferred to any other Person or entity for a period of five years from the date of such revocation or suspension. Any such transfer, sale, or assignment, or attempted transfer, sale or assignment of a City business license in violation of this Chapter is hereby declared invalid and the license shall become void effective on the date of such transfer, sale, or assignment, or attempted transfer, sale or assignment.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

Editor's note— Formerly § 5.44.070 pertained to massage establishments operating requirements, which was deleted by Ord. No. 2019-1469, and added new provisions as herein set out above.

No Person shall engage in, conduct, carry on or Perform, or permit to be engaged in, conducted, carried on or Performed, Massage within the jurisdiction of the City unless all of the following requirements are met, and the Person is in compliance with all applicable provisions of Title 20 of this Municipal Code:

(a)

CAMTC Certificate to City. No Owner, Operator or Manager shall operate a Massage Business unless a copy of a current and valid CAMTC Certificate is provided to the City for each Massage Technician employed or utilized to Perform Massage at the Massage Business, prior to Performing any Massage.

(b)

CAMTC Certificate Posted in Public View. No Owner, Operator or Manager shall operate a Massage Business unless an original CAMTC Certificate for each Massage Technician employed or utilized to Perform Massage at the Massage Business is posted in public view.

(c)

CAMTC Identification Card Worn at All Times. No Owner, Operator or Manager shall operate a Massage Business unless an original CAMTC-issued identification card is worn and clearly visible on each Massage Technician employed or utilized to Perform Massage, at all times while on-site at the Massage Business, whether or not the Massage Technician is Performing Massage.

(d)

Hours of Operation. Massage shall be Performed only between the hours of 8:00 a.m. and 10:00 p.m. No Massage shall be Performed between the hours of 10:00 p.m. and 8:00 a.m.

(e)

Prohibited Locations. No Massage shall be Performed in a hotel or motel room, or in the private residence of the Massage Technician Performing Massage.

(f)

List of Services. A list of the services available and the costs of such services shall be posted in an open and conspicuous public place on the premises of a Massage Business. The services shall be described in English. No Owner, Operator or Manager shall permit to be offered or performed, and no Massage Technician shall offer or perform, any service other than those posted on the list of available services, nor shall any Owner, Operator, Manager, or Massage Technician request or charge a fee for any service other than those included on the list of available services.

(g)

Massage Log. For each Massage Performed, a Massage Business shall keep a complete and legible written record of the following information stated in English on a form provided by the City, as may be updated from time to time by the City, and available on the City's website under the "Massage Businesses" page, or by some other method that provides substantially the same information as required by this subdivision: (i) the date and hour the Massage was Performed; (ii) the service received; (iii) the name or initials of the employee entering the information; and (iv) the name of the Massage Technician Performing the Massage. Such records shall be retained on the premises of a Massage Business for not less than a period of two years and shall be immediately available for inspection and copying by an Inspector during business hours.

(h)

Signage. A recognizable and legible sign complying with the sign regulations of this Municipal Code shall be posted at the main entrance of each Massage Establishment identifying the premises as a Massage Establishment. This subdivision shall not apply to Massage Accessory Use or Outcall Massage businesses.

(i)

Lighting. A minimum light level of no less than five-foot candles at any point within the room shall be maintained in each room or enclosure where Massage is Performed.

(j)

Dressing Rooms, Lockers, Secured Area to Deposit Valuables. Dressing rooms, lockers and a secured facility for the protection of valuables shall be provided for patrons. This subdivision shall not apply to Outcall Massage businesses.

(k)

Lavatories, Bathing Facilities, Saunas, Steam/Heat/Vapor Rooms. This subdivision shall not apply to Outcall Massage businesses.

(1)

Lavatories shall be provided for patrons with hot and cold running water, soap and single service towels in wall-mounted dispensers.

(2)

All walls, floors and ceilings in lavatories, bathing facilities, saunas, steam/heat/vapor rooms, and all other physical facilities must be in good repair and maintained in a clean and sanitary condition. Steam/heat/vapor rooms shall be thoroughly cleaned and disinfected with a disinfectant approved by the Health Department each day that the Massage Business is in operation.

(3)

Walls in lavatories, bathing facilities, saunas, and steam/heat/vapor rooms shall be smooth, waterproof and kept in good repair.

(4)

Floors in lavatories, bathing facilities, saunas and steam/heat/vapor rooms shall have a waterproof covering that extends up the walls at least six inches and shall be covered at the floor-wall juncture with at least a three-eighths inch radius.

(5)

Separate bathing facilities, saunas and steam/heat/vapor rooms shall be provided for male and female patrons if male and female patrons are to be served simultaneously.

(l)

Wash Basins for Employee Use. A minimum of one separate wash basin provided shall be provided for employees with hot and cold running water, soap and single service towels in a wall-mounted dispenser. Wash basins for employee use shall be separate from any wash basins located in lavatories. This subdivision shall not apply to Outcall Massage businesses.

(m)

Linens. Towels, sheets, and linens of all types and items for personal use of Massage Technicians shall be clean and freshly laundered. Towels, clothes, and sheets shall not be used by more than one Person unless the same has first been laundered. Heavy white paper may be substituted for sheets provided that such paper shall not be used by more than one Person and must be discarded into a sanitary receptacle after such use.

(n)

Storage Cabinets, Containers for Linens. Cabinets shall be provided for the storage of clean linens. Containers approved by the Health Department shall be provided for the storage of all soiled linens. This subdivision shall not apply to Outcall Massage businesses.

(o)

Massage Table Pads. Pads used on Massage tables shall be covered in a workmanlike manner with durable washable plastic or other acceptable waterproof material.

(p)

Sterilized Instruments. Disinfecting agents and sterilizing equipment approved by the Health Department shall be provided for any instruments used in Perform Massage.

(q)

Ventilation. Minimum ventilation shall be provided in accordance with the building code of the City. This subsection shall not apply to Outcall Massage businesses.

(r)

Plumbing and Electrical. All plumbing and electrical installations shall be installed under permit in accordance with current local, State and federal laws and regulations, and subject to inspection by the Inspector. This subsection shall not apply to Outcall Massage businesses.

(s)

Unlocked Exterior Doors. No exterior door which is regularly used by the public for ingress or egress shall be locked during business hours, unless the Massage Business is owned by only one individual with one or no employees or independent contractors, provided that any such exterior door is equipped with panic hardware or other similar equipment that would provide an accessible form of egress in the event of an emergency. This subdivision shall not apply to Outcall Massage businesses.

(t)

Inspection of Unoccupied Rooms and Areas. All unoccupied rooms and areas shall be subject to reasonable inspection during business hours. This subdivision shall not apply to Outcall Massage businesses.

(u)

Specified Anatomical Areas.

(1)

No Owner, Operator, Manager or Massage Technician shall Perform Massage on or intentionally touch, or permit the Performance of Massage on or intentional touching of, the Specified Anatomical Areas of another Person, regardless of whether the contact is over or under the patron's clothing.

(2)

No Owner, Operator, Manager or Massage Technician shall enter any area which is used by the patrons, unless the patron's Specified Anatomical Areas are fully covered, except to use the lavatory or dressing room.

(v)

Professional Attire. No Owner, Operator or Manager shall permit any Massage Technician to be on the premises of a Massage Business during business hours to Perform Massage or be available to Perform Massage, unless the Massage Technician is dressed in professional attire based on the custom and practice of the Massage profession in California. The uniform shall be made of non- transparent material and may not expose any Specified Anatomical Area. Swim attire, lingerie and undergarments may not be used as a uniform or displayed as part of a uniform. Appropriate swim attire may be worn while Performing a water-based Massage modality approved by CAMTC.

(w)

No Residential/Sleeping Use. No Massage Business shall be used for residential or sleeping purposes. No Owner, Operator or Manager shall permit any Person, including but not limited to any Owner, Operator, Manager, or Massage Technician to live on the premises of a Massage business.

(x)

Owner, Operator or Manager On-Site. An Owner, Operator or Manager approved by the City must be on the premises of a Massage Business at all times during business hours.

(y)

Health Department Exemptions for Existing Massage Businesses. Any Existing Massage Business that was previously determined by the City and/or the Health Department to be exempt from the requirement to obtain a public health permit issued by the Health Department to operate a Massage Business, shall not be required to comply with Subsections (k)(3), (4) and (l) under this Section or Subsection 5.44.060(b)(13) of this Municipal Code during the period of time that the Massage Business operates in its current location. This exemption shall no longer apply once the Massage Business moves to any other location within the City. The exemption under this subsection shall not exempt the Massage Business from compliance with all other applicable local, State and Federal laws, ordinances, rules and regulations, including, but not limited to, the provisions of this Municipal Code and the Zoning Ordinance. This subsection shall not apply to Outcall Massage businesses.

(z)

Independent Contractors. Any independent contractor(s) utilized by the Massage Business to Perform Massage must obtain a City business license and provide a current and valid CAMTC certificate to the City prior to Performing Massage.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

Editor's note— Formerly § 5.44.080 pertained to outcall massage licenses, which was deleted by Ord. No. 2019-1469. Subsequently existing sections 5.44.090—5.44.180 were renumbered accordingly.

(a)

All advertising to Perform Massage by any Massage Technician within the jurisdiction of the City shall include the name under which the Massage Technician is certified by CAMTC and their CAMTC Certificate number. This requirement shall apply to any and all types of advertising, including, but not limited to, business cards, written pamphlets, social media, and Internet websites, including online bulletin boards.

(b)

All advertising to Perform Massage at any Massage Business within the jurisdiction of the City shall include the name of the Massage Business and the City business license number. This requirement shall apply to any and all types of advertising, including, but not limited to, business cards, written pamphlets, social media, and Internet websites, including online bulletin boards.

(c)

No Person, Massage Technician or Massage Business shall engage in sexually suggestive advertising, including sexually suggestive photographs and language, related to Massage services.

(d)

No Person, Massage Technician or Massage Business shall place, publish or distribute, or cause to be placed, published or distributed, any advertising matter related to performing any service prohibited under this Chapter.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

The investigating and enforcing officials, including, but not limited to, any Inspector and the Health Department, shall have the right to enter the premises of any Massage Business from time to time during business hours for the purpose of making a reasonable inspection to observe and enforce compliance with the provisions of this Chapter and all other applicable local, State and Federal laws, rules or regulations.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

Every Person, except those Persons who are specifically exempt from this Chapter, whether acting as an individual; employee; independent contractor; Owner, employee or independent contractor of the Owner; Operator, employee or independent contractor of the Operator; Manager, employee or independent contractor of the Manager; or acting in any other role for the individual, employee, independent contractor, Owner, Operator or Manager, who violates any provision of this Chapter shall be guilty of a misdemeanor. Upon a conviction under this subsection, the Court shall, in addition to any other punishments it imposes, impose a fine of $100.00, no part of which shall be suspended.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

It shall be unlawful and a public nuisance for any Person to operate, conduct or maintain a Massage Business contrary to the provisions of this Chapter. The City may, in addition to, or in lieu of, prosecuting a criminal action hereunder, commence proceedings for the abatement, removal and/or enjoinment thereof in any manner provided by law.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

(a)

Grounds for Suspension or Revocation. In addition to the grounds for suspension or revocation imposed under Chapter 5.04 of this Municipal Code, a City business license, Massage Establishment License and/or Outcall Massage License issued under this Chapter may be suspended or revoked upon any of the following grounds:

(1)

An Owner, Operator or Manager of the Massage Business is required to register under the provisions of Penal Code Section 290 (sex offender registration); is convicted of a violation of Penal Code Sections 266(i) (pandering), 314 (indecent exposure), 315 (keeping or residing in a house of ill-fame), 316 (keeping a disorderly house, disturbing the peace), 318 (prevailing upon Person to visit a place for prostitution), 647(a) (soliciting or engaging in lewd or dissolute conduct in a public place), 647(b) (soliciting or engaging in prostitution), 653.22 (loitering with intent to commit prostitution), 653.23 (supervision of prostitute); or has pled nolo contendere or has been convicted of a violation of any lesser related offense, including, but not limited to, Penal Code Section 415, in satisfaction of, or as a substitute for, any of the aforementioned offenses; has been convicted of any felony drug-related offense involving the controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058; has been convicted of any act involving theft, dishonesty, fraud, deceit or moral turpitude; has a business permit or license denied, revoked, restricted, or suspended by any agency, board, City, county, territory, or State; is subject to an injunction for nuisance pursuant to Penal Code Sections 11225 through 11235 (red light abatement); or is convicted in another State of any offense which, if committed or attempted in this State, would have been punishable as one or more of the aforementioned offenses.

(2)

A material misrepresentation was included on the application for a City business license, Massage Establishment License or Outcall Massage License, renewal or transfer.

(3)

Violations of California Business and Professions Code Sections 4600 et seq., any local, State or Federal laws, rules or regulations, and/or the provisions of this Chapter have occurred on the premises of the Massage Business.

(4)

An Owner, Operator or Manager has failed to comply with one or more of the Massage operating requirements under this Chapter.

(5)

A Massage Technician, Owner, Operator or Manager has failed to comply with the Massage advertising requirements under this Chapter and/or State law.

(6)

Any repeat violations or any arrests that result in criminal charges shall provide a prima facie basis for revocation.

(7)

A Massage Establishment License or Outcall Massage License that is not renewed within 30 days after the expiration date shall be automatically suspended. If not renewed, a License shall be automatically revoked six months after the expiration date. Additionally, civil, criminal and/or administrative citations may be issued during this interim period for failure to maintain the appropriate Massage Establishment License or Outcall Massage License. To reinstate the paid status of a Massage Establishment License or Outcall Massage License that has been suspended due to the failure to timely pay the renewal fee, the Owner or Operator must submit the Massage Establishment License or Outcall Massage License renewal fee plus a reinstatement fee of ten percent of the Massage Establishment License or Outcall Massage License renewal fee, contingent on City approval and subject to all applicable provisions of Title 20 of this Municipal Code.

(b)

Appeal of Suspension or Revocation. The appeal procedures for the suspension or revocation of a Massage Establishment License or Outcall Massage License shall be those set forth in Chapter 5.04 of this Municipal Code.

(c)

Prohibited Operations. Upon revocation of a City business license, Massage Establishment License and/or Outcall Massage License, the licensee shall not operate a Massage Business within the jurisdiction of the City for a period of five years from the date of such revocation.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

Unless expressly exempted by this Chapter, the provisions of this Chapter shall be applicable to all Massage Technicians and Massage Businesses described herein, whether the activities herein described were established before or after July 13, 2017. Any existing Massage Technician who Performs Massage and any Existing Massage Business that employs or utilizes Persons to Perform Massage within the jurisdiction of the City, that operates with a valid and current business license issued by the City and all other necessary approvals as of July 13, 2017, and that operates in compliance with all local, State and Federal laws, ordinances, rules and regulations, must be in full compliance with Section 5.44.050 of this Chapter no later than July 13, 2018 if the Massage Technician or Existing Massage Business was previously exempt by the City from the requirement to obtain a CAMTC Certificate, and must be in full compliance with all other requirements of this Chapter and Title 20 of this Municipal Code no later August 13, 2017.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

This Chapter shall not apply to the following classes of Persons, and no Massage Establishment License or Outcall Massage License shall be required to Perform Massage by or under the control and direction of the following Persons or entities:

(a)

Physicians, surgeons, chiropractors, osteopaths, physical therapists, occupational therapists, exercise physiologists, and acupuncturists who are duly licensed to practice their respective professions in the State of California.

(b)

Registered Nurses, Practical Nurses and Licensed Vocational Nurses who are licensed to practice under the laws of this State.

(c)

Hospitals, nursing homes, mental health facilities, or any other health facility duly licensed by the State of California.

(d)

Trainers of any amateur, semiprofessional or professional athletes or athletic teams, or athletic trainers hired by a local, State or Federal government agency, while engaging in their training responsibilities for and with athletes; and trainers working in conjunction with a specific athletic event, such as track meets triathlons, or similar single occurrence athletic or recreational events.

(e)

Barbers, beauticians, cosmetologists, aestheticians and manicurists who are duly licensed under the laws of the State of California while engaging in practices within the scope of their licenses.

(f)

Any educational institution regulated by the State of California, including any portion of the institution providing Massage services, such as student clinics and work study programs, regulated under such State license.

(g)

Any other business or profession exempt from the provisions of this Chapter by State law. Any Person who Performs Massage by or under the control and direction of the Persons or entities listed in this Section shall possess a current, valid and authentic CAMTC Certificate.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

If any section, subsection, sentence, clause or phrase of this Chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Chapter. The City Council hereby declares that it would have adopted the Chapter and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase is declared invalid.

(Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)

(a) All fees established by this Chapter shall be reviewed annually and adjusted, as necessary, by the City Manager, or his designated representative, to determine whether such fees are adequate to cover the cost of implementing the provisions of this Chapter.

(b) All fees established by this Chapter shall be paid to the City for deposit in general fund revenue to be allocated as determined by the City to defray the cost in enforcing the provisions of this Chapter.

(Ord. No. 2017-1443 6-3-2017, repeals Ord. No. 88-784, 5-24-88; Ord. No. 2019-1469, § 2(Exh. A), 1-22-2019)