San Marino Municipal Code Art. 11 Massage Establishments and Therapists

It is the purpose and intent of this article to provide for the orderly regulation of massage therapists and massage establishments, in the interest of the public health, safety and welfare. The city wishes both to recognize the practice of massage as a valid professional field and to discourage prostitution and other unlawful activity which otherwise may become associated with some massage establishments.

This article relies upon the state certification process of the California massage therapy council, as set forth in California Business And Professions Code section 4600 et seq. In addition, this article provides certain minimum standards for the operation of massage establishments, their managing employees, and massage therapists and practitioners.

This article is adopted under the authority of Government Code sections 51030 through 51034, Government Code section 37101, Business And Professions Code section 16000, and California Constitution article XI, section 7. (Ord. 0-15-1304, 1-13-2016)

For purposes of this article:

CALIFORNIA MASSAGE THERAPY COUNCIL OR CAMTC: The California massage therapy council created under Business And Professions Code section 4602.

CERTIFIED MASSAGE PRACTITIONER OR PRACTITIONER: A person who is currently certified as a massage practitioner by the CAMTC pursuant to Business And Professions Code section 4604.2. A certified massage practitioner who is an independent contractor is one who works at a massage establishment (or has an outcall massage service), but is not a salaried employee and does not share a percentage of massage therapy proceeds with the owner or operator of a massage establishment.

CERTIFIED MASSAGE THERAPIST OR THERAPIST: A person who is currently certified as a massage therapist by the CAMTC pursuant to Business And Professions Code section 4604. A certified massage therapist who is an independent contractor is one who works at a massage establishment (or has an outcall massage service), but is not a salaried employee and does not share a percentage of massage therapy proceeds with the owner or operator of a massage establishment.

CHIEF: The San Marino chief of police or his/her designee.

DEPARTMENT: The police department of the city of San Marino.

MASSAGE ESTABLISHMENT OR ESTABLISHMENT: A physical structure or place where certified massage therapists and/or certified massage practitioners practice massage as provided in Business And Professions Code section 4601(f), or where any person, firm, association, partnership, corporation engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on, any business of giving or providing massage, as defined herein. The following are not considered massage establishments under this article: a state licensed hospital, nursing home, sanatorium, physiotherapy establishment, or other state licensed physical or mental health facility.

MASSAGE OR BODYWORK: The application of various techniques to the muscular structure and soft tissues of the human body, as defined in Business And Professions Code section 4601(e). Application of massage and bodywork techniques may include, but is not limited to, stroking, kneading, tapping, compression, vibration, rocking, friction, pressure and similar techniques. Examples of massage include Swedish massage, sports massage, shiatsu, polarity therapy, rolfing, hellerwork, acupressure, and reflexology. Massage and bodywork have the same meaning.

Massage also means any method of treating the external parts of the human body by means of pressure on or friction against; or stroking, kneading, rubbing, tapping, pounding; or stimulating the external parts of the human body with the hands or other parts of the human body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations.

Massage excludes: diagnosis, prescription, intentional manipulation or adjustments of the skeletal structure, or any other service, procedure or therapy which requires a state issued license to practice including chiropractic, osteopathy, orthopedics, physical therapy, podiatry, or medicine. Massage does not include: massage of the face and scalp by state licensed barbers; massage of the scalp, face, neck, hands, feet below the calf, or body extending from the clavicles upward by state licensed cosmetologists; massage of the face, neck, arms, or the body extending from the clavicles upward; or, massage of the hands and feet below the calf by state licensed manicurists; provided that each is performing such activities in a structure, facility, or place licensed by the city to provide such services.

OUTCALL MASSAGE SERVICE: A business which provides massage at a location designated by the client or the massage practitioner or therapist, other than at a massage establishment. (Ord. 0-15-1304, 1-13-2016)

A. Certification: No person may practice massage in the city who is not a certified massage therapist or certified massage practitioner.

B. Requirements: Every certified massage therapist and certified massage practitioner providing or offering massage in the city must:

1. Work at a city permitted massage establishment as an employee or independent contractor; or

2. Obtain a city business license as an independent contractor if providing massage for compensation in the therapist's or practitioner's own home, or providing outcall massage services.

C. Other City Permits: Massage therapists and practitioners must also obtain: 1) a city business license, and 2) a home occupation permit if massage is practiced at the therapist's or practitioner's home. If a massage therapist is an independent contractor of a massage establishment, he or she must obtain a city business license. (Ord. 0-15-1304, 1-13-2016)

A. Massage Establishment: No person may own or operate a massage establishment in the city unless:

1. Each person administering massage (whether as an employee or independent contractor) is either a certified massage therapist or a certified massage practitioner; and

• 2. The owner obtains, and continues to maintain, a current massage establishment permit; and
• 3. The massage establishment complies with all requirements of the city zoning code; and
• 4. The massage establishment is operated in full and complete compliance with this code.

B. Massage Establishment Permit Application Procedure:

1. Permit Requirements For Owners: The owner of a proposed massage establishment shall be the only person eligible to obtain a massage establishment permit for such business. The owner shall not be eligible to obtain a massage establishment permit unless the owner is at least eighteen (18) years of age. A separate permit is required for each massage establishment location.

2. Application Procedures: The following shall be submitted to the chief at the time of application for a massage establishment permit:

a. A completed application form signed by: 1) the applicant; and 2) either the record owner of the property or the lessor of the premises (if the business premises are leased to the applicant's business) where the massage establishment is to be conducted. The application shall include the applicant's full legal name and contact information, the address where the applicant desires to do business, and such other information as the department may reasonably require. Every person owning any interest in the proposed massage establishment must file an application, although only one permit will be issued at a time for a location.

b. Background check. Each applicant shall submit the following:

(1) Information related to the applicant's business, occupation and employment history for the ten (10) years preceding the date of application, and the inclusive dates of same.

(2) The name and address of any massage business or other like establishment owned or operated by the applicant, the name of all partners and co-owners in each business, and a description of any discipline, and permit or license suspension or revocation for each such business.

(3) A description of any other business located in the city of San Marino, even if not massage related, that is owned or operated by the applicant.

(4) Information regarding any felony or misdemeanor convictions within the last five (5) years, any outstanding warrants for arrest and any pending criminal cases.

(5) Information as to whether or not the applicant is a registered sex offender.

(6) The applicant's fingerprints on a form provided by the department. Any fees for the fingerprints shall be paid by the applicant.

c. Two (2) color photographs, taken within six (6) months prior to the date of the application, that clearly show the applicant's face. Any fees for the photographs shall be paid by the applicant.

d. A written description of the proposed massage establishment and how it will satisfy the requirements of this article.

e. A written register of the massage therapists and practitioners required by subsection 11.11.05A1 of this article.

f. A statement signed by the applicant certifying under penalty of perjury that all of the information submitted in connection with the application is true and correct.

g. A nonrefundable application fee in an amount set by resolution of the city council.

3. Approval Or Denial Of Permit: The chief shall, within sixty (60) calendar days of the filing of a complete application, approve and issue the massage establishment permit if the requirements of this article have been met; otherwise the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing by first class mail, postage prepaid. If the application is denied, the chief shall attach to the notice a statement of the reasons for the denial. The time period set forth in this subsection shall not be extended except upon the written consent of the applicant. The decision of the chief is final.

4. Grounds For Denial: The chief may deny a massage establishment permit application if any of the following is true:

a. If the applicant has been convicted within the last five (5) years of any felony or misdemeanor, or has an outstanding warrant for his or her arrest or a pending criminal case, regarding an offense having a reasonable relationship to the functions of a permittee.

b. The application was falsified in any material respect.

c. The applicant is required to register as a sex offender in any state.

d. There has been a criminal investigation resulting in arrest related to the operation of the massage establishment business within the last five (5) years.

e. Within the previous five (5) years, a massage establishment permit issued to the applicant's business location, was revoked.

C. Permits Nontransferable:

1. No person shall operate a massage establishment under the authority of a massage establishment permit at any place other than the address of the massage establishment stated in the application for the permit. The chief may approve a change of location, provided the massage establishment complies with all ordinances and regulations of the city.

2. No massage establishment permit issued pursuant to this article shall be transferable to any other person or entity.

3. Any attempt to transfer a massage establishment permit is hereby declared invalid and the permit shall automatically become void as of the date of such attempted transfer.

4. Nothing in this section shall prevent the chief from approving a second massage establishment permit for a single location provided that the holder of the massage establishment permit previously approved for such location consents in writing to the automatic expiration of such previously approved permit upon the effective date of such second permit.

D. Conditions Of Massage Establishment Permit:

1. Every massage establishment shall display at all times during business hours the permit issued pursuant to the provisions of this article for such business. The permit shall be displayed in a conspicuous place so that it may be readily seen by all persons entering the massage establishment.

2. If an individual's CAMTC certification is suspended or revoked or if the individual is not CAMTC certified, the massage establishment may not allow that person to provide massage services, including outcall massage services, at or through the massage establishment business.

3. The massage establishment must notify the city immediately upon the establishment's receipt of notice of any disciplinary action taken by the CAMTC regarding any of the establishment's massage therapists or practitioners and submit a copy of any notice or order to the chief.

4. Any act or omission of anyone providing massage or performing any other service at the establishment's location, whether as an employee or an independent contractor, which constitutes a violation of this article or grounds for revocation of a massage establishment permit, shall also be deemed to be an act or omission of the massage establishment and its owner(s).

5. Every massage establishment must be operated at all times in compliance with all federal, state and local laws, and the requirements of this article.

E. Term Of Permit: A massage establishment permit issued under this article shall be valid for twenty four (24) months from the date of issuance unless suspended or revoked.

F. Renewal: A holder of a massage establishment permit issued under this article shall submit an application for renewal no later than sixty (60) calendar days prior to the expiration of the permit. The renewal application shall be submitted together with a nonrefundable renewal fee in an amount established by resolution of the city council. Applications for renewal of a massage establishment permit shall be processed in accordance with the procedures governing initial applications.

G. Grounds For Suspension Or Revocation: The chief shall suspend or revoke a massage establishment permit for the following causes:

1. The permittee has made any false, misleading or fraudulent statement of material fact in any application, report or record required to be filed with the city.

2. The permittee, or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has failed to comply with any of the requirements or conditions of this article.

3. An individual that is not a certified massage therapist or a certified massage practitioner, or whose CAMTC certification is suspended or revoked, has performed or provided massage at the massage establishment.

4. The permittee, or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has allowed or permitted, with or without personal knowledge, the occurrence of criminal activity on the premises of the massage establishment business.

5. Substantial evidence exists that one or more acts prohibited under California Penal Code sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22, or any successor provisions thereto, have taken place on the premises of the massage establishment, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the permittee.

6. The permittee, or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has committed a misdemeanor, felony or violation of this article in the conduct of the massage establishment business.

7. The permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or sections 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the state of California.

8. The permittee, or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has failed to abide by any disciplinary action previously imposed by an authorized city official in connection with the conduct of a massage establishment.

H. Procedure For Suspension Or Revocation:

1. On determining that grounds for permit revocation exist, the chief shall furnish written notice of the proposed suspension or revocation to the permittee. Such notice shall set forth the time and place of a hearing, and the ground(s) upon which the proposed suspension or revocation is based. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be personally delivered to the permittee, at least ten (10) days prior to the hearing date.

2. Hearings shall be conducted in accordance with procedures established by the chief. All parties involved shall have a right to: a) offer testimonial, documentary and tangible evidence bearing on the issues; b) be represented by counsel; and c) confront and cross examine witnesses. Hearings are not required to be conducted according to technical rules relating to evidence and witnesses. Rules of privilege shall be recognized, and irrelevant and/or unduly repetitious evidence shall be excluded. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness.

3. After holding the hearing in accordance with this section, upon determining that there are sufficient grounds for disciplinary action, the chief shall impose one of the following penalties:

a. A written warning;

b. Suspension of the permit for a specified period not to exceed six (6) months;

c. Revocation of the permit.

The chief may, in conjunction with the issuance of a warning or the suspension of a permit, order the permittee to take appropriate corrective action. (Ord. 0-15-1304, 1-13-2016)

A. The holder of a massage establishment permit shall maintain:

1. A current, written register of all certified massage therapists and certified massage practitioners providing massage at the establishment, including independent contractors, and each such person's state certificate number, home address, date of hiring, and whether the therapist or practitioner will be performing outcall massages. An amended copy of the written register shall be provided to the chief within five (5) days of the date of hiring, and upon termination of services, with respect to each massage therapist and practitioner at the establishment. Each register submittal shall be accompanied by a statement, signed by the owner, stating under penalty of perjury under the laws of the state of California that all of the information in the written register is true and correct.

2. A daily, written register, approved in form by the chief, that includes the name of each client, the assigned room (or location of outcall massage service), the massage therapist or practitioner who treated the client, a description of service(s) performed, the price of the services, including any gratuity or tip, and the date and time of the appointment. The daily register shall be completed by the close of business every day, and shall be available for inspection by any city representative at all times during regular business hours. The daily register shall be considered confidential, not for public review, and may be inspected by the city only as part of a criminal investigation or to determine compliance with this article. Each daily register shall be retained for at least one year.

B. A massage therapist or practitioner registered pursuant to section 11.11.03 of this article, is jointly responsible with the massage establishment permit holder for compliance with subsection A2 of this section. (Ord. 0-15-1304, 1-13-2016)

Each operator of a massage establishment and each registered massage therapist or practitioner shall conduct the massage establishment business in a safe and sanitary manner, and shall:

A. Comply with all applicable building, fire, safety, health, electrical, plumbing, mechanical, heating and ventilating, and sanitation codes and other laws applicable to the premises;

B. Provide for the regular removal of garbage and refuse, and the safe storage or removal of flammable materials;

C. Maintain all equipment used to perform massage services in a safe and sanitary condition, including the regular application of cleansers and bacterial cleaning agents;

D. Launder all materials furnished for the personal use of the client, such as towels and linens, before each use;

E. Maintain all bathroom and plumbing fixtures in a sanitary condition, provide hot and cold running water, and comply with sanitation requirements of the county health department;

F. Provide a washbasin for therapists and employees, located within or as close as practicable to the area devoted to the massage therapy services. Each washbasin shall be equipped with hot and cold running water, soap in a dispenser and sanitary towels. In the case of a massage establishment located in a home, existence of a bathroom meeting this requirement is sufficient;

G. Provide either a separate room or dressing and locker facilities for each client. However, dressing and undressing may occur in the same room as massage therapy if the client is alone in the room with the door(s) closed and opaque coverings are present on any windows while undressing or dressing. The massage therapist or other clients may not be present in the same room when the client is undressing;

H. In each room or cubicle where massage is administered, have lighting whenever the area is occupied equivalent to a minimum of an incandescent twenty five (25) watt clear glass light bulb;

I. For a massage establishment in which the therapist or practitioner is an employee, all massage services shall be paid for in the reception area, and all tips, if any, shall be paid in the reception area. For a massage establishment at which a therapist or practitioner is an independent contractor, all massage services and all tips, if any, may be paid in the same room where the massage occurred, provided the door to the room is fully open. A massage establishment which is located in a home is exempt from this subsection;

J. Comply with the portions of the massage therapy act 1 relating to the requirements that a certificate holder display his or her original certificate wherever he or she provides massage for compensation; and to have his or her identification card in his or her possession while providing massage services for compensation;

K. Comply with the portions of the massage therapy act 2 relating to sexual acts, including not allowing certificate holders to engage in any form of sexual activity on the premises of a massage establishment where massage is provided for compensation, excluding a residence; to engage in sexual activity while providing massage services for compensation; to provide massage of the genitals or anal region; or to provide massage of female breasts without the written consent of the person receiving the massage and a referral from a licensed California healthcare provider;

L. Comply with the portions of the massage therapy act 3 relating to advertising, including requiring certificate holders to include the name under which he or she is certified and his or her certificate number in any and all advertising of massage for compensation; to not engage in sexually suggestive advertising related to massage services; to not hold him or her self out as a certified massage therapist or practitioner, or use terms such as "licensed" or "certified", that implies that an uncertified person is certified as a massage therapist or practitioner; to not falsely state or advertise or put out any sign or card, or to falsely represent to the public, that any individual is licensed, certified, or registered as a massage therapist or practitioner if that individual is not so certified;

M. Comply with the portions of the massage therapy act 1 related to dressing requirements, including dressing while engaged in the practice of massage for compensation, or while visible to clients in a massage establishment, in attire that is not transparent, see through, or substantially exposes the certificate holder's undergarments; swim attire, if not providing a water based massage modality approved by CAMTC; in a manner that exposes the certificate holder's breasts, buttocks, or genitals; in a manner that constitutes a violation of section 314 of the Penal Code; or a manner that has been deemed by CAMTC to constitute unprofessional attire; and

N. Not serve or permit the consumption of alcoholic beverages unless the massage establishment has a current and valid ABC license and all required city approvals, nor permit the consumption of any drugs, except pursuant to a valid prescription. (Ord. 0-15-1304, 1-13-2016)

The chief may inspect the premises at the time of permitting a massage establishment, and may make periodic, reasonable inspections of the establishment during normal business hours to assure compliance with CAMTC requirements, this article and applicable fire, health and safety requirements. If any fire, health or safety violations are found, the chief shall notify the holder of the massage establishment permit in writing. The chief may give the establishment ten (10) days to correct the violation(s), or, if the violation(s) presents a danger to public health or safety, close the establishment until the violation(s) is corrected. (Ord. 0-15-1304, 1-13-2016)

No massage establishment and no registered massage therapist or practitioner may provide massage service between the hours of nine o'clock (9:00) P.M. and seven o'clock (7:00) A.M., unless the massage establishment permit is endorsed to allow different hours, in which case, it shall be a violation of this article for any massage therapist or practitioner to provide massage during such different hours. Clients and visitors shall be excluded from a massage establishment during the foregoing hours. (Ord. 0-15-1304, 1-13-2016)

The chief shall designate a person in the police department to coordinate with CAMTC, including maintaining a list of certified therapists and practitioners practicing in the city, maintaining a list of massage establishments operating in the city, receiving notices and information from CAMTC, and notifying CAMTC of any arrest or conviction for violation of Penal Code section 647 or other act punishable as a sexually related crime 1 . (Ord. 0-15-1304, 1-13-2016)

Any place where lewdness, assignation or prostitution occurs is a public nuisance which may be abated and permanently enjoined, and for which the city may recover damages from the property owner, as well as from the person conducting or maintaining the nuisance 2 . (Ord. 0-15-1304, 1-13-2016)