Scotts Valley Municipal Code Ch. 5.10 Massage Establishments

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Editor's note— Ord. No. 176.4, § 1, adopted Nov. 7, 2018, repealed the former Ch. 5.10, §§ 5.10.010—5.10.140, and enacted a new Ch. 5.10 as set out herein. The former Ch. 5.10 pertained to similar subject matter and derived from Ord. No. 176.1, § 1, adopted June 21, 2006.

A. In enacting this chapter, the city council recognizes that commercial massage therapy is a professional pursuit which can offer the public valuable health and therapeutic services. The city council further recognizes that, unless properly regulated, the practice of massage therapy and the operation of massage businesses may be associated with unlawful activity and pose a threat to the quality of life in the local community. Accordingly, it is the purpose and intent of this chapter to protect the public health, safety, and welfare by providing for the orderly regulation of businesses providing massage therapy services, discouraging prostitution and related illegal activities carried on under the guise of massage therapy, and establishing certain sanitation, health, and operational standards for massage businesses.

B. It is the city council's further purpose and intent to rely upon the uniform statewide regulations applicable to massage practitioners and establishments that were enacted by the state legislature in 2008 as Business and Professions Code Section 4600 et seq. by Senate Bill 731, and amended in 2011 by Assembly Bill 619 and in 2014 by Assembly Bill 1147 and in 2017 by Assembly Bill 2194, to restrict the commercial practice of massage in the city to those persons duly certified to practice by the California Massage Therapy Council and to provide for the registration and regulation of massage businesses for health and safety purposes to the extent allowed by law.

(Ord. No. 176.4, § 1, 11-7-2018)

For the purposes of this chapter, certain words and phrases used herein are defined as follows:

A. As used in this chapter "massage" or "massaging" shall mean the application of a system of structured touch, pressure, movement, and holding to the soft tissues of the human body with the purpose of positively affecting the health and well-being of the client. The practice includes the external application of water, heat, cold, lubricants, salt scrubs, or other topical preparations, and the use of devices that mimic or enhance the actions of the hands. Massage does not include the prescription of legend drugs or controlled substances, the diagnosis of illness or disease, or any treatment for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required. "Massage" does not include touching that meets either of the following criteria: (A) It is done as part of movement education, energy balancing, or any other technique, profession, or modality in which any soft tissue manipulation is incidental to, and not the central aim of, the practice. (B) It is done while engaging in the practice of another somatic technique, profession, or modality with established standards and ethics in which a practitioner is qualified, provided that such services are not designated or implied to be massage or massage therapy.

B. "Massage establishment" shall mean any business that offers massage therapy in exchange for compensation, whether at a fixed place of business or at a location designated by the customer or client through outcall massage services. Any business that offers any combination of massage therapy and bath facilities - including, but not limited to, showers, baths, wet and dry heat rooms, pools and hot tubs - shall be deemed a massage business under this chapter. The term "massage business" includes a certified massage practitioner who is the sole owner, operator and employee of a massage business operating as a sole proprietorship.

C. "Out call massage service" shall mean any business where a function of such business is to engage in or carry on massage, not at a fixed location but at a location designated by the customer, massage therapist or other person.

D. "Massage practitioner" means any person who administers massage to another person for any form of consideration.

E. "Person" shall mean any individual, co-partnership, firm, association, joint stock company, corporation, or combination of individuals of whatever form or character.

G. "Employee" shall mean any and all persons, other than the massage therapist, employed by the massage establishment who may render any service to the permittee, and who receives compensation from the establishment and who has no physical contact with customers and clients. The term "employee" shall include independent contractors who are regularly employed by the establishment and who work at the massage establishment.

H. "Recognized school" shall mean any school or institution of learning which teaches the theory, ethics, practice, profession, and work of massage which furnishes the student with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which has been approved pursuant to the provisions of the California Education Code, or an existing school or institution of learning outside the State of California.

Schools offering a correspondence course not requiring attendance shall not be deemed a recognized school. The city shall have the right to confirm that the applicant has actually attended class in a recognized school.

I. "Permittee" shall mean the operator of a massage establishment and out call massage service.

J. "CAMTC" shall mean the California Massage Therapy Council, which was created by the California Legislature through the enactment of Senate Bill 731 and re-authorized by Assembly Bill 1147 and again in 2016 by Assembly Bill 2194.

K. "Massage establishment permit" or "permit" shall mean the permit required to operate a massage establishment.

L. "Massage practitioner certificate" or "certificate" shall mean the certificate provided to a massage practitioner after verification from the police department of a valid CAMTC certification.

(Ord. No. 176.4, § 1, 11-7-2018)

A. Massage Business Establishment Permit: It shall be unlawful for any business to provide massage for compensation within the City of Scotts Valley unless all individuals employed by the massage business to perform massage, whether as employee, independent contractor, or sole proprietorship, are CAMTC certified massage practitioners and said business has obtained a valid massage establishment permit as provided in this chapter.

B. Massage Practitioner Certificate: It shall be unlawful for any individual to practice massage therapy for compensation as a sole proprietorship, independent contractor or employee of a massage business or in any other capacity within the City of Scotts Valley unless that individual has received a massage practitioner certificate from the chief of police and is a CAMTC certified massage practitioner or exempt therapist. However, all massage practitioners operating within the City of Scotts Valley who are non-CAMTC certified but have valid massage permits issued by the chief of police on the effective date of this chapter shall have until June 30, 2021 to obtain a CAMTC certification and to apply for and obtain a massage practitioner certificate under the terms of this chapter. Any such non-CAMTC certified massage therapists shall renew their massage permit issued by the chief of police by July 1, 2019 and July 1, 2020.

(Ord. No. 176.4, § 1, 11-7-2018)

The provisions of this chapter shall not apply to the following classes of persons while engaged in the performance of the duties of their respective professions:

A. Persons licensed to practice any healing art pursuant to Division 2 of the Business and Profession Code or the Chiropractic Act, including, but not limited to, physicians, surgeons, chiropractors, osteopaths, acupuncturists, or physical therapists who are duly licensed to practice their respective professions in the State of California and are acting within the scope of that license;

B. Nurses registered under the laws of the State of California acting within the scope of that license;

C. Persons licensed or certificated pursuant to Division 3, Chapter 10 of the Business and Professions Code, including, but not limited to, cosmetologists, barbers and estheticians who are duly licensed under the laws of the State of California and are acting within the scope of that license;

D. Hospitals, nursing homes, sanitariums or other health care facilities duly licensed by the State of California acting within the scope of that license;

E. Accredited high schools, junior colleges, and colleges or universities where coaches and trainers are acting within the scope of their employment;

F. Trainers of amateur, semi-professional or professional athletes or athletic teams acting within the scope of their employment;

(Ord. No. 176.4, § 1, 11-7-2018)

A. Massage Establishment Permit: Every applicant for a permit to maintain, operate, or conduct a massage establishment or out call massage service shall obtain a business license from the city finance director. After obtaining a business license from the city finance director, the applicant shall file a massage establishment permit application with the chief of police upon a form provided by the city. The application for a massage establishment permit shall include all of the following:

1. Legal name of the massage business.

2. Address and telephone number of the massage business.

3. Legal names of all owners of the massage business.

4. A list of all of the massage business' employees and independent contractors who are performing massage and their CAMTC certification information.

5. Residence address and telephone number of all owners of the massage business.

6. Business address and telephone number of all owners of the massage business.

7. The form of business under which the massage business will be operating (i.e., corporation, general or limited partnership, limited liability company, or other form).

8. Each owner or operator of the massage business who is not a CAMTC certified massage practitioner shall submit an application for a background check, including the following: the individual's business, occupation, and employment history for the five years preceding the date of the application; the inclusive dates of such employment history; the name and address of any massage business or similar business owned or operated by the individual whether inside or outside the County of Santa Cruz and its incorporated cities; proof that the applicant(s) has submitted her/his fingerprints to the Department of Justice via LiveScan.

9. For all owners, a valid and current driver's license and/or identification issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government.

10. For all owners, a signed statement that all of the information contained in the application is true and correct; that all owners shall be responsible for the conduct of the business' employees or independent contractors providing massage services; and acknowledging that failure to comply with the California Business and Professions Code Section 4600 et seq., and local, state, or federal law, or the provisions of this chapter may result in revocation of the business' city massage establishment registration certificate.

B. Massage Practitioner Certificate: Massage practitioner certificate applications shall be submitted using forms provided by the police department and shall be accompanied by all of the following:

1. The applicant's full name, all other names the applicant uses or has used, the applicant's residential address, and residence telephone number;

2. The name and address of the massage establishment where the applicant is to be employed and the name of the massage establishment owner;

3. The names and addresses of any and all previous establishments where the applicant has been employed as a massage professional for the past two years;

4. CAMTC certification document;

5. A statement signed by the owner or operator of a massage establishment indicating an intent to employ the applicant as a massage professional (unless the applicant is the massage establishment owner or operator).

C. Fees: Any application for a city massage establishment permit, or renewal thereof, shall be accompanied by a nonrefundable fee in the amount established by resolution of the city council. The fee shall be used to defray the costs of the administration and enforcement of this chapter. The provisions of this section shall not prevent the city from establishing additional fees for safety inspections as may be conducted from time to time by the chief of police, and for the background checks, fingerprinting, and subsequent arrest notification for owners of a massage business who are not CAMTC certified and who are subject to such background checks pursuant to this chapter. There shall be no fee for the massage practitioner certificate unless established by resolution of the city council.

(Ord. No. 176.4, § 1, 11-7-2018)

All permits and certificates shall be issued on a fiscal year basis from the first day of July to the 30th day of the succeeding June, inclusive.

(Ord. No. 176.4, § 1, 11-7-2018)

A. Issuance: Upon provision by the massage business owner of the foregoing acceptable documentation to obtain a massage establishment permit, or 2) the massage practitioner of the foregoing acceptable documentation to obtain a massage practitioner certificate, the chief of police shall issue the appropriate permit or certificate, which shall be valid until the end of the current fiscal year. No reapplication for massage establishment permits will be accepted within one year after an application or renewal is denied or a permit is revoked. Standards to deny, city massage establishment permits shall not be issued to a massage business seeking to operate at a particular location if:

1. Another massage business is or was operating at that particular location and that massage business is currently serving a suspension or revocation pursuant to Section 5.10.110, during the pendency of the suspension or one year following revocation;

2. Another massage business is or was operating at that particular location and that massage business has received a notice of suspension, revocation, or fine issued pursuant to Sections 5.10.100 and 5.10.110, during the ten-day period following receipt of the notice or while any appeal of a suspension, revocation or fine is pending;

3. Another massage business is or was operating at that particular location and that massage business has outstanding fines issued pursuant to Section 5.10.100 that have not been paid;

4. A massage business owner has previously failed to comply with the California Business and Professions Code Section 4600 et seq., and local, state, or federal law, or the provisions of this chapter and is seeking to open a massage business of a different name or at a different location within the City of Scotts Valley.

B. Amendment: A massage business shall apply to the city to amend its city massage establishment permit within thirty days after any change in the registration information, including, but not limited to, the hiring or termination of certified massage practitioners, the change of the business' address, or changes in the owner's addresses and/or telephone numbers.

C. Renewal: Massage establishment permits and massage practitioner certificates shall be renewed annually on or before July 1st of each fiscal year. The permit and/or certificate will be valid for the fiscal year unless suspended or revoked. If an application of renewal has not been received by July 1st of each fiscal year, the permit or certificate shall be deemed suspended until such time as the renewal application has been received and approved. If a permit is suspended, neither the massage establishment nor the massage practitioner may perform massage within the city. If a renewal application and all required information for the renewal is not received within sixty days after expiration, the permit or certificate shall be deemed expired and no privilege to provide massage shall exist.

Massage establishment permit renewal applications shall only require (1) filling out a massage establishment permit application, (2) either (a) the applicant resubmitting her/his fingerprints to the Department of Justice via LiveScan or (b) by the applicant signing a waiver form with the city authorizing the Department of Justice to utilize the subsequent arrest notification process, (3) submitting a list of all of the massage business' employees and independent contractors who are performing massage and their CAMTC certification information.

Massage practitioner certificate renewal applications shall only require (1) filling out the massage practitioner certificate registration application, and (2) providing a current CAMTC certification document.

D. Transfer: A city massage establishment permit shall not be transferred except with the prior written approval of the chief of police. A written request for such transfer shall contain the same information for the new ownership as is required for applications for a massage establishment permit. In the event of denial, notification of the denial and reasons therefor shall be provided in writing and shall be provided to the applicant by personal delivery or by registered or certified mail. A city massage establishment permit may not be transferred during any period of suspension or one year following revocation pursuant to Section 5.10.110, during the ten-day period following a massage business's receipt of a notice of suspension, revocation or fine issued pursuant to Sections 5.10.100 or while any appeal of a suspension, revocation or fine is pending. Further, a city massage establishment permit may not be transferred until all outstanding fines issued pursuant to Section 5.10.100 have been paid.

(Ord. No. 176.4, § 1, 11-7-2018)

A. It is unlawful for any owner, manager, operator, responsible managing officer/employee, or permittee to employ or permit a person to act as a massage practitioner who is not in possession of a valid, unrevoked massage practitioner certificate issued pursuant to this chapter.

B. It is unlawful for any person to engage in the business of massage or act as a massage practitioner and provide any type of massage service without having a valid massage practitioner certificate issued by the chief of police for the purposes of providing massages.

C. It shall be unlawful for any owner, proprietor, manager, or other person in charge of any massage establishment or out call massage service to employ any person who is under eighteen years of age.

D. Every person to whom or for whom a permit shall have been granted shall display such permit and a valid business license in a conspicuous place within the massage establishment so that the permit may be readily seen by persons entering the premises. Persons engaged in an out call massage service shall have their permit available for inspection at all times while providing out call massage services.

(Ord. No. 176.4, § 1, 11-7-2018)

The provisions of this chapter shall be applicable to all persons and businesses whether the business was established before or after the effective date of the ordinance codified in this chapter, except that massage establishments or outcall services legally in business prior to the effective date shall have ninety days to file for a massage permit and to comply with the provisions of this chapter. Massage practitioners who have valid massage permits from the city shall have until June 30, 2021 to obtain a CAMTC certification and to apply for and obtain a massage practitioner certificate under the terms of this chapter. Any such non-CAMTC certified massage therapists shall renew their massage permit issued by the chief of police by July 1, 2019 and July 1, 2020.

(Ord. No. 176.4, § 1, 11-7-2018)

The chief of police shall revoke or suspend any permit issued pursuant to the provisions of this chapter if s/he finds:

A. That the permittee, or his employees, agents, or any person connected or associated with the permittee as a partner, director, officer, stockholder, or manager, has been convicted in a court of competent jurisdiction by final judgment within the last ten years of an offense involving lewd conduct.

B. That the permittee has violated any provision of this chapter or is in violation of any general or special condition of the permit;

C. That the permittee has had a similar type permit previously revoked for good cause and has not shown a material change in circumstances since the date of such revocation.

D. An owner or sole proprietor fails to register under the provisions of California Penal Code Section 290 (sex offender registration); is convicted of California Penal Code Sections 266i (pandering), 315 (keeping or residing in a house of ill fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit a place for prostitution), 647(b) (engaging in or soliciting prostitution), 653.22 (loitering with intent to commit prostitution), 653.23 (supervision of prostitute); 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 California Penal Code Sections 11225 through 11235 (red light abatement); is convicted of a felony offense involving the sale of a controlled substance; is convicted of any crime involving dishonesty, fraud, deceit, violence, or moral turpitude; or is convicted in any other state of an offense which, if committed in this state, would have been punishable as one or more referenced offenses in this subsection.

E. Violations of any of the following occurred on the premises of a massage business or were committed by a massage practitioner: California Business and Professions Code Section 4600 et seq.; any local, state, or federal law; or the provisions of this chapter.

Prior

to revoking or suspending the permit, the chief of police shall give not less than five days written notice to the permittee to show cause, at a time and place set by the notice, why the permit should not be revoked. At the hearing, the permittee shall appear and submit evidence why the permit should not be revoked. Within ten days after the hearing, the chief of police shall make a written determination as to whether the permit should be revoked, and the decision shall be mailed to the permittee. If a permit has been revoked, the permittee shall not reapply for one year.

(Ord. No. 176.4, § 1, 11-7-2018)

The permittee may appeal any of the matters set forth in Section 5.10.110 in writing to the city council within ten days of receipt of the chief of police's written decision. The city council shall immediately schedule the matter for hearing, and cause written notice of the hearing to be given to the applicant or permittee not less than five days prior to the hearing. At the hearing, the permittee shall appear and offer evidence why the decision of the chief of police should be overturned. Within ten days after the hearing, the city council shall make a written determination, and the decision shall be mailed to the permittee. The decision of the city council shall be final.

(Ord. No. 176.4, § 1, 11-7-2018)

A. A massage business shall notify the chief of police of any changes described in Section 5.10.050 pursuant to the timelines specified therein.

B. A registrant shall report to the chief of police any of the following within ninety-six hours of the occurrence:

1. Arrests of any employees or owners of the registrant's massage business for an offense other than a misdemeanor traffic offense;

2. Resignations, terminations, or transfers of practitioners employed by the registrant's massage business;

3. Any event involving the registrant's massage business or the massage practitioners employed therein that constitutes a violation of this chapter or state or federal law.

C. This provision requires reporting to the chief of police even if the massage business believes that the chief of police has or will receive the information from another source.

(Ord. No. 176.4, § 1, 11-7-2018)

The provisions of this chapter shall be in addition to all other regulations, laws, requirements, and fees set forth in this Code.

(Ord. No. 176.4, § 1, 11-7-2018)

Any massage business operated, conducted or maintained contrary to the provisions of this chapter shall constitute an unlawful business practice pursuant to Business and Professions Code Section 17200 et seq., and the city attorney or district attorney may, in the exercise of discretion, in addition to or in lieu of taking any other action permitted by this chapter, commence an action or actions, proceeding or proceedings in the superior court of Santa Cruz County, seeking an injunction prohibiting the unlawful business practice and/or any other remedy available at law, including but not limited to fines, attorneys' fees and costs. All remedies provided for in this chapter are cumulative.

(Ord. No. 176.4, § 1, 11-7-2018)

A. Violations. Upon a finding by the police chief that a business or person has violated any provision of this chapter, the police chief may issue an administrative fine of up to five hundred dollars.

B. Separate Violations. Each violation of any provision of this chapter shall constitute a separate violation. Each client to whom massage is provided or offered in violation of this chapter shall also constitute a separate violation. Each day upon which a massage business remains open for business in violation of this chapter shall also constitute a separate violation.

C. Fine Procedures. Notice of the fine shall be served in accordance with Chapter 4.03 of the Scotts Valley Municipal Code.

(Ord. No. 176.4, § 1, 11-7-2018)

It shall be unlawful and a public nuisance for a massage business to be operated, conducted, or maintained contrary to the provisions of this chapter or for a person to conduct massage in violation of the terms of this chapter. The city may exercise its discretion, in addition to or in lieu of imposing an administrative fine, to commence proceedings for the abatement, removal, and enjoinment of that business in any manner provided by law.

(Ord. No. 176.4, § 1, 11-7-2018)