Agenda Item No. 8c December 9, 2008

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1 Agenda Item No. 8c December 9, 2008 TO: FROM: SUBJECT: Honorable Mayor and City Council Members Attention: David J. Van Kirk, City Manager Rich Word, Chief of Police Shana Faber, Assistant City Attorney ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VACAVILLE ADDING CHAPTER 9.07 TO THE VACAVILLE MUNICIPAL CODE, RELATING TO MASSAGE THERAPY REGULATIONS DISCUSSION: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VACAVILLE APPROVING FEE SCHEDULE RELATED TO APPLICATIONS FOR MASSAGE THERAPY LICENSES Prior to the passage of Senate Bill 731 ( SB 731 ), there has been no state regulation or oversight of the massage therapy profession. Instead, it has been left up to each city and county to adopt a local ordinance providing for the licensing and regulation of massage therapists and establishments. On September 27, 2008, Governor Schwarzenegger signed into law SB 731. Commencing on September 1, 2009, this bill provides for the certification of massage therapists and practitioners by the Massage Therapy Organization, a non-profit organization that is in the process of being formed. The bill requires applicants for certification to be at least 18 years of age, to meet certain educational and professional criteria, and to undergo a criminal history background check as a prerequisite to certification. The bill also allows the organization to take disciplinary action against the certificate holder if he or she has been arrested for, and charged with, certain sexually related crimes or drug offenses. Finally, SB 731 prohibits a city or county from requiring certificate holders and their employers to obtain a local license to practice massage therapy, although some local regulation is still allowed in the areas of physical facility and building code requirements, public health and safety, attire, and personal hygiene. Although SB 731 is a step in the right direction, a local ordinance regulating massage therapists and establishments is still necessary for several reasons. First, certification under SB 731 is voluntary, not mandatory. Therefore, it is necessary to adopt a local ordinance making certification under SB 731 mandatory to ensure that all persons practicing massage therapy in the City of Vacaville meet certain minimum criteria. Second, the certification provisions of SB 731 do not become operative until September 1, An interim City licensing requirement with similar qualification requirements to SB 731 will help ensure that no unqualified persons are permitted to practice massage therapy prior to SB 731 becoming operative. Additionally, the number of complaints the Police Department receives concerning suspected prostitution at certain local massage establishments has been increasing, and now averages at least one or more complaints per month. Although violators are arrested and cited whenever there is probable cause to do so, an ordinance will provide the City with the ability to commence proceedings to suspend or revoke the establishment owner s business license when an arrest is made and criminal charges filed. The subject ordinance requires that prior to September 1, 2009, any non-exempt person 1 who practices massage therapy for compensation in the City of Vacaville must obtain a massage therapy license from the Vacaville Police Department. Commencing on or after September 1, 2009, all non-exempt persons must obtain state certification, with the exception of persons who have already obtained a city massage therapy license so long as such persons continue to maintain their license in good standing. Other pertinent provisions of the ordinance include: 1 Certain persons and establishments are exempt from the ordinance because they do not practice massage as their primary occupation or they are otherwise regulated by the State of California, such as licensed health professionals, licensed barbers and cosmetologists, etc. 1

2 The applicant must meet minimum professional and educational criteria, similar to the criteria required of state certificate holders. The applicant cannot have been convicted of a specified criminal activity, defined as conviction of any prostitution related crime or of any felony offense involving the sale of a controlled substance, within the last five years where such conviction is of a felony offense and/or multiple misdemeanor offenses, or within the last two years if the conviction is of a single misdemeanor offense. The applicant must provide proof of at least $1,000,000 in professional and general liability insurance coverage, or proof of membership in a professional massage therapy organization that provides such insurance coverage as a benefit of membership. 2 Basic health and safety, attire and personal hygiene, and physical facility and building code requirements must be followed by all massage therapists, practitioners and establishments (applies to both City license holders and state certificate holders). Violators of the ordinance and/or SB 731 may have their massage therapy license and/or business license suspended or revoked (applies to both City license holders and state certificate holders). Additionally, attached is the resolution and fee schedule for the Vacaville Police Department to recoup the costs of processing licensing and renewal of licensing applications. Applicants for the initial license will be charged a $ fee, which is based upon an estimated three hours of staff time to verify the information in the application, and a $80.00 fee to process the applicant s fingerprints with the Department of Justice and FBI. License renewal applicants will be charged a $40.00 fee, which is based upon an estimated one hour of staff time to verify any changes to the applicant s licensing information. The subject ordinance is endorsed by the American Massage Therapy Association, the Vacaville Chamber of Commerce, and several local massage establishments and practitioners. RECOMMENDATION: 1. By title only, to introduce the subject ordinance. 2. By simple motion, to adopt the subject resolution. Attachments: Ordinance Resolution Adopting Fee Schedule Fee Schedule 2 For example, the American Massage Therapy Association offers professional liability coverage to its members in the amount of $2,000,000 per occurrence and $6,000,000 in the aggregate. The cost of the coverage is included in the membership fee, which is $260 for professional members and $104 for student members. 2

3 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VACAVILLE ADDING A NEW CHAPTER 9.07 TO THE VACAVILLE MUNICIPAL CODE RELATING TO MASSAGE THERAPY REGULATIONS THE CITY COUNCIL OF THE CITY OF VACAVILLE DOES ORDAIN AS FOLLOWS: Section 1. FINDINGS. The City Council of the City of Vacaville hereby finds that: A. This chapter is intended to provide for the orderly regulation of persons and establishments engaged in the practice of Massage Therapy, as defined in this chapter, in the interest of the public health, safety and welfare. The City of Vacaville wishes to both recognize the practice of Massage Therapy as a valid professional field and to discourage the use of Massage Therapy as a subterfuge by persons with criminal tendencies to violate subdivision (a) or (b) of Section 647 of the California Penal Code or to commit other unlawful activity. B. A number of services that are in fact operating as fronts for prostitution advertise in the erotic services section of craigslist.com and other adults-only sections of print and electronic advertising media. These advertisements are not intended to attract legitimate massage therapy clients, but rather, are intended to solicit patrons who are interested in paying for sexual services under the auspices of receiving a massage. In at least one of these advertisements by a local massage establishment, a sexually provocative photograph of a girl who appears to be under the age of 18 and whose face has been partially blurred is prominently featured. In addition, many of these illicit massage establishments are owned and or operated by human trafficking organizations. Many of these traffickers charge women tens of thousands of dollars to smuggle them into the country, and then force them to work off their debts in erotic massage parlors. C. This chapter provides certain minimum qualifications and licensing requirements for persons engaged in the practice of Massage Therapy prior to the provisions of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code becoming operative, relating to certification of Massage Therapists and Massage Practitioners by the Massage Therapy Organization ( MTO ). This chapter also requires that on or after the operative date that the Massage Therapy Organization first commences the issuance of MTO Certificates, all persons engaged in the practice of Massage Therapy in the City of Vacaville shall obtain a MTO Certificate, and all Massage Businesses or Establishments that employ such persons shall file copies or provide other evidence to the city of such persons MTO Certificate. D. By the definitions of Massage, Massage Therapy, Bodywork, and Massage Business or Establishment, contained in Section of this chapter, it is the intent of the City Council to prevent evasion of the provisions of this chapter through the device of calling a therapy, business, or establishment by a new or different name. E. This chapter is enacted pursuant to the provisions of Sections of the California Government Code, Sections and of the California Business & Professions Code, and Article XI, Section 7 of the California Constitution. F. The provisions of this chapter are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any state or local laws or regulations that are uniformly applied to other professional or personal services businesses, including but not limited to, all zoning regulations, business license provisions, building code, and fire, electrical, plumbing, and health and safety code laws and regulations applicable to professional or personal services businesses. 1

4 G. By adopting this chapter, the City Council does not intend to regulate in any area preempted by state or local law, including but not limited to, Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code. Section 2. Chapter 9.07 of the Vacaville Municipal Code, entitled Massage Therapy Regulations, is adopted to read as follows: CHAPTER 9.07 MASSAGE THERAPY REGULATIONS Massage Therapy License Required; Deadline for Compliance Definitions Exemptions from Chapter Licensing Requirements and Minimum Qualifications Investigation and Action on Application Denial, Revocation, Restriction or Suspension of Massage Therapy License Administrative Appeal and Hearing Process Judicial Review Registration and Notification Requirements Hours of Operation Prohibited Advertising Practices Minors Physical Facility and Building Code Requirements Health and Safety Requirements Attire and Physical Hygiene Requirements Inspection by Government Officials Owner and Operator Responsibility; Denial, Revocation, Restriction or Suspension of Business License Remedies Cumulative; Each Day A Separate Offense Public Nuisance Criminal Penalties Civil Injunction Administrative Fines and Costs MASSAGE THERAPY LICENSE REQUIRED; DEADLINE FOR COMPLIANCE. Except where a specific exemption is applicable pursuant to Section of this chapter, it is a violation of this chapter for: A. Any person to engage in the practice of Massage Therapy prior to the operative date that the Massage Therapy Organization first commences the issuance of MTO Certificates, and any Massage Business or Establishment to employ or retain such a person, unless such person first obtains and continues to maintain in full force and effect a valid Massage Therapy License issued by the Police Chief pursuant to this chapter. B. Any person to engage in the practice of Massage Therapy on or after the operative date that the Massage Therapy Organization first commences the issuance of MTO Certificates, and any Massage Business or Establishment to employ or retain such a person, unless such person first obtains and continues to maintain in full force and effect a valid MTO Certificate. C. Notwithstanding Paragraph B of this section, any person who has in full force and effect a valid Massage Therapy License as of the operative date that the Massage Therapy Organization first commences the issuance of MTO Certificates, shall not be required to obtain a MTO Certificate for so long as such person continues to maintain such license in full force and effect pursuant to Section C of this chapter. D. All persons subject to this chapter shall have thirty (30) calendar days from the effective date of this chapter to apply for a Massage Therapy License, and to comply with the operational requirements of this chapter. 2

5 DEFINITIONS. A. Applicant. The term Applicant shall mean a person who is required to file an application for a Massage Therapy License. B. Compensation. The term Compensation shall mean the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value. C. Employed or Retained By. The term Employed or Retained By shall include: 1. Any person who is a directly paid employee of a Massage Business or Establishment; 2. Any person whose association with a Massage Business or Establishment is that of an independent contractor who receives compensation for Massage Therapy provided to patrons of the business or establishment; and 3. Any person who receives a referral of patrons from a Massage Business or Establishment and who at any time before or after the referral arranges in any way for compensation to flow to the Massage Business or Establishment or any of its Owners (regardless of whether the parties involved acknowledge that compensation is flowing in exchange for the referral, or such parties record such compensation in their financial records). D. License. The term License shall mean the authorization issued by the city allowing the practice of Massage Therapy. Also known as a Massage Therapy License. E. Licensee. The term Licensee shall mean a person to whom a Massage Therapy License has been issued. F. Massage, Massage Therapy, Bodywork. The terms Massage, Massage Therapy, and Bodywork, are used in this chapter interchangeably and shall mean the application of various techniques to the muscular structure and soft tissues of the human body, including but not limited to, any method of pressure or friction against, or stroking, kneading, rubbing, tapping, compression, pounding, vibrating, rocking or stimulating of the external surfaces of the body with hands or with any object or appliance. The terms Massage, Massage Therapy, and Bodywork, specifically exclude the diagnosis, prescription, intentional manipulation or adjustments of the skeletal structure, or any other service, procedure or therapy which requires a license to practice (e.g., chiropractic, osteopathy, orthopedics, physical therapy, podiatry, or medicine), hypnosis, naturopathic, colonic irrigation, acupuncture, vacuum cupping, nutritional or dietary counseling, detoxification programs, yoga, exercise, spiritual healing, or procedures which penetrate body cavities, either manually or with any other method of intrusion. G. Massage Business or Establishment. The term Massage Business or Establishment shall mean any business or establishment which offers Massage Therapy in exchange for compensation, whether at a fixed place of business or at a location designated by the patron. Any business or establishment which 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 or Establishment under this chapter. H. Massage Practitioner. The term Massage Practitioner shall mean any person to whom a MTO Certificate has been issued pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code, or subdivision (a) or (c) of Section 4604 of the California Business and Professions Code, and who 3

6 is engaged in the practice of Massage Therapy for compensation. As used in this chapter, the terms Bodywork Practitioner, or Massage and Bodywork Practitioner, shall have the same meaning as Massage Practitioner. I. Massage Therapist. The term Massage Therapist shall mean any person to whom a MTO Certificate has been issued pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code and who is engaged in the practice of Massage Therapy for compensation. As used in this chapter, the terms Bodyworker, Bodywork Therapist, or Massage and Bodywork Therapist, shall have the same meaning as Massage Therapist. J. MTO Certificate. The term MTO Certificate shall mean the certificate issued by the Massage Therapy Organization to Massage Therapists pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code, and to Massage Practitioners pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code or subdivision (a) or (c) of Section 4604 of the California Business and Professions Code. K. Operator. The term Operator shall mean any person who supervises, manages, directs, organizes, controls or in any other way is responsible for or in charge of the overall operation, conduct or activities of a Massage Business or Establishment. L. Owner. The term Owner shall mean any of the following persons: 1. The sole proprietor of a Massage Business or Establishment. As used in this chapter, the term sole proprietor shall mean a Massage Business or Establishment where the Owner is the only person employed by that business or establishment to provide Massage Therapy; 2. Any general partner of a partnership that owns and operates a Massage Business or Establishment; or 3. Any person who has a twenty percent (20%) or greater ownership interest in a corporation that owns and operates a Massage Business or Establishment. M. Person. The term Person shall mean any individual, proprietorship, partnership, corporation, firm, association, joint stock company, or combination of the above in whatever form or character. N. Police Chief. The term Police Chief shall mean the Police Chief of the City of Vacaville or his or her authorized representative(s). O. Recognized School of Massage. The term Recognized School of Massage shall mean a facility that teaches the theory, ethics, practice, profession and work of Massage Therapy and that is approved by any of the following: 1. The Bureau for Private Postsecondary and Vocational Education pursuant to former Section of the California Education Code prior to July 1, 2007; 2. The Department of Consumer Affairs; 3. An institution accredited by the Accrediting Commission for Senior Colleges and Universities or the Accrediting Commission for Community and Junior Colleges of the Western Association of Schools and Colleges and that is one of the following: (a) a public institution; (b) an institution incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the California Corporations Code, and that is not managed by any entity for profit; (c) a for-profit institution; (d) An institution that does not meet all of the criteria in subdivision (b) herein, 4

7 that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the California Corporations Code, that has been in continuous operation since April 15, 1997, and that is not managed by any entity for profit; 4. A college or university of the state higher education system, as defined in Section of the California Education Code; or 5. A school of equal or greater training that is approved by the corresponding agency in another state or territory of the United States or accredited by an agency recognized by the United States Department of Education. The term Recognized School of Massage shall not include a school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class. P. Sexually Related Crime. The term Sexually Related Crime shall mean a violation of Section 266i, 315, 316, 318, or subdivision (b) of Section 647 of the Penal Code, or any similar offenses under the criminal or penal code of this state or any other states or countries. Q. Specified Criminal Activity. The term Specified Criminal Activity shall mean: 1. Conviction of a Sexually Related Crime, or conviction of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or of the Health and Safety Code, or any similar offenses under the criminal or penal code of this state or any other states or countries, for which: a. Less than two (2) years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; or b. Less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or c. Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement from the last conviction, whichever is the later date, if the convictions are of two (2) or more misdemeanor offenses occurring within any twentyfour (24) month period. 2. The fact that a conviction is being appealed shall have no effect on the determination of whether the Applicant or Licensee has been convicted of a Specified Criminal Activity under this chapter EXEMPTIONS FROM CHAPTER. This chapter shall not apply to: A. Persons holding a valid certificate to practice the healing arts under the laws of the State of California and their employees, including, but not limited to, holders of medical degrees such as physicians, surgeons, chiropractors, osteopaths, naturopaths, podiatrists, acupuncturists, physical therapists, registered nurses and licensed vocational nurses; B. State-licensed hospitals, nursing homes, sanitariums, physiotherapy establishments, or other state-licensed physical or mental health facilities and their employees; 5

8 C. Recognized Schools of Massage described under subparagraph (3) or (4) of Paragraph P of Section of this chapter and their students in training, provided such students provide Massage Therapy only under the direct personal supervision of an instructor; D. Barbers and cosmetologists who are licensed under the laws of the State of California while providing Massage Therapy within the scope of their licenses, provided that such Massage Therapy is limited solely to the neck, face, scalp, feet and lower limbs up to the knees, and hands and arms, of their patrons; E. Persons who provide Massage Therapy to amateur, semi-professional or professional athletes or athletic teams, facilities or events, so long as such persons do not practice Massage Therapy as their primary occupation within city limits; F. Persons who hold a valid MTO Certificate and who are practicing consistent with the qualifications established by such certificate; and G. Massage Businesses or Establishments as defined under paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, except that such businesses or establishments shall not be exempt from this chapter to the extent Section 4612 expressly permits the regulation of such businesses or establishments by local ordinance LICENSING REQUIREMENTS AND MINIMUM QUALIFICATIONS. A. Every non-exempt person who proposes to engage in the practice of Massage Therapy in the city prior to the operative date that the Massage Therapy Organization first commences the issuance of MTO Certificates, shall file an application for a Massage Therapy License with the Police Chief on a form provided by the city and shall pay a non-refundable application, investigation, and licensing fee set forth in the schedule of fees established from time to time by the City Council. B. All Applicants must provide the Police Chief with evidence that they possess at least one of the following minimum qualifications before a Massage Therapy License may be issued: 1. Graduation from a Recognized School of Massage requiring a minimum of five-hundred (500) hours of supervised, in-class instruction; 2. Completion of a minimum of one-hundred (100) hours of supervised, inclass instruction at a Recognized School of Massage, the Applicant has been engaged in the practice of Massage Therapy for a minimum of three (3) years, and the Applicant has provided at least one-thousand (1,000) hours of Massage Therapy to members of the public for compensation. For purposes of this subparagraph, evidence of practice shall include either of the following: (a) a W-2 form or employer's affidavit containing the dates of the Applicant's employment; or (b) tax returns indicating selfemployment in the field of Massage Therapy or any other title that may demonstrate experience in the field of Massage Therapy; 3. Completion of a minimum of two-hundred fifty (250) hours of supervised, in-class instruction at a Recognized School of Massage, and the Applicant has obtained a passing score on the Massage and Bodywork Licensing Exam administered by the Federation of State Massage Therapy Boards; 4. Certification by the National Certification Board for Therapeutic Massage and Bodywork; or 5. A current and valid registration, certification, or license to practice Massage Therapy from another state or territory of the United States 6

9 whose licensure requirements meet or exceed the minimum qualifications of this chapter. C. The completed application form shall set forth the following information: 1. The Applicant's legal name and any other names or aliases used by the Applicant; 2. Present residence address and telephone number; 3. Age, date, and place of birth; 4. Height, weight, hair and eye color; 5. The name and address of the Massage Business or Establishment where the Applicant is to be employed and the name of the Owner(s) and Operator(s) of the business or establishment; 6. The names and addresses of any Massage Businesses or Establishments where the Applicant was previously employed or retained to provide Massage Therapy; 7. Whether the Applicant has been convicted of a Specified Criminal Activity and, if so, the particular statute section, and the date, place, and jurisdiction of each such conviction; and 8. Whether the Applicant has previously been licensed to practice Massage Therapy in any other jurisdiction, and if so, the licensing history of the Applicant for the five (5) years immediately preceding the date of the filing of the application, including whether the Applicant has had such license denied, revoked, restricted or suspended, or has otherwise been disciplined or sanctioned by the licensing board or agency, the reason(s) therefor, and the Applicant s business activity or occupation subsequent to such action having been taken against the Applicant. A copy of any order of denial, revocation, restriction, suspension, or any other form of discipline or sanction taken against the Applicant, shall be attached to the application. D. The following documentation shall be attached to the application form: 1. Two (2) passport-sized (2 X 2 inches) color photographs of the Applicant clearly showing the Applicant's face, and the Applicant shall also complete the LiveScan fingerprinting process. The face size of the photographs, measured from the bottom of the chin to the top of the head (including hair), should not be less than 1 inch or more than 1 3/8 inches. Any fees for the photographs and fingerprints shall be paid by the Applicant; 2. A copy of the Applicant s driver's license or other state-issued identification card; 3. If the Applicant is a sole practitioner and intends to operate under a name other than that of the Applicant, written proof that the Applicant has registered such fictitious name with the appropriate governmental entity; 4. Original or certified copies of documents to demonstrate the fulfillment of the minimum qualifications described in Paragraph B of this section; and 5. Proof of professional and general liability insurance coverage in the amount of not less than one million dollars ($1,000,000.00) per occurrence, or proof of membership in a professional Massage Therapy organization that provides automatic professional and general liability 7

10 insurance in such amount or greater as a benefit of membership in such organization. E. Every application for a Massage Therapy License under this chapter shall be verified as provided in Section of the California Code of Civil Procedure for the verification of pleadings INVESTIGATION AND ACTION ON APPLICATION. A. Upon receiving a completed application and the non-refundable application, investigation and licensing fee, the Police Chief shall within a reasonable period, not exceeding forty-five (45) days of the filing of the application, investigate the application and either approve the application, with or without specific terms or conditions, or deny the application. B. If the application is approved, the Police Chief shall write or stamp Granted on the application and date and sign such notation. The Police Chief shall attach to the application a Massage Therapy License which shall have appended to it a color photograph of the Licensee, and shall state the Licensee s name, address and the expiration date on the face of the license and any specific terms or conditions. C. The license, if granted shall expire December 31 st of each year and may only be renewed by the Licensee filing with the Police Chief a written request for renewal on a form provided by the city, accompanied by a non-refundable renewal fee set forth in the schedule of fees established from time to time by the City Council and a copy of the license to be renewed. The request for renewal shall be made at least thirty (30) calendar days before December 31 st. D. The license, if granted, shall be made available by the Licensee for review by the police department at all times while the Licensee is providing Massage Therapy for compensation. E. If the application is denied, the Police Chief shall write or stamp Denied on the application and date and sign such notation. The Police Chief shall attach to the application a statement of the reasons for denial. F. The notice to the Applicant or Licensee of the approval or denial of the application shall be mailed, postage prepaid, to the address listed by the Applicant or Licensee on the application, or shall be delivered to the Applicant or Licensee personally. All notices given pursuant to this chapter shall be deemed given upon the date they are deposited in the United States mail or the date upon which personal service is provided DENIAL, REVOCATION, RESTRICTION OR SUSPENSION OF MASSAGE THERAPY LICENSE. A. A Massage Therapy License may be subject to denial, revocation, restriction or suspension by the Police Chief for any of the following conduct on the part of the Applicant or Licensee: 1. Unprofessional conduct, including but not limited to, denial of licensure, revocation, suspension, restriction, or any other disciplinary action taken against an Applicant or Licensee by another state or territory of the United States, by any other government agency, or by a California health care professional licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence of these actions; 2. Procuring a Massage Therapy License by fraud, misrepresentation, or mistake; 8

11 3. Violating or attempting to violate, directly or indirectly, or assisting or abetting in the violation of, or conspiring to violate, any provision of this chapter; 4. Conviction of a Specified Criminal Activity, in which event the record of the conviction shall be conclusive evidence of the crime; 5. Impersonating an Applicant or permitting or allowing any Applicant to use a Licensee s identification or qualifications to obtain a Massage Therapy License; 6. Impersonating a Licensee, or permitting or allowing any unlicensed person to use a Licensee s Massage Therapy License; 7. Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of an Applicant or Licensee under this chapter; or 8. Committing any act punishable as a Sexually Related Crime, or upon a showing that the Licensee has been required to register under the provisions of Section 290 of the Penal Code. B. If the Police Chief receives notice that a Licensee has been arrested and charges have been filed by the appropriate prosecuting agency against the Licensee for any act punishable as a Sexually Related Crime, the Police Chief may suspend the Licensee s Massage Regulatory License on an interim basis in order to protect the health, safety or welfare of the public. The Police Chief shall take all of the following actions in connection with such suspension: 1. The notice of suspension shall be mailed, postage prepaid at the address last filed with the Police Chief, or shall be delivered to the Licensee personally, and shall contain the following: (a) the reason for the interim suspension; (b) the time, date, and place at which the Licensee may appear in advance of the commencement of the interim suspension for the purpose of showing cause to the City Manager or designee as to why the suspension should not be imposed; and (c) the time and date on which the interim suspension shall commence, which shall not be earlier than twenty-four (24) hours following the time and date of service of the notice; and 2. Upon the expiration of the twenty-four (24) hour period prescribed under subparagraph (1) herein, notify any Massage Establishment or Business that is known to employ or retain the Licensee, that the Licensee s Massage Therapy License has been suspended. C. Upon notice to the Police Chief that the charges described in Paragraph B of this section have resulted in a conviction, the suspended Massage Therapy License shall become subject to permanent revocation. The Police Chief shall provide notice to the Licensee within ten (10) calendar days that the Police Chief has evidence of a valid record of conviction and that the Licensee s Massage Therapy License will be permanently revoked unless the Licensee provides evidence within fifteen (15) calendar days that the conviction is either invalid or that the information is otherwise erroneous. Upon the Licensee s failure to provide such evidence within the fifteen (15) calendar day period, the Licensee s Massage Therapy License shall be permanently revoked and the Licensee and any Massage Establishment or Business that received notice pursuant to Subparagraph (2) of Paragraph B of this section, shall be notified of the revocation within ten (10) calendar days. D. Upon notice to the Police Chief that the charges described in Paragraph B of this section have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the Licensee s Massage Therapy License shall be immediately reinstated and the Licensee and any Massage Establishment or Business that 9

12 received notice pursuant to Subparagraph (2) of Paragraph B of this section, shall be notified of the reinstatement within ten (10) calendar days ADMINISTRATIVE APPEAL AND HEARING PROCESS. A. After the denial, revocation, restriction or suspension of a license, the Applicant or Licensee may seek review of such action by filing an appeal in the City Clerk s office within fifteen (15) calendar days of the date the Applicant or Licensee was notified of such denial, revocation, restriction or suspension, accompanied by a non-refundable appeal fee set forth in the schedule of fees established from time to time by the City Council. B. Within seven (7) calendar days of the filing of the appeal, the City Clerk s office shall furnish notice to the Applicant or Licensee, setting forth the time and place of the hearing to be conducted by the City Manager or designee. The notice shall be mailed, postage prepaid, to the address listed by the Applicant or Licensee on the appeal, or shall be delivered to the Applicant or Licensee personally, at least five (5) calendar days prior to the hearing date. At the hearing, all parties shall have a right to offer testimonial, documentary, and tangible evidence on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence upon which reasonable persons are accustomed to rely in the conduct of serious matters may be admitted. Any hearing under this chapter may be continued for a reasonable time for the convenience of a party or witness. C. After conducting a hearing in accordance with this section, the City Manager or designee shall affirm, overrule or modify the action taken. Notice of the City Manager s decision shall be mailed, or shall be delivered to the Applicant or Licensee personally, no later than ten (10) calendar days after the close of the hearing. D. Except for a suspension or revocation imposed under Paragraph B or C of Section of this chapter, or Paragraph E of this section, the suspension or revocation shall become effective fifteen (15) days following the date of service upon the Licensee of the notice of suspension or revocation. If the Licensee files an appeal within the time and manner prescribed under Paragraph A of this section, the license shall remain in effect until the appeal is finally determined. E. Notwithstanding Paragraph D of this section, a Massage Regulatory License may be suspended on an interim basis, if the Police Chief finds that such suspension is necessary in order to protect against a serious and immediate threat to the health, safety or welfare of the public caused by the Licensee s exercise of the license. The Police Chief shall follow the notice and hearing procedures prescribed under Paragraph B and or C of Section of this chapter, in connection with such interim suspension. F. Failure to timely appeal the denial, revocation, restriction or suspension of a license will be considered a failure on the part of the Applicant or Licensee to exhaust his or her administrative remedies, for the purpose of seeking judicial review under Section of this chapter. Notwithstanding the foregoing, the fifteen (15) calendar day appeal period may be extended by the City Manager for good cause shown JUDICIAL REVIEW. If the City Manager affirms the denial, revocation, restriction or suspension of a License, the Applicant or Licensee may seek prompt judicial review of such action pursuant to Code of Civil Procedure Section REGISTRATION AND NOTIFICATION REQUIREMENTS. A. Every non-exempt Massage Business or Establishment, and every Massage Business or Establishment as defined under paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall: 10

13 1. Provide the police department with a copy or other evidence of the Massage Therapy License or MTO Certificate of every person who is employed or retained by the business or establishment to provide Massage Therapy, within thirty (30) calendar days of the commencement of such person s period of employment; 2. Maintain on its premises a copy or other evidence of each such Massage Therapy License or MTO Certificate for review by the police department; and 3. Notify the Police Chief of any intention to rename, change management, or convey the business or establishment to another person. B. Every Licensee shall notify the Police Chief of a change in the Licensee s home address, and the address of the Massage Business or Establishment where the Licensee is regularly employed or retained to provide Massage Therapy, within thirty (30) days of such change HOURS OF OPERATION. No Licensee, and no non-exempt Massage Business or Establishment, or Massage Business or Establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall provide Massage Therapy to the public for compensation between the hours of 10:00 p.m. and 7:00 a.m. of the following day PROHIBITED ADVERTISING PRACTICES. A. It is a violation of this chapter for any person who does not possess a valid MTO Certificate on or after September 1, 2009, and for any Massage Business or Establishment that employs or retains such a person, to: 1. State or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that such person is certified, registered or licensed by a governmental agency as a Massage Therapist or Massage Practitioner; or 2. Hold oneself out or use the title of certified massage therapist, certified massage practitioner, or any other term, such as licensed, registered, or CMT, that implies or suggests that such person is the holder of a MTO Certificate. B. It is a violation of this chapter for any Massage Business or Establishment, Licensee, or any other person providing Massage Therapy to the public for compensation, to advertise through any print or electronic media that is classified as for adults only or similar classification MINORS. It shall be unlawful for any non-exempt Massage Business or Establishment, and for any Massage Business or Establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, to: A. Employ or retain any person who is under the age of eighteen (18) years to provide any Massage Therapy to the public for compensation; or B. Provide Massage Therapy to any person who is under the age of eighteen (18) years, except at the special instance and request of a parent or other person in lawful custody of the minor PHYSICAL FACILITY AND BUILDING CODE REQUIREMENTS. The following physical facility and building code requirements shall be applicable to all nonexempt Massage Businesses or Establishments, and to all Massage Businesses or Establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: 11

14 A. Except when there is no staff available to assure security for Massage Therapy patrons and staff who are behind closed doors, no Massage Therapy may be carried on behind locked, closed doors. B. All doors to dressing rooms, toilet rooms and Massage Therapy rooms or cubicles shall open inward and shall be self-closing. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner dressing rooms and Massage Therapy rooms or cubicles. C. Minimum lighting equivalent to at least one forty-watt light shall be provided in each Massage Therapy room or cubicle. D. A massage table shall be used for all Massage Therapy, with the exception of Thai, Shiatsu, and similar forms of Massage Therapy, which may be provided on a padded mat on the floor provided the patron is fully attired in loose clothing, pajamas, scrubs or similar style of garment. The tables should have a minimum height of eighteen (18) inches. Beds, floor mattresses and waterbeds are not permitted on the premises of the business or establishment. E. All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patron s valuables, and the patron shall be given control of the key or other means of access. F. The business or establishment shall comply with the following state building standards as adopted at Chapter of this code: 1. Have a system of adequate ventilation in accordance with the provisions of Section 705 of the Uniform Building Code of 1982, as referenced in Part 2, Chapter 7 of the matrix adoption tables, of Title 24 of the California Code of Regulations. 2. Have a supply of hot and cold running water in accordance with Part 5, Section 1001(d)(1), of Title 24 of the California Code of Regulations. 3. Have a supply of potable drinking water in accordance with Part 5, Section 1001(d)(3), of Title 24 of the California Code of Regulations. 4. Provide hand washing facilities in accordance with Part 5, Section 1001(d)(2), of Title 24 of the California Code of Regulations. 5. Provide public toilet rooms in accordance with Part 5, Sections 910(b) and 910(c), and Table No. C-1, of Title 24 of the California Code of Regulations HEALTH AND SAFETY REQUIREMENTS. The following health and safety requirements shall be applicable to all non-exempt Massage Businesses or Establishments, and to all Massage Businesses or Establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: A. The business or establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering or linen has once been used it shall be deposited in a closed receptacle and not used until properly laundered and sanitized. Towels, coverings and linens shall be laundered either by regular commercial laundering or by a noncommercial laundering process which includes immersion in water at least 140 F for not less than fifteen (15) minutes during the washing or rinsing operation. Clean towels, coverings and linens shall be stored in closed, clean cabinets when not in use. 12

15 B. All Massage Therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, and hot tubs and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use. C. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion. D. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (1) application of electricity which contracts the muscle; (2) application of topical lotions, creams, or other substances which affect living tissue, such as chemical peel preparations or bleaches; (3) penetration of the skin by metal needles; (4) abrasion of the skin below the nonliving, epidermal layers; (5) removal of skin by means of any razor-edged instrument or other device or tool; and (6) any needle-like instrument which is used for the purpose of extracting skin blemishes and other similar procedures. E. All bathrobes, bathing suits and or other garments that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be laundered after each use pursuant to Paragraph A of this section. F. All combs, brushes, and or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use. G. No patrons shall be allowed to use any shower facilities of the business or establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use. H. The patron s genitals, pubic area, anus, and female patron s breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the business or establishment is in the massage therapy room or cubicle with the patron. No Massage Therapy shall be provided to a patron that results in intentional contact, or occasional and repetitive contact with the genitals, anus, or areola of a patron ATTIRE AND PHYSICAL HYGIENE REQUIREMENTS. The following attire and physical hygiene requirements shall be applicable to all Licensees, and to all Massage Therapists and Massage Practitioners who are employed or retained by a nonexempt Massage Business or Establishment, or by a Massage Business or Establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: A. All persons shall be clean and wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid thigh to two (2) inches below the collarbone. The midriff may not be exposed. B. All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing Massage Therapy to a patron. No Massage Therapy shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed, broken (e.g., abraded, cut) or where a skin infection or eruption is present. 13