HomeMy WebLinkAbout13 ORD 1368 - MESSAGE PARLORS 08-04-09Agenda Item 13
• Reviewed:
AGENDA REPORT City Manager
Finance Director N/A
MEETING DATE: AUGUST 4, 2009
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: INTERIM URGENCY ORDINANCE NO. 1368 -
Massage Establishments and Therapists
SUMMARY
Ordinance No. 1368 is an interim measure proposed to implement regulations on the
establishment and operation of massage and massage therapists for a period of 45
days. The Tustin City Code currently requires massage businesses to obtain a
Conditional Use Permit, and all massage businesses must comply with the City's
Personal Services regulations. On September 27, 2008, the Governor signed Senate
Bill (SB) 731 revising the Business and Professions Code, relating to massage therapy.
Of specific note is the Bill's language providing for the certification of massage
practitioners and therapists by the Massage Therapy Council (a nonprofit organization)
and prohibiting a City from enacting ordinances regulating the practice of massage by a
certificate holder. The City Attorney's office has noted the need for an interim
Ordinance while the City monitors the state's newly enacted legislation and refines the
City's local code to ensure adequate regulations are enacted.
RECOMMENDATION:
That the City Council adopt Urgency Ordinance No. 1368 by at least afour-fifths vote.
FISCAL IMPACT:
Urgency Ordinance No. 1368 is aCity-initiated project. There is no direct fiscal impact
associated with the proposed Ordinance.
ENVIRONMENTAL:
Interim Urgency Ordinance No. 1368 is not subject to the California Environmental
Quality Act ("CEQA") pursuant to Title 14, California Code of Regulations, Sections
15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) because it has no potential for resulting in physical change to
the environment, directly or indirectly; it prevents changes in the environment pending
the completion of the written report described above.
City Council Report
August 4, 2009
Interim Urgency Ordinance No. 1368
Page 2
BACKGROUND AND DISCUSSION:
The Tustin City Code currently requires massage businesses to obtain a Conditional Use
Permit (CUP) and all massage businesses must comply with the Personal Services
regulations contained in City Code Section 3621 et seq. (Attachment 1). Chiropractors,
acupuncturists, medical doctors, etc. do not need a permit to provide these services. On
September 27, 2008, the Governor signed Senate Bill (SB) 731 revising the Business and
Professions Code, relating to massage therapy (Attachment 2). In part, the newly enacted
legislation:
• Provided for the certification of massage practitioners and therapists by the
Massage Therapy Council "MTC" (a nonprofit organization) and prohibited the City
from enacting ordinances regulating the practice of massage by a certificate holder;
• Limited the City from enacting ordinances that require a license, permit, or other
authorization to practice massage by an individual who is certified. Further, no
provision of any ordinance enacted by the City that is in effect before the
effective date of the legislation that requires a license, permit, or other
authorization to practice massage may be enforced against an individual who is
certified; and,
• Limited the City from adopting land use and zoning requirements applicable to
massage establishments or businesses that are different than the requirements
that are uniformly applied to other professional or personal services businesses.
The City Attorney determined the need for and prepared proposed Urgency Ordinance
No. 1368 to address these issues on a temporary basis. Adoption of Urgency
Ordinance No. 1368 would establish interim regulations on the establishment and
operation of massage and massage therapists. An urgency measure is necessary to
establish these requirements to protect health, safety, and welfare. The City is
authorized by Government Code Section 51031 to regulate massage establishments.
The MTC, beginning on September 1, 2009, may begin issuing massage practitioner
and therapist certificates to qualified individuals, and after September 1, 2009, any MTC
certificated individual shall be exempt from massage technician licensing and testing
requirements. As permitted by State law, the City is permitted to enact licensing
requirements for massage establishments consistent with the provisions of SB 731, the
regulations in the Ordinance No. 1368 will discourage massage establishments from
degenerating into houses of prostitution, and the means utilized in the Ordinance bear a
reasonable and rational relationship to the goals sought to be achieved and are
otherwise consistent with SB 731.
Detailed findings in support of and the associated regulations are contained within the
Urgency Ordinance No. 1368(Attachment 3).
Elizabeth A. Binsack
Director of Community Development
City Council Report
August 4, 2009
Interim Urgency Ordinance No. 1368
Page 3
Attachments:
1. Tustin City Code Section 3621 et seq.
2. Senate Bill (SB) 731
3. Urgency Ordinance No. 1368
S:\Cdd\CCREPORIIInterim Urgency Ordinance 1368 Massage Establishments
ATTACHMENTI
CHAPTER 6 PERSONAL SERVICES Page 1 of 8
PART 2 MASSAGE ESTABLISHMENTS AND MASSAGE TECHNICIANS
3621 PERMITS REQUIRED/ANNUAL RENEWAL REQUIRED
No person shall engage in business as a massage technician or as the operator of a massage
establishment without having a valid massage technician permit or massage operator permit issued
pursuant to this Article. Massage operator permits and massage technician permits shall be valid for a
maximum of one (1) year. Each massage technician and massage operator shall renew the permit
annually.
(Ord. No. 1252, Sec. II, 6-3-02)
3622 PREREQUISITES FOR MASSAGE OPERATOR PERMIT
No person shall be eligible to receive a massage operator permit until such person has obtained
a valid conditional use permit for a massage establishment pursuant to Tustin City Code Sections 9232,
9233, 9234, or 9235. A Healing Arts Practitioner, as defined in Section 3628(a), shall not be required to
obtain a conditional use permit to qualify for a massage operator permit.
(Ord. No. 1252, Sec. II, 6-3-02; Ord. No. 1289, Sec. 8, 1-3-05)
3623 APPLICATION REQUIREMENTS FOR MASSAGE OPERATOR PERMIT
In addition to~ all other information requested on the application form, the application shall
contain or be accompanied by the following:
(1) Information regarding the type of ownership of the business, i.e:, whether by
individual, partnership, corporation, or otherwise. If the applicant is a corporation, the
name of the corporation shall be set forth exactly as shown in its articles of incorporation
or charter together with the state and date of incorporation and the names and residence
addresses of each of its current officers and directors, and of each stockholder holding
more than five (5) penrent of the stock of that corporetion. If the applicant is a
partnership, the application shall set forth the name and residence of each of the
partners, including limited partners. If it is a limited partnership, it shall furnish a copy of
its certificate of limited partnership filed with the Secretary of State. If one (1) or more of
the partners is a corporation, the provision of this subsection pertaining to corporatlons
shall apply. The applicant corporation or partnership shall designate one of its officers or
general partners to act as its responsible managing officer. Such designated persons
shall complete and sign all applicatlon forms required for an individual applicant under
this Chapter.
(2) The precise name under which the massage establishment is to be conducted.
(3) The complete address and telephone numbers of the massage establishment.
(4) A complete current list of the names and residence addresses of all proposed
massage technicians and other employees in the massage establishment and the name
and residence address(es) of the manager(s). A manager is the .person(s) designated by
the operator of the massage establishment to act as the representative and agent of the
operator in managing day-today operations with the same liabilities and responsibilities
or who acts wfth evidence of management. Evidence of management includes, but is not
limited to, evidence that the individual has the power to direct or hire and dismiss
employees, control hours of operation, create policy or rules, or purchase supplies. A
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manager may also be an owner. A manager must meet the standards and qualifications
for a massage technician permit to qualify as a manager and obtain a massage
technician permit.
(5) A description of any other business operated on the same premises, or within the
City of Tustin, or within the State of California, which is owned or operated by the
applicant.
(6) The following personal information concerning the applicant:
(a) Full complete name and all aliases used by the applicant;
(b) Current address and all previous residential addresses for eight (8) years
immediately preceding the present applicant's address;
(c) Proof that the applicant is at least eighteen (18) years of age;
(d) Height, weight, color of hair, eyes, and sex;
(e) Two (2) front faced portrait color photographs at least two (2) inches by two
(2) inches in size.
(f) The applicant's complete business, occupation, and employment history for
eight (8) years preceding the date of application:
(g) The complete massage pemtit history of the applicant; whether such person
has ever had any permit or license issued by any agency, board, city, county,
territory, or state; the date of issuance of such a permit or license, whether the
permit or license was denied, revoked, or suspended; or if a vocational
professional license or permit was denied, revoked, or suspended; and the
reason therefor;
(h) All criminal convictions, including pleas of nolo contendere, within the last
five (5) years, including those dismissed or expunged pursuant to Penal Code
Section 1203.4, but excluding minor traffic violations, and the date and place of
each such conviction and reason therefor; and,
(i) A complete set of fingerprints taken by the Police Department.
(7) The name and address of the owner and lessor of the real property upon or in which
the business is to be conducted. If the applicant is not the legal owner of the property,
the application must be accompanied by a copy of the lease and a notarized
acknowledgment from the owner of the property that a massage establishment will be
located on his/her property.
(8) Authorization for the City, its agents and employees to seek verification of the
information contained in the application.
(Ord. No. 1252, Sec. II, 6-3-02; Ord. No. 1289, Sec. 4, 1-3-05)
3624 OPERATOR, MANAGER, AND MASSAGE TECHNICIAN REGULATIONS
Except as required by a State licensed medical practitioner, no massage technician, massage
technician aide, or employee shall massage the genital, buttock, or anal area of any patron or the
breasts of any female patron, nor shall any operator or manager of a massage establishment allow or
permit such massage. No massage operator or designated manager, while performing any task or
service associated with the massage business, shall be present in any room with another person
unless the person's genitals, buttocks, anus, or, in the case of female, her breasts, are fully covered.
No person, operator or massage technician granted a permit pursuant to this Article 3 shall use
any name or conduct business under any designation not specified in his/her permit.
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All massage establishments shall have a manager on the premises at all times the massage
establishment is open. The operator and/or manager shall post, on a daily basis, the name of each on-
duty manager and each on-duty technician in a conspicuous public place in the lobby of the massage
establishment. The operator, or the manager in the operator's absence, shall be responsible for
ensuring compliance with this Chapter. All operators and/or on-duty managers must be able to
communicate effectively with City officials.
No licensed establishment shall be open for the business of massage without having at least
one (1) massage technician holding a current valid permit of the specific establishment on the
premises, and on duty, at all times when said establishment is open.
The operator and/or manager(s) shall ensure the massage technician permit for each on-duty
massage technician is displayed in a conspicuous public place in the lobby and that each massage
technician is wearing or has his/her massage technician permit on his/her person at all times when in
the massage establishment. Such identification shall be provided to City officials upon demand.
An operator and/or on-duty manager shall be responsible for the conduct of all employees while
the employees are on the licensed premises. Any act or omission of any employee constituting a
violation of the provisions of this ordinance shall be deemed the act or omission of the operator for
purposes of determining whether the operator's license shall be revoked, suspended, denied, or
renewed.
No operator or manager shall employ any person as a massage technician who does not have a
valid massage technician permit issued pursuant to this Article 3. Every operator or manager shall
report to the Director any change of employees, whether by new or renewed employment, discharge, or
termination, on the form and in the manner required by the Director. The report shall contain the name
of the employee and the date of hire or termination. The report shall be made within five (5) days of the
hire or termination. The operator or designee shall deliver the permit and photo identification card of
any massage technician no longer employed by the operator to the Director within five (5) days of
termination of employment.
All persons employed in the massage establishment shall be fully clothed. Clothing shall be of a
fully opaque material and shall provide complete covering from mid-thigh to three (3) inches below the
collarbone.
The operator and/or on duty manager shall maintain a register of all employees, showing the
name, nicknames, and aliases used by the employee, home address, age, birth date, sex, height,
weight, color of hair and eyes, phone numbers, social security number, date of employment and
termination, if any, and duties of each employee. The above information on each employee shall be
maintained in the register on the premises for a period of two (2) years following termination. The
operator and/or manager on duty shall make the register of employees available immediately for
inspection by police upon demand of a representative of the police department at all reasonable times.
A permittee shall comply with all provisions of this Chapter and any applicable provision of the
Tustin Municipal Code.
The massage technician shall have his/her massage technician permit on his/her person at all
times when present in the massage establishment. Such identification shall be provided to City officials
upon demand. Massage technicians shall not perform any massage at any location other than the
location specified on the permit. While on duty, the massage technician shall not use any name other
than that specfied on the permit.
(Ord. No. 1252, Sec. II, 6-3-02)
3625 APPLICATION REQUIREMENTS FOR MASSAGE TECHNICIAN PERMIT
In addition to the information requested on the application form, first-time applicants and
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renewal applicants shall provide the following information along with the application form:
(1) A statement of the exact location at which the applicant will be working as a
massage technician, including the full street address and all telephone numbers
associated with said location, and the name and address of the massage establishment.
(2) The following personal information concerning the applicant:
(a) Full complete name and all aliases used by the applicant, along with
complete residence address~and telephone;
(b) Residential addresses for eight (8) years immediately preceding the present
address of the applicant;
(c) Acceptable written proof that the applicant is at least eighteen (18) years of
age;
(d) Height, weight, color of hair and eyes, and sex;
(e) Two (2) front faced portrait color photographs at least two (2) inches by two
(2) inches in size;
(f) The business, occupation, and employment history of the applicant for eight
(8) years immediately preceding the date of the application; and,
(g) The complete permit history of the applicant and whether such person has
ever had any license or permit issued by any agency, board, city, or other
jurisdiction denied, revoked, or suspended and the reasons therefore.
(3) Criminal convictions, including pleas of nolo contendere, within the last ten (10)
years, including those dismissed or expunged pursuant to Penal Code Section 1203.4,
but excluding minor traffic violations, and the date and place of each such conviction and
reason therefore.
(4) A complete set of fingerprints taken by the Police Department.
(5) Such other information and identification as the Chief of Police may require to
discover the truth of the matters herein specified and as required to be set forth in the
application.
(6) Authorization for the City, its agents, and employees to seek verification of the
information contained in the application.
(7) A statement in writing, and dated, by the applicant that he or she certifies under
penalty of perjury that all information contained in the application is true and correct.
(8) If during the term of a permit, a permit holder has any change in information
submitted on the original or renewal application, the permit holder shalt notify the
Director in writing of such change within ten (10) business days thereafter.
(9) Each applicant must furnish the following information:
(a) An original or certified copy of a diploma or certificate and certfied transcript
of graduation evidencing completion of one thousand (.1,000) hours in a
progressive course of instruction from a recognized school of massage, wherein
the method, practice, profession, theory, ethics, anatomical, and physiological
knowledge and practice of a massage technician is taught by State certified
instructors. A recognized school of massage means any school or institution of
learning which teaches, through State certified instructors, the theory, ethics,
practice, profession, or work of massage, which school or institution complies
with the California Education Code, including but not limited to section 94900,
94905, or 94915, and which requires a resident course of study before the
student shall be furnished with a diploma or certificate of graduation. Schools
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offering a correspondence course not requiring actual physical attendance shall
not be deemed a recognized school. Duplicate courses shall not be accepted.
The applicant must also supply a course description, an outline of material
covered, and a letter to the City from the school administrator verifying
completion. The Director may consider an applicant's study of massage
completed outside the State of California if proof of completion from a formalized
and progressive course of study in massage practice, anatomy, and/or
physiology is provided with the application. Proof of completion shall include
dates of study and the name, address, and telephone number of the school
attended. Any outside course of study submitted for approval shall meet the
State of California's Office of Post-Secondary Education's minimum requirements
and be for completion of one thousand (1,000) hours of on-premises training.
(b) Certification that the applicant has taken and obtained a passing score on
the test prescribed by the Director in accordance with this Part.
(i) The Director shall require one (1) of the following eligible testing
procedures to be applied to all applicants for massage technician
licenses. In the event the Director is apprised of facts indicating that a
testing procedure is impractical for the City to verify or to administer, then
the Director may prescribe that the other eligible testing procedure shall
apply to all applicants for massage technician licenses from and after the
date of the Director's determination. The eligible testing procedures that
may be prescribed by the Director are:
(a) That all applicants take and pass the then current NCE as
developed, administered, and verified by NCBTMB, or any other
massage test developed, administered, and verified by NCBTMB;
or
(b) That all applicants take and pass the then current "City
Standardized Massage Technician/Practitioner Test" ("City Test").
The City Test shall be a written examination testing the applicant's
knowledge of the basic subject matter, skills, and abilities needed
to perform safe and therapeutic massage. The City Test shall be
developed by the Director, who may rely upon tests developed
and administered by other state and local organizations. The City
Test shall be administered by the Director under conditions
adequate to ensure the security and accuracy of the testing
procedure. Each City Test shall be designated with a separate
identification number for tracking purposes. Applicants shall be
required to answer seventy (70) percent of the questions on the
City Test correctly in order to pass the City Test. The score shall
be calculated based on individual test results and shall not be
dependent upon the performance of a group of test takers (i.e., is
not graded on a "Bell Curve"). The City Council may, by
resolution, set and charge a fee for taking the City Test. An
applicant who fails to pass the City Test shall not be eligible to
take the City Test until thirty (30) days after the previous City Test.
An applicant who fails to pass upon a second attempt shall not
again be eligible until six (6) months thereafter. An additional
processing fee may be required to be filed with the Director prior
to taking each City Test. The City Test will be in English. In the
event the applicant does not read and write English sufficient to
take and pass the City Test, it shall be the responsibility of the
applicant to, at their own expense, make arrangements with a
Court-certified interpreter to interpret the examination. Proof of
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Court certification must be provided to the City prior to the
administration of the examination.
(ii) If the testing procedure prescribed by the Director is the NCE
administered by the NCBTMB, then the applicant shall satisfy this
subsection by causing the NCBTMB to mail, directly to the City, a
certificate indicating the applicant has taken the NCE and that the
applicant obtained the score on that NCE required by NCBTMB to pass
that NCE. If the testing procedure prescribed by the Director is the City
Test, then the applicant shall state the date upon which the City Test was
taken and the identification number provided on the test, so that the
Director can verify the taking and passing of the test.
(iii) Permits for massage operators and technicians are renewed on a
year to year basis provided that the permittees meet the requirements set
out in this Section 3625.
(a) Each massage technician whose permit expires between
December 6, 2004, and April 4, 2005, must comply with section
3625(9) by April 4, 2005, and his or her massage technician's
permit is hereby extended until April 4, 2005, if necessary. If said
massage technician does not comply with section 3625(9) by April
4, 2005, then his or her massage technician's permit expires, and
he or she must satisfy section 3625's requirements for a new
permit.
(b) Each massage technician whose massage technician permit
expires after Aprif 4, 2005, must comply with section 3625(9) to
renew .his or her massage technician permit.
(c) Each first-time or renewal applicant for a massage technician
permit who has previously taken and passed the NCE as
developed, administered, and verified by NCBTMB is not required
to take and pass the NCE a second time. Each applicant for a
massage technician permit who has taken and passed the NCE
must comply with Section 3625(9)(b)(ii).
(Ord. No. 1252, Sec. II, 6-3-02; Oni. No. 1289, Sec. 5, 1-3-05)
Editors nob: Section 9 of Ord. No. 1289 provided the requirements of amended Section 3625(9)
shall apply to any applicant for a massage technician permit who has not been issued a permit as of the
time this Ordinance was considen3d by the Planning Commission.
3626 MA33AGE ESTABLISHMENT REGULATIONS
No massage operator permit shall be issued unless an inspection by the City of Tustin reveals
that the massage establishment complies with each of the following regulations:
(1) A recognizable and readable sign shall be posted at the main entrance, identifying
the establishment as a massage establishment, provided that all such signs shall comply
with the Tustin Sign Code.
(2) Minimum lighting shall be provided in accordance with the Uniform Building Code.
In addition, a light level of no less than five (5) foot candles shall be maintained in public
rooms, walkways, and at any point within each room or enclosure where massage
services are performed, at all times such services are being provided.
(3) Minimum ventilation shall be provided in accordance with the Uniform Building
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Code.
(4) Adequate equipment for disinfecting and sterilizing instruments used in performing
the acts of massage shall be provided which are approved by the department or agency
designated by the City Manager to make inspections for compliance with health
standards.
(5) Pads used on massage tables shall be covered in a workmanlike manner with
durable, washable plastic or other waterproof material acceptable to the department or
agency designated by the City Manager to make inspections for compliance with health
standards.
(ti) In any massage establishment in which massage services are rendered only to
members of the same sex at any one time, such persons of the same sex may be placed
in a single separate room or the massage operator may elect to place such persons of
the same sex in separate enclosed rooms or booths having adequate ventilation to an
area outside said room or booth while massage services are being performed.
(7) Adequate bathing, dressing, locker, and toilet facilities shall be provided for patrons,
except that dressing and locker facilities shall not be required if all patrons remain fully
clothed while in the massage establishment, and bathing facilities shall be required only
when the massage establishment provides steam rooms or sauna baths. If applicable, a
minimum of one tub or shower, one dressing room containing a separate locker for each
patron to be served, which locker shall be capable of being locked, as well as a
minimum of one (1) toilet and one (1) wash basin shall be provided by the massage
establishment, provided, however, that if male and female patrons are to be served
simultaneously at the establishment, separate bathing, separate dressing, and separate
toilet facilities shall be provided for male and female patrons. Where steam rooms or
sauna baths are provided, if male and female patrons are to be served simultaneously,
separate steam rooms or sauna rooms shall be provided for male and female patrons.
Hot and cold running water under pressure shall be provided to all wash basins,
bathtubs, showers, and similar equipment. Each wash basin shall be provided with soap
or detergent and sanitary towels placed in permanently installed dispensers. A trash
receptacle shall be provided in each toilet room.
(8) All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other
physical facilities for the establishment must be in good repair and maintained in a clean
and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or
vapor cabinets, shower compartments, and toilet rooms shall be thoroughly Leaned
each day the business is in operation. Bathtubs shall be thoroughly cleaned after each
use.
(9) Clean and sanitary towels and linens shaA be provided for each patron of the
establishment or each patron receiving massage services. No common use of towels or
linens shall be permitted. Towels, sheets, and linens shall be provided in sufficient
quantity and shall not be used by more than one (1) person unless they have been first
relaundered. Separate closed cabinets or containers shall be provided for the storage of
clean and soiled linen and shall be plainly marked: "clean linen," "soiled linen."
(10) A minimum of one separate wash basin shall be provided in each massage
establishment for the use of employees of any such establishment, which basin shall
provide soap or detergent and hot and cold running water at all times, and shall be
located within or as close as practicable to the area devoted to the performing of
massage services. In addition, there shall be provided at each wash basin sanitary
towels placed in permanently installed dispensers.
(Ord. No. 1252, Sec. II, 6-3-02)
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3627 C1iANGE OF OWNERSHIP
A massage establishment operator shall report to the Director within ten (10) days any and all
changes of ownership or management of the massage establishment, including, but not limited to,
changes of manager or other person principally in charge, stockholders holding more than five (5)
percent of the stock of the corporation, officers, directors, and partners in any and all changes of name,
style, or designation under which the business is to be conducted, and all changes of address or
telephone numbers of the massage business. A change of location of any premises may be approved
by the Director, provided there is compliance with all applicable regulations of the City and a conditional
use permit has been approved for the new location.
No massage establishment permit may be sold, transferred, or assigned by a permittee, or by
operation of law, to any other person or persons. Any such sale, transfer, or assignment, or attempted
sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit and
such permit shall thereafter be null and void; provided and excepting, however, that if the permittee is a
partnership and one or more of the partners should die, one or more of the surviving partners may
acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a
surrender or termination of such permit, and in such case, the permit, upon notification to the Director,
shall be placed in the name of the surviving partners. A massage establishment permit issued to a
corporation shall be deemed terminated and void when either any outstanding stock of the corporation
is sold, transferred, or assigned after the issuance of a permit, or any stock authorized but not issued' at
the time of the granting of a permit is thereafter issued or sold, transferred, or assigned. No massage
technician permit may be sold, transferred, or assigned by a permittee, or any operation of law, to any
other person or persons.
(Ord. No. 1252, Sec. II, 6-3-02)
3628 EXEMPTION
(a) This part does not apply to cosmetologists, barbers, or to persons licensed to practice any
healing art pursuant to Business and Professions Code, Division 2, section 500 et seq., or the
Chiropractic Act (collectively, "Healing Arts Practitioner"), when performing massage within the
scope of his or her license. Such Healing Arts Practitioners shall be required to obtain a
massage operator permit if their employees are proposed to engage in massage.
(b) Notwithstanding any other provision. of law, this part applies to an employee of any person
described in subsection a if the employee is engaged in, or is purported to be engaged in, the
business of massage, and is located on the premises of a person described in subsection a.
(c) This part does not apply to City permitted massage technicians who perform chair massage
on fully clothed persons at public places.
(Ord. No. 1252, Sec. II, 6-3-02; Ord. No. 1289, Sec. 6, 1-3-05)
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ATTACHMENT 2
WAIS Document Retrieval
BILL NUMBER: SB 731 CHAPTERED 09/27/08
CHAPTER 38S
FILED WITH SECRETARY OF STATE SEPTEMBER
APPROVED BY GOVERNOR SEPTEMBER 27, 2008
PASSED THE SENATE AUGUST 19, 2008
PASSED THE ASSEMBLY AUGUST 13, 2008
AMENDED IN ASSEMBLY AUGUST 8, 2008
AMENDED IN ASSEMBLY JULY 9, 2007
AMENDED IN ASSEMBLY JUNB 25, 2007
AMENDED IN SENATE MAY 8, 2007
AMENDED IN SENATE APRIL 26, 2007
AMENDED IN SENATE APRIL 19, 2007
AMENDED IN SENATE APRIL 16, 2007
INTRODUCED BY Senator Oropeza
FEBRUARY 23, 2007
27, 2ooa
An act to add and repeal Chapter 10.5 (commencing with Section
4600) of Division 2 of the Business and Professions Code, relating to
massage therapy.
LEGISLATIVE COUNSEL'S DIGEST
SB 731, Oropeza. Massage therapy.
Existing law provides for the regulation of various healing arts
professionals, including physicians and surgeons, chiropractors,
physical therapists, and acupuncturists. Existing law authorizes the
legislative body of a city or county to enact ordinances providing
for the licensing and regulation of the business of massage when
carried on within the city or county.
This bill would, commencing September 1, 2009, provide for the
certification of massage practitioners and massage therapists by the
Massage Therapy Organization, which would be a nonprofit organization
meeting specified requirements, and would impose certain duties on
the organization. The bill would require applicants for certification
to be 18 years of age or older, to meet specified educational
criteria, to provide to the organization and update certain
information, to provide fingerprints for submission to the Department
of Justice for a criminal background check, and to pay fees required
by the organization. The bill would require the Department of
Justice to review specified information and to provide to the
organization fitness determinations and certain other information.
The bill would allow the organization to take certain disciplinary
action against certificate holders and would require the organization
to take certain action with regard to suspending or revoking a
certificate if the certificate holder has been arrested for, and
charged with, specified crimes. The bill would make it an unfair
business practice for a person to state, advertise, or represent that
he or she is certified or licensed by a governmental agency as a
massage therapist or practitioner, or to make other false
representations, as specified. The bill would prohibit a city,
county, or city and county from enacting certain ordinances
regulating the practice of massage by a certificate holder, ae
specified. The bill would make its provisions subject to review by
the Joint Committee on Boards, Commissions, and Consumer Protection.
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The bill would repeal these provisions on January 1, 2016.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of this act to create a voluntary
certification for the massage therapy profession that will enable
consumers to easily identify credible certified massage therapists;
assure that certified massage therapists have completed sufficient
training at approved schools; phase in increased education and
training standards consistent with other states; assure that massage
therapy can no longer be used as a subterfuge to violate subdivision
(a) or (b) of Section 647 of the Penal Code; and to provide a
self-funded nonprofit oversight body to approve certification and
education requirements for massage therapists.
SEC. 2. Chapter 10.5 (commencing with Section 4600) is added to
Division 2 of the Business and Professions Code, to read:
CHAPTER 10.5. MASSAGE THERAPISTS
4600. As used in this chapter, the following terms shall have the
following meanings:
(a) "Approved school" or "approved massage school" means a
facility that meets minimum standards for training and curriculum in
massage and related subjects and that is approved by any of the
following:
(1) The Bureau for Private Postsecondary and Vocational Education
pursuant to former Section 94739 of the Education Code prior to July
1, 2007, and as of the date on which an applicant met the
requirements of paragraph (2) of subdivision (b) or subparagraph (A)
of paragraph (2) of subdivision (c) of Section 4601.
(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 Corporations Code,
and that is not managed by any entity for profit.
(C) Afor-profit institution.
(D) An institution that does not meet all of the criteria in
subparagraph (B) 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 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 100850 of the Education Code.
(5) A school of equal or greater training that is approved by the
corresponding agency in another state or accredited by an agency
recognized by the United States Department of Education.
(b) "Compensation" means the payment, loan, advance, donation,
contribution, deposit, or gift of money or anything of value.
(c) "Massage therapist," "bodyworker," "bodywork therapist," or
"massage and bodywork therapist" means a person who is certified by
the Massage Therapy Organization under subdivision (c) of Section
4601 and who administers massage for compensation.
(d) "Massage practitioner," "bodywork practitioner," or "massage
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and bodywork practitioner" means a person who is certified by the
Massage Therapy Organization under subdivision (b) of Section 4601
and who administers massage for compensation.
(e) "Organization" means the Massage Therapy Organization created
pursuant to this chapter, which shall be a nonprofit organization
exempt from taxation under Section 501(c)(3) of Title 26 of the
United States Code. The organization may commence activities as
authorized by this section once it has submitted a request to the
internal Revenue Service seeking this exemption.
(f) "Registered school" means a facility that meets minimum
standards for training and curriculum in massage and related subjects
and that either was recognized by the Bureau for Private
Postsecondary and Vocational Education pursuant to Section 94931 of
the Education Code prior to July 1, 2007, and as of the date on which
an applicant met the requirements of paragraph (2) of subdivision
(b) or subparagraph (A) of paragraph (2) of subdivision (c) of
Section 4601, or is recognized by the Department of Consumer Affairs,
by an institution accredited by the senior commission or the junior
commission of the Western Association of Schools and Colleges as
defined in paragraph (2) of subdivision (a) of Section 4600, by a
college or university of the state higher education system as defined
in Section 100850 of the Education Code, or by a school of equal or
greater training that is approved by the corresponding agency in
another state.
(g) For purposes of this chapter, the terms "massage" and
"bodywork" shall have the same meaning.
4600.5. (a) A Massage Therapy Organization, as defined in
subdivision (e) of Section 4600, shall be created and shall have the
responsibilities and duties set forth in this chapter. The
organization may take any reasonable actions to carry out the
responsibilities and duties set forth in this chapter, including, but
not limited to, hiring staff and entering into contracts.
(b) (1) The organization shall be governed by a board of directors
made up of two representatives selected by each professional
society, association, or other entity, whose membership is comprised
of massage therapists and that chooses to participate in the
organization. To qualify, a professional society, association, or
other entity shall have a dues-paying membership in California of at
least 1,000 individuals for the last three years, and shall have
bylaws that require its members to comply with a code of ethics. The
board of directors shall also include each of the following persona:
(A) One member selected by each statewide association of private
postsecondary schools incorporated on or before January 1, 2010,
whose member schools have together had at least 1,000 graduates in
each of the previous three years from massage therapy programs
meeting the approval standards set forth in subdivision (a) of
Section 4600, except from those qualifying associations that choose
not to exercise this right of selection.
(B) One member selected by the League of California Cities, unless
that entity chooses not to exercise this right of selection.
(C) One member selected by the California State Association of
Counties, unless that entity chooses not to exercise this right of
selection.
(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.
(E) One member appointed by the California Community College
Chancellor's Office, unless that entity chooses not to exercise this
right of selection. The person appointed, if any, shall not be part
of any massage therapy certificate or degree program.
The organization's bylaws shall establish a process for appointing
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other professional directors as determined by the board.
(2) The initial board of directors shall establish the
organization, initiate the request for tax-exempt status from the
Internal Revenue Service, and solicit input from the massage
community concerning the operations of the organization. The initial
board of directors, in its discretion, may immediately undertake to
issue the certificates authorized by this chapter after adopting the
necessary bylaws or other rules, or may establish by adoption of
bylaws the permanent governing structure prior to issuing
certificates.
(c) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.
(d) The meetings of the organization shall be subject to the rules
of the Bagley-Keene Open Meetings Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code).
4601. (a) The organization shall issue a certificate under this
chapter to an applicant who satisfies the requirements of this
chapter.
(b) (1) In order to obtain certification as a massage
practitioner, an applicant shall submit a written application and
provide the organization with satisfactory evidence that he or she
meets all of the following requirements:
(A) The applicant is 18 years of age or older.
(B) The applicant has successfully completed, 'at a single approved
school, curricula. in massage and related subjects totaling a minimum
of 250 hours that incorporates appropriate school assessment of
student knowledge and skills. Included .in the hours shall be
instruction addressing anatomy and physiology, contraindications,
health and hygiene, and business and ethics, with at least 100 hours
of the required minimum 250 hours devoted to these curriculum areas.
(C) All fees required by the organization have been paid.
(2) New certificates shall not be issued pursuant to this
subdivision after December 31, 2015. Certificates issued pursuant to
this section or subdivision (a) or (c) of Section 4604 on or before
December 31, 2015, shall, after December 31, 2015, be renewed without
any additional educational requirements, provided that the
certificate holder continues to be qualified purauant.to this
chapter.
(c) In order to obtain certification as a massage therapist, an
applicant shall submit a written application and provide the
organization with satisfactory evidence that he or she meets all of
the following requirements:
(1) The applicant is 18 years of age or older.
(2) The applicant satisfies at least one of the following
requirements:
(A) He or she has successfully completed the curricula in massage
and related subjects totaling a minimum of 500 hours. Of this 500
hours, a minimum of 250 hours shall be from approved schools. The
remaining 250 hours required may be secured either from approved or
registered schools, or from continuing education providers approved
by, or registered with, the organization or the Department of
Consumer Affairs. After December 31, 2015, applicants may only
satisfy the curricula in massage and related subjects from approved
schools.
(B) The applicant has passed a massage and bodywork competency
assessment examination that meets generally recognized psychometric
principles and standards, and that is approved by the board. The
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successful completion of this examination may have been accomplished
before the date the organization is authorized by this chapter to
begin issuing certificates.
(3) All fees required by the organization have been paid.
(d) The organization shall issue a certificate to an applicant who
meets the other qualifications of this chapter and holds a current
and valid registration, certification, or license from any other
state whose licensure requirements meet or exceed those defined
within this chapter. The organization shall have discretion to give
credit for comparable academic work completed by an applicant in a
program outside of California.
(e) An .applicant applying for a massage therapist or massage
practitioner certificate shall file with the organization a written
application provided by the organization, showing to the satisfaction
of the organization that he or she meets all of the requirements of
this chapter.
(f) Any certification issued under this chapter shall be subject
to renewal every two years in a manner prescribed by the
organization, and shall expire unless renewed in that manner. The
organization may provide for the late renewal of a license.
(g) (1) The organization shall have the responsibility to
determine that the school or schools from which an applicant has
obtained the education required by this chapter meet the requirements
of this chapter. If the organization has any reason to question
whether or not the applicant received the education that is required
by this chapter from the school or schools that the applicant is
claiming, the organization shall investigate the facts to determine
that the applicant received the required education prior to issuing a
certificate.
(2) For purposes of paragraph (1) and any other provision of this
chapter for which the organization is authorized to receive factual
information as a condition of taking any action, the organization
shall have the authority to conduct oral interviews of the applicant
and others or to make any investigation deemed necessary to establish
that the information received is accurate and satisfies any criteria
established by this chapter.
4601.2. No certificates shall be issued by the organization
pursuant to this chapter prior to September 1, 2009.
4601.3. (a) Prior to issuing a certificate to the applicant or
designating a custodian o€ records, the organization shall require
the applicant or the custodian of records candidate to submit
fingerprint images in a form consistent with the requirements of this
section. The organization shall submit the fingerprint images and
related information to the Department of Justice for the purpose of
obtaining information as to the existence and nature of a record of
state and federal level convictions and of state and federal level
arrests for which the Department of Justice establishes that the
applicant or candidate was released on bail or on hie or her own
recognizance pending trial. Requests for federal level criminal
offender record information received by the Department of Justice
pursuant to this section shall be forwarded to the Federal Bureau of
Investigation by the Department of Justice. The Department of Justice
shall review the information returned from the Federal Bureau of
Investigation, and shall compile and disseminate a fitness
determination regarding the applicant or candidate to the
organization.
(b) The Department of Justice shall provide information to the
organization pursuant to subdivision (p) of Section 11105 of the
Penal Code.
(c) The Department of Justice and the organization shall charge a
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fee sufficient to cover the cost of processing the request for state
and federal level criminal offender record information.
(d) The organization shall request subsequent arrest notification
service from the Department of Justice, as provided under Section
11105.2 of the Penal Code, for all applicants for licensure or
custodian of records candidates for whom fingerprint images and
related information are submitted to conduct a search for state and
federal level criminal offender record information.
(e) Thia section shall become operative September 1, 2009.
4601.4. Organization directors, employees, or volunteer
individuals may undergo the background investigation process
delineated in Section 4601.3.
4602. (a) The organization may discipline a certificate holder by
any, or a combination, of the following methods:
(1) Placing the certificate holder on probation.
(2) Suspending the certificate and the rights conferred by this
chapter on a certificate holder for a period not to exceed one year.
(3) Revoking the certificate.
(4) Suspending or staying the disciplinary order, or portions of
it, with or without conditions.
(5) Taking other action as the organization, as authorized by this
chapter or its bylaws, deems proper.
(b) The organization may issue an initial certificate on
probation, with specific terms and conditions, to any applicant.
(c) (1) Notwithstanding any other provision of law, if the
organization receives notice that a certificate holder has been
arrested and charges have been filed by the appropriate prosecuting
agency against the certificate holder alleging a violation of
subdivision (b) of Section 647 of the Penal Code or any other offense
described in subdivision (h) of Section 4603, the organization shall
take all of the following actions:
(A) Immediately suspend, on an interim basis, the certificate of
that certificate holder.
(B) Notify the certificate holder within 10 days at the address
last filed with the organization that the certificate has been
suspended, and the reason for the suspension.
(C) Notify any business within 10 days that the organization has
in its records as employing the certificate holder that the
certificate has been suspended.
(2) Upon notice to the organization that the charges described in
paragraph (1) have resulted in a conviction, the suspended
certificate shall become subject to permanent revocation. The
organization shall provide notice to the certificate holder within 10
days that it has evidence of a valid record of conviction and that
the certificate will be revoked unless the certificate holder
provides evidence within 15 days that the conviction is either
invalid or that the information is otherwise erroneous.
(3) Upon notice that the charges have resulted in an acquittal, or
have otherwise been dismissed prior to conviction, the certificate
shall be immediately reinstated and the certificate holder and any
business that received notice pursuant to subparagraph (C) of
paragraph (1) shall be notified of the reinstatement within 10 days.
4602.5. (a) Upon the request of any law enforcement agency or any
other representative of a local government agency with
responsibility for regulating, or administering a local ordinance
relating to, massage or massage businesses, the organization shall
provide information concerning a certificate holder, including, but
not limited to, the current status of the certificate, any history of
disciplinary actions taken against the certificate holder, the home
and work addresses of the certificate holder, and any other
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information in the organization's possession that is necessary to
verify facts relevant to administering the local ordinance.
(b) The organization shall accept information provided by any law
enforcement agency or any other representative of a local government
agency with responsibility for regulating, or administering a local
ordinance relating to, massage or massage businesses. The
organization shall have the responsibility to review any information
received and to take any actions authorized by this chapter that are
warranted by that information.
4603. It is a violation of this chapter for a certificate holder
to commit, and the organization may deny an application for a
certificate or discipline a certificate holder for, any of the
following:
(a) Unprofessional conduct, including, but not limited to, denial
of licensure, revocation, suspension, restriction, or any other
disciplinary action against a certificate holder by another state or
territory of the United States, by any other government agency, or by
another California health care professional licensing board. A
certified copy of the decision, order, or judgment shall be
conclusive evidence of these actions.
(b) Procuring a certificate by fraud, misrepresentation, or
mistake.
(c) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate,
any provision or term of this chapter or any rule or bylaw adopted
by the organization.
(d) Conviction of any felony, or conviction of a misdemeanor that
is substantially related to the qualifications or duties of a
certificate holder, in which event the record of the conviction shall
be conclusive evidence of the crime.
(e) Impersonating an applicant or acting as a proxy for an
applicant in any examination referred to under this chapter for the
issuance of a certificate.
(f) Impersonating a certified practitioner or therapist, or
permitting or allowing an uncertified person to use a certificate.
(g) Committing any fraudulent, dishonest, or corrupt act that ie
substantially related to the qualifications or duties of a
certificate holder.
(h) Committing any act punishable as a sexually related crime.
4603.1. (a) No certificate holder or certificate applicant may be
disciplined or denied a certificate pursuant to Section 4603 except
according to procedures satisfying the requirements of this section.
A denial or discipline not in accord with this section or subdivision
(c) of Section 4602 shall be void and without effect.
(b) Any certificate applicant denial or certificate holder
discipline shall be done in good faith and in a fair and reasonable
manner. Any procedure that conforms to the requirements of
subdivision (c) is fair and reasonable, but a court may also find
other procedures to be fair and reasonable when the full
circumstances of the certificate denial or certificate holder
discipline are considered.
(c) A procedure is fair and reasonable when the procedures in
subdivision (c) of Section 4602 are followed, or if all of the
following apply:
(1) The provisions of the procedure have been set forth in the
articles or bylaws, or copies of those provisions are sent annually
to all the members as required by the articles or bylaws.
(2) It provides the giving of 15 days prior notice of the
certificate denial or certificate holder discipline and the reasons
therefor.
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(3) It provides an opportunity for the certificate applicant or
certificate holder to be heard, orally or in writing, not leas than
five days before the effective date of the certificate denial or
certificate holder discipline by a person or body authorized to
decide that the proposed certificate denial or certificate holder
discipline not take place.
(d) Any notice required under this section may be given by any
method reasonably calculated to provide actual notice. Any notice
given by mail must be given by first-class or certified mail sent to
the last address of the certificate applicant or, certificate holder
shown on the organization's records.
(e) Any action challenging a certificate denial or certificate
holder discipline, including any claim alleging defective notice,
shall be commenced within one year after the date of the certificate
denial or certificate holder discipline. If the action is successful,
the court may order any relief, including reinstatement, that it
finds equitable under the circumstances.
(f) This section governs only the procedures for certificate
denial or certificate holder discipline and not the substantive
grounds therefor. A certificate denial or certificate holder
discipline based upon substantive grounds that violates contractual
or other rights of the member or is otherwise unlawful is not made
valid by compliance with this section.
(g) A certificate applicant or certificate holder who is denied or
disciplined shall be liable for any charges incurred, services or
benefits actually rendered, dues, assessments, or fees incurred
before the certificate denial or certificate holder discipline or
arising from contract or otherwise.
4603.5. It shall be the responsibility of any certificate holder
to notify the organization of his or her home address, as well as the
address of any business establishment where he or she regularly
works as a massage therapist or massage practitioner, whether as an
employee or as an independent contractor. A certificate holder shall
notify the organization within 30 days of changing either his or her
home address or the address of the business establishment where he or
she regularly works as a massage therapist or massage practitioner.
4604. (a) Notwithstanding Section 4601, the organization may
grant a massage practitioner certificate to any person who applies on
or before January 1, 2012, with one of the following:
(1) A current valid massage permit or license from a California
city, county, or city and county and documentation evidencing that
the person has completed at least a 100-hour course in massage at a
state-approved or registered school, or out-of-state school
recognized by the organization as providing comparable education, has
been practicing for at least three years, and has provided at least
1,000 hours of massage to members of the public for compensation.
(2) Documentation evidencing that the person has completed at
least a 100-hour course in massage at a state-approved or registered
school, or out-of-state school recognized by the organization as
providing comparable education, has been practicing for at least
three years, and has provided at least 1,750 hours of massage to
members of the public for compensation. For purposes of this
subdivision, 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.
(B) Tax returns indicating self-employment as a massage
practitioner or massage therapist or any other title that may
demonstrate experience in the field of massage.
(3) Documentation evidencing that the person holds a current valid
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certificate of authorization as an instructor at an approved massage
school, or holds the position of a massage instructor at a school
accredited by an agency recognized by the United States Department of
Education, or colleges and universities of the state higher
education system, ae defined in Section 100850 of the Education Code.
(b) (1) After reviewing the information submitted under
subdivision (a), the organization may require additional information
necessary to enable it to determine whether to issue a certificate.
(2) If an applicant under paragraph (1) of subdivision (a) or
paragraph (1) of subdivision (c) has not complied with Section
4601.3, or its equivalent, when obtaining a license or permit from
the city, county, or city and county, the organization shall require
the applicant to comply with Section 4601.3 prior to issuing a
certificate pursuant to this section.
(c) (1) A person applying for a massage practitioner certificate
on or before January 1, 2012, who meets the educational requirements
of either paragraph (1) or (2) of subdivision (a), but who has not
completed the required number of practice hours prior to submitting
an application pursuant to this section, may apply for a conditional
certificate.
(2) An applicant for a conditional certificate shall, within five
years of being issued the conditional certificate, be required to
complete at least 30 hours of additional education per year from
schools or courses described in paragraph (5) until he or she has
completed a total of at least 250 hours of education, which may
include massage education hours previously completed in a massage
course described in either paragraph (1) or (2) of subdivision (a).
(3) Upon successful completion of the requirements of this
subdivision, the organization shall issue a certificate to the person
that is not conditional.
(4) The organization shall immediately revoke the conditional
certificate issued to any person pursuant to this subdivision if the
time period specified in paragraph (2) expires without proof of
completion of the
requirements having been filed with the organization.
(5) Any additional education required by this section may be
completed through courses provided by any of the following:
(A) An approved school.
(B) A registered school.
(C) A provider approved by, or registered with, the organization
or the Department of Consumer Affairs.
(D) A provider that establishes to the satisfaction of the
organization that its course or courses are appropriate educational
programs for this purpose.
(d) Nothing in this section shall preclude the organization from
exercising any power or authority conferred by this chapter with
respect to a conditional certificate holder.
4605. It is an unfair business practice for any person to 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
he or she is certified, registered, or licensed by a governmental
agency as a massage therapist or massage practitioner.
4606. It is an unfair business practice for any person to hold
oneself out or use the title of "certified massage therapist" or
"certified massage practitioner" or any other term, such ae
"licensed," "registered," or "CMT," that implies or suggests that the
person is certified as a massage therapist or practitioner without
meeting the requirements of Section 4601 or 4604.
4607. The superior court in and for the county in which any
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person acts as a massage practitioner or massage therapist in
violation of the provisions of this chapter, may, upon a petition by
any person, issue an injunction or other appropriate order
restraining the conduct. The proceedings under this paragraph shall
be governed by Chapter 3 (commencing with Section 525) of Title 7 of
Part 2 of the Code of Civil Procedure.
4608. Nothing in this chapter is intended to limit or prohibit a
person who obtains a certification pursuant to this chapter from
providing services pursuant to, and in compliance with, Sections
2053.5 and 2053.6.
4612. (a) (1) The holder of a certificate issued pursuant to this
chapter shall have the right to practice massage, consistent with
this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section, to engage in
that practice.
(2) Notwithstanding any other provision of law, a city, county, or
city and county shall not enact an ordinance that requires a
license, permit, or other authorization to practice massage by an
individual who is certified pursuant to this chapter and who is
practicing consistent with the qualifications established by hie or
her certification. No provision of any ordinance enacted by a city,
county, or city and county that is in effect before the effective
date of this chapter, and that requires a license, permit, or other
authorization to practice massage, may be enforced against an
individual who is certified pursuant to this chapter.
(3) Except as provided in subdivision (b), nothing in this section
shall be interpreted to prevent a city, county, or city and county
from adopting or enforcing any local ordinance governing zoning,
business licensing, and reasonable health and safety requirements for
massage establishments or businesses. Subdivision (b) shall not
apply to any massage establishment or business that employs or uses
persons to provide massage services who are not certified pursuant to
this chapter.
(b) (1) This subdivision shall apply only to massage
establishments or businesses that are sole proprietorships, where the
sole proprietor is certified pursuant to this chapter, and to
massage eetabliahmente.or businesses that employ or use only persons
certified pursuant to this chapter to provide massage services. For
purposes of this subdivision, a sole proprietorship is a business
where the owner is the only person employed by that business to
provide massage services.
(2) (A) Any massage establishment or business described in
paragraph (1) shall maintain on its premises evidence for review by
local authorities that demonstrates that all persons providing
massage services are certified.
(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (1) to file copies or
provide other evidence of the certificates held by the persona who
are providing massage services at the business.
(3) A city, county, or city and county may charge a massage
business or establishment a business licensing fee sufficient to
cover the costa of the business licensing activities established by a
local ordinance described in this section.
(4) Nothing in this section shall prohibit a city, county, or city
and county from adopting land use and zoning requirements applicable
to massage establishments or businesses, provided that these
requirements shall be no different than the requirements that are
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uniformly applied to other professional or personal services
businesses.
(5) Local building code or physical facility requirements
applicable to massage establishments or businesses shall not require
additional restroom, shower, or other facilities that are not
uniformly applicable to other professional or personal service
busineeaes, nor shall building or facility requirements be adopted
that (A) require unlocked doors when there is no staff available to
assure security for clients and massage staff who are behind closed
doors, or (B) require windows that provide a view into massage rooms
that interfere with the privacy of clients of the massage business.
(6) A city, county, or city and county may adopt reasonable health
and safety requirements with respect to massage establishments or
businesses, including, but not limited to, requirements for
cleanliness of massage rooms, towels and linens, and reasonable
attire and personal hygiene requirements for persons providing
massage services, provided that nothing in this paragraph shall be
interpreted to authorize adoption of local ordinances that impose
additional qualifications, such as medical examinations, background
checks, or other criteria, upon any person certified pursuant to this
chapter.
(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:
(A) Requiring an applicant for a.buainese license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information.
(B) Making reasonable investigations into the information so
provided.
(C) Denying or restricting a business license if the applicant
has provided materially false information.
(c) An owner or operator of a massage business or eatabliahment
subject to subdivision (b) shall be responsible for the conduct of
all employees or independent contractors working on the premises of
the business. Nothing in this section shall preclude a local
ordinance from authorizing suspension, revocation, or other
restriction of a license or permit issued to a massage eatabliahment
or business if violations of this chapter, or of the local ordinance,
occur on the business premises.
(d) Nothing in this section shall preclude a city, county, or city
and county from adopting a local ordinance that is applicable to
massage businesses or establishments described in paragraph (1) of
subdivision (b) and that does either of the following:
(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health and
safety requirements.
(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management, or
convey the business to another person.
4613. (a) Nothing in this chapter shall restrict or limit in any
way the authority of a city, county, or city and county to adopt a
local ordinance governing any person who is not certified pursuant to
this chapter.
(b) Nothing in this chapter is intended to affect the practice
rights of any person licensed by the state to practice or perform any
functions or services pursuant to that license.
4615. This chapter shall be subject to the review required by
Division 1.2 (commencing with Section 473).
4620. This chapter shall remain in effect only until January 1,
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2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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10/30/2008
ATTACHMENT 3
ORDINANCE NO.
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING PART 2
OF CHAPTER 6 OF THE TUSTIN CITY CODE, RELATING TO
REGULATION OF MASSAGE ESTABLISHMENTS AND
MASSAGE THERAPISTS FOR A PERIOD OF FORTY-FIVE
DAYS PENDING THE COMPLETION OF A STUDY OF THE
REGULATIONS AND IMPLEMENTATION GUIDELINES
ANTICIPATED FROM THE MASSAGE THERAPY COUNCIL
APPLICABLE TO THE REGULATION OF MASSAGE
THERAPISTS UNDER RECENT STATE LEGISLATION. (4/Sths
Vote Required.)
The City Council of the City of Tustin ordains:
SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the California
Government Code.
SECTION 2. Part 2 of Chapter 6 of the Tustin City Code, entitled "Massage Establishments and
Massage Therapists" is amended to read:
PART 2 MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS
3621.01 Purpose and intent.
It is the purpose and intent of this Part to provide for the orderly regulation of massage
establishments and their massage therapists and employees in the City.
3621.02 Definitions.
For the purpose of this Part, the words, terms, and phrases set forth in this Section shall have the
meanings herein set forth unless the context clearly requires a different meaning.
"City's Building Codes" means the various codes adopted and amended pursuant to Sections 8100
through 8927 inclusive of the Tustin City Code.
"Conviction" or "convicted" means a verdict or formal judgment of guilt, or entry of a plea of guilty or
nolo contendere in a criminal proceeding.
"Director" shall mean the Director of the Community Development of the City or the Director's
designee.
"Manager" means a person who has been designated by an operator to be responsible for the operation of
a licensed massage establishment.
"Massage" or "Massage therapy" means any method of pressure on, or friction against, or stroking,
kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body
with the hands or with the aid of any mechanical or electrical apparatus, or other appliances or devices,
with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream,
lotion, ointment, or other similar preparations.
"Massage establishment" means any business conducted within the City of Tustin where any person,
firm, association, partnership, corporation, or combination of individuals engages in, conducts, carries
on, or permits to be engaged in, conducted or carried on for money or any other consideration,
administers to another person a massage, bath, or health treatment involving massages or baths.
'"Massage therapist," "Massage technician," and Massage Practitioner" means any person who
administers massages, baths, or health treatments involving massages or baths as the principal functions
to another person for any consideration whatsoever, and meets the training and certification
requirements established herein.
"Massage Therapy Organization" or "MTO" shall mean the non-profit organization established by SB
731 (Chapter 384, 2008 Statutes), Business and Professions Code sections 4600 et seq., and authorized
t:o issue massage practitioner or therapist certificates on a statewide basis pursuant to section 4600(g).
"National Certification Board for Therapeutic Massage and Bodywork" or "NCBTMB" means the
National Certification Board for Therapeutic Massage and Bodywork, which is anot-for-profit
organization accredited by the National Commission for Certifying Agencies having its principle offices
located at 8201 Greensboro Drive, Suite 300, McLean, VA 22102.
"National Certification Examination for Therapeutic Massage and Bodywork" or "NCE" means the
National Certification Examination for Therapeutic Massage and Bodywork developed and administered
by the NCBTMB.
"'Operator" means a person who has been issued a license to operate a massage establishment.
"Person" means any individual, firm, association, partnership, corporation, joint venture, limited liability
company, or combination of individuals.
"Police Chief' means the Police Chief of the City of Tustin or the Police Chief s designee.
"Recognized school of massage" means any school or institution of learning which teaches, through
state certified instructors, the theory, ethics, practice, profession, or work of massage, which school or
institution complies with the California Education Code, including but not limited to Section 94900,
94905, or 94915, and which requires a resident course of study before the student shall be furnished with
a diploma or certificate of graduation. Schools offering a correspondence course not requiring actual
attendance shall not be deemed a recognized school.
3622.01 Permit Requirements.
A. It shall be unlawful for any person, to own, operate, manage, engage in, conduct, or carry on, in
or upon any premises within the City, a massage establishment without a massage operator permit
obtained in accordance with this Part.
B. A massage operator permit shall only be issued to the person signing the application, after
compliance of this Part and all other applicable provisions of this Code, including, but not limited to, the
payment of the appropriate application fees, unless grounds for denial of the massage establishment
permit are found to exist.
C. No operator permit shall be issued to a person pursuant to this Part unless: (i) the massage
establishment is located and conducted on the premises of a fixed location within the City; (ii) the
2
massage establishment is located and conducted within a zoning district that permits such uses; and (iii)
an occupancy permit has been issued by the City for the massage establishment.
D. A separate license shall be obtained for each separate massage establishment owned, operated, or
managed by such person.
3622.02 Application for massage establishment operator's permit.
A. Any person desiring an operator's permit for a massage establishment business shall file a
written application on the required form with the Director, who shall conduct an investigation. The
application shall be accompanied by a filing fee as established by resolution of the City Council to
<;onduct the investigation and process the application on the City's behalf. The City may also establish
by resolution of the City Council an appropriate filing fee, which represents the City's costs to conduct
the investigation and process the application. The application is completed and signed by the operator of
the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a
partnership; one officer or one director, if the operator is a corporation; and one participant, if the
operator is a joint venture. The application for permit does not authorize operation of a massage
establishment unless and until such permit has been properly granted. The application shall contain or be
accompanied by the following:
1. The type of ownership of the business, i.e., whether by individual, partnership,
corporation, or otherwise. If the applicant is a corporation, the name of the corporation shall be
set forth exactly as shown in its articles of incorporation or charter together with the state and
date of incorporation and the names and residence addresses of each of its current officers and
directors, and of each stockholder holding more than five percent of the stock of that corporation.
If the applicant is a partnership, the application shall set forth the name and residence of each of
the partners, including limited partners. If it is a limited partnership, it shall furnish a copy of its
certificate of limited partnership filed with the Secretary of State. If one or more of the partners is
a corporation, the provision of this subsection pertaining to corporations shall apply. The
applicant corporation or partnership shall designate one of its officers or general partners to act
as its responsible managing officer. Such designated persons shall complete and sign all
application forms required for an individual applicant under this chapter, but only one application
fee shall be charged.
2. The precise name under which the massage establishment is to be conducted.
3. The complete address and telephone numbers of the massage establishment.
4. A complete current list of the names and residence addresses of all proposed massage
technicians, MTO certificate holders, and employees in the massage establishment and the name
and residence addresses of the manager or managing employee proposed to be principally in
charge of the operation of the massage establishment, together with copies of MTO certificates
or technician permits, as the case may be.
5. A description of any other business operated on the same premises, or within the city, or
within the state, which is owned or operated by the applicant.
6. The following personal information concerning the applicant:
a. Full complete name and all aliases used by the applicant.
3
b. Current address and all previous residential addresses for seven years immediately
preceding prior to the present address of the applicant.
c. Acceptable proof that the applicant is at least eighteen (18) years of age.
d. Height, weight, color of hair, eyes, and sex.
e. Two front faced portrait photographs at least two inches by two inches in size.
f. The applicant's complete business, occupation, and employment history for seven
years preceding the date of application, including, but not limited to, the massage or
similar business history and experience of the applicant.
g. The complete massage permit history of the applicant; whether such person has
ever had any permit or license issued by any agency, board, city, county, territory, or
state; the date of issuance of such a permit or license, whether the permit or license was
denied, revoked, suspended or refused to be renewed; or of a vocational or professional
license or permit was denied, revoked, suspended or refused to be renewed; and the
reason therefore.
h. All criminal convictions, including pleas of nolo contendre, within the last ten
years including those dismissed or expunged pursuant to Penal Code Section 1203.4, but
excluding minor traffic violations, and the date and place of each such conviction and
reason therefor.
i. A complete set of fingerprints taken in a manner approved by the Police Chief.
7. The name and address of the owner and lessor of the real property upon or in which the
business is to be conducted. In the event the applicant is not the legal owner of the property, the
application must be accompanied by a copy of the lease and a notarized acknowledgment from
the owner of the property that a massage establishment will be located on his or her property.
8. An acknowledgment that the city, its agents and employees will seek verification of the
information contained in the application pursuant to Business and Professions Code section
4612(b)(7)(B).
9. A statement in writing and dated by the applicant that he or she certifies under penalty of
perjury that all information contained in the application is true and correct.
10. If, during the term of a permit, the permit holder has any change in information submitted
on the original or renewal application, the permit holder shall notify the Police Department of
such change within ten business days thereafter, in writing.
3622.03 Massage establishment operator's permit issuance and denial.
Upon receipt of a complete application for a permit, the Director shall conduct an investigation to
ascertain whether such permit should be issued. The Director shall within thirty (30) days of receipt of a
complete application, approve, conditionally approve, or deny the application. The thirty (30) day period
may be extended by the Director for up to thirty (30) additional days, to complete the investigation. The
Cirector shall issue such permit as requested, unless he or she makes any of the following findings:
1. The applicant, if an individual, or any of the officers or directors of the corporation, if the
applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly
engaged or employed in the massage establishment, has within seven years preceding the date of
the application:
a. Been convicted of a violation of California Penal Code sections 266h, 266i, 314,
315, 316, 318, Subsections (a), or (b) of Penal Code Section 647 or any other provision of
4
law pursuant to which a person is required to register under the provisions of Penal Code
Section 290, or when the prosecution accepted a plea of guilty or nolo contendere to a
charge of a violation of California Penal Code Section 415 or any lesser included or
lesser related offense, in satisfaction of or as a substitute for, any of the previously listed
crimes.
b. Been convicted of a violation of Health and Safety Code Section 11550 or any
offense involving the illegal sale, distribution, or possession of a controlled substance
specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058.
c. Been convicted of any offense in any other state which is the equivalent of any of
the above-mentioned offenses.
d. Been engaged in conduct in another jurisdiction which, if it had occurred within
the city, would constitute grounds for denial, suspension, or revocation under this chapter.
e. Been subjected to a permanent injunction against the conducting or maintaining of
nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any
similar provisions of law in a jurisdiction outside the state.
£ Engaged in conduct which would constitute an offense as described in subsection
(A)(1)(a) of this section.
g. Committed an act in another jurisdiction, which if committed in this state would
have been a violation of law or, which, if done by a permittee under this chapter, would
be grounds for denial, suspension or revocation of the permit.
h. Been convicted of an act involving dishonesty, fraud, deceit or an act of violence,
which act or acts are related to the qualifications, functions, or duties of the operator.
i. The applicant has had a massage operator permit, MTO certificate, massage
technician permit or other similar license or permit denied, suspended, revoked, or
refused to be renewed for cause by a licensing authority or by any city, county, or state.
2. The applicant has made a false, misleading, or fraudulent statement or omission of fact to
the city in the permit application process.
3. The application does not contain all of the information required by Section 3622.02 of
this Part.
4. The massage establishment as proposed by the applicant does not comply with all
applicable laws, including, but not limited to, health, zoning, fire and safety requirements and
standards.
5. If the application is denied for failure to comply with subsections A-2 or A-3 of this
section, the applicant may not reapply for a period of one year from the date the application was
denied.
6. The applicant, or any of the applicant's employees or independent contractors, has
violated a provision of Business and Professions Code sections 4600-4613.
3622.04 Massage establishment operating requirements.
A. No massage operator permit shall be issued unless an inspection by the City of Tustin reveals
that the massage establishment complies with each of the following regulations:
5
I. A recognizable and readable sign shall be posted at the main entrance, identifying the
establishment as a massage establishment, provided that all such signs shall comply with the
Tustin Sign Code.
2. Minimum lighting shall be provided in accordance with the City Building Codes. In
addition, a light level of no less than five (5) foot candles shall be maintained in public rooms,
walkways, and at any point within each room or enclosure where massage services are
performed, at all times such services are being provided.
3. Minimum ventilation shall be provided in accordance with the Uniform Building Code.
4. Adequate equipment for disinfecting and sterilizing instruments used in performing the
acts of massage shall be provided which are approved by the department or agency designated by
the City Manager to make inspections for compliance with health standards.
5. Pads used on massage tables shall be covered in a workmanlike manner with durable,
washable plastic or other waterproof material acceptable to the department or agency designated
by the City Manager to make inspections for compliance with health standards.
6. In any massage establishment in which massage services are rendered only to members of
the same sex at anyone time, such persons of the same sex may be placed in a single separate
room or the massage operator may elect to place such persons of the same sex in separate
enclosed rooms or booths having adequate ventilation to an area outside said room or booth
while massage services are being performed.
7. Adequate bathing, dressing, locker, and toilet facilities shall be provided for patrons,
except that dressing and locker facilities shall not be required if all patrons remain fully clothed
while in the massage establishment, and bathing. facilities shall be required only when the
massage establishment provides steam rooms or sauna baths. If applicable, a minimum of one
tub or shower, one dressing room containing a separate locker for each patron to be served,
which locker shall be capable of being locked, as well as a minimum of one (1) toilet and one (1)
wash basin shall be provided by the massage establishment, provided, however, that if male and
female patrons are to be served simultaneously at the establishment, separate bathing, separate
dressing, and separate toilet facilities shall be provided for male and female patrons. Where
steam rooms or sauna baths are provided, if male and female patrons are to be served
simultaneously, separate steam rooms or sauna rooms shall be provided for male and female
patrons. Hot and cold running water under pressure shall be provided to all wash basins,
bathtubs, showers, and similar equipment. Each wash basin shall be provided with soap or
detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall
be provided in each toilet room.
8. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical
facilities for the establishment must be in good repair and maintained in a clean and sanitary
condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower
compartments, and toilet rooms shall be thoroughly cleaned each day the business is in operation.
Bathtubs shall be thoroughly cleaned after each use.
9. Clean and sanitary towels and linens shall be provided for each patron of the
establishment or each patron receiving massage services. No common use of towels or linens
shall be permitted. Towels, sheets, and linens shall be provided in sufficient quantity and shall
6
not be used by more than one (1) person unless they have been first re-laundered. Separate
closed cabinets or containers shall be provided for the storage of clean and soiled linen and shall
be plainly marked: "clean linen," "soiled linen."
10. A minimum of one separate wash basin shall be provided in each massage establishment
for the use of employees of any such establishment, which basin shall provide soap or detergent
and hot and cold running water at all times, and shall be located within or as close as practicable
to the area devoted to the performing of massage services. In addition, there shall be provided at
each wash basin sanitary towels placed in permanently installed dispensers.
B. All massage establishments, their owners, operators, and managers are subject to the following
massage establishment operating conditions:
1. Except to the extent required, in writing, by a state licensed medical practitioner, no
massage establishment employee or independent contractor shall massage the genital, buttock, or
anal area of any patron or the breasts of any female patron, nor shall any operator or manager of
a massage establishment allow or permit such massage. No massage operator or designated
manager while performing any task or service associated with the massage business, shall be
present in any room with another person unless the person's genitals, buttocks, anus, or, in the
case of female, her breast(s), are fully covered.
2. No person granted a permit pursuant to this chapter shall use any name or conduct
business under any designation not specified in his or her permit.
3. All massage establishments required to be licensed under this chapter shall have a
manager on the premises at all times the massage establishment is open. The operator of each
massage establishment shall file a statement with the Director designating the person or persons
with power to act as a manager. The operator and/or on-duty manager shall post, on a daily basis,
the name of each on-duty manager and each on-duty technician in a conspicuous public place in
the lobby of the massage establishment. The operator, or the manager in the operator's absence,
shall be responsible for ensuring compliance with this chapter. All operators and/or on-duty
managers must be able to communicate effectively with city regulatory officials.
4. No licensed establishment shall be open for business without having at least one massage
technician, or MTO certificate holder on the premises, and on duty, at all times when said
establishment is open and ready to perform massage therapy.
5. The operator shall ensure that copies of massage technician permits or MTO certificates,
as the case may be, are prominently displayed for each individual authorized to perform massage
in a conspicuously public place in the lobby. Such identification shall be provided to city
regulatory officials upon demand.
6. No operator or manager shall employ or retain any person to perform massage therapy
who does not have a valid massage technician permit or MTO certificate. Every operator or
manager shall report to the Director any change of employees/independent contractor, whether
by new or renewed employment, discharge or termination, on the form and in the manner
required by the Director. The report shall contain the name of the employee and the date of hire
or termination. The report shall be made within five days of the hire or termination. The operator
shall deliver the permit and photo identification card of any massage technician/independent
contractor no longer employed by the operator to the Director within five days.
7
7. All persons employed or retained in the massage establishment shall be fully clothed at
all times. Clothing shall be of a fully opaque, nontransparent material and shall provide complete
covering from mid-thigh to three inches below the collar bone.
8. The operator and/or on duty manager shall maintain a register of all
employees/independent contractors, showing the name, nicknames, and aliases used by the such
person, home address, age, birth date, sex, height, weight, color of hair and eyes, phone numbers,
social security number, date of employment and termination, if any, and duties of each employee.
The above information on each employee shall be maintained in the register on the premises for a
period of two years following termination. The operator and/or manager on duty shall make the
register of employees available immediately for inspection by police upon demand of a
representative of the Police Department at all reasonable times.
9. Pursuant to Business and Professions Code section 4612(c), the massage establishment
permittee is responsible for the conduct of all employees and independent contractors working on
the business premises. Accordingly, an operator's permit may be suspended or revoked based
also upon violations of this chapter committed by the permittee's employees or independent
contractors.
3623.01 Applicability of city massage technician permit requirements.
A. No person shall perform or administer a massage unless such person has a valid massage
technician permit, excepting those persons who are MTO certificated as described in subsection (b) of
this section.
B. After September 1, 2009, any person having received, and presented proof of, a valid MTO
massage practitioner or therapist certificate shall be exempt from the massage technician permit
requirements of this section in accordance with Business and Professions Code sections 4600 et seq.
C. Beginning September 1, 2009, Business and Professions Code sections 4600 et seq. establishes a
voluntary system of certification for individuals desiring to practice massage therapy. Therefore, any
individual electing not to become MTO certificated shall be subject to the massage technician permit
requirements contained within this chapter.
3623.02' Application for massage technician permit.
A. Any person desiring a massage technician permit shall file a written application on the
required form with the Director who shall conduct an investigation. The application is accompanied by
an appropriate filing fee as may be established by the City Council by resolution. The application shall
contain the following information:
1. A statement of the exact massage establishment location at which the applicant will be
working as a massage technician, including the full street address and all telephone numbers
associated with said fixed location, and the name and address of the massage establishment.
2. The following personal information concerning the applicant:
a. Full complete name, and all aliases used by the applicant, along with complete residence
address and telephone;
8
b. All previous residential addresses for eight years immediately preceding the present
address of the applicant;
c. Acceptable written proof that the applicant is at least eighteen (18) years of age;
d. Height, weight, color of hair and eyes, and sex;
e. Two front faced portrait photographs at least two inches by two inches in size;
f. The business, occupation, and employment history of the applicant for the eight years
immediately preceding the date of the application;
g. The complete permit history of the applicant and whether such person has ever had any
license or permit issued by any agency, board, city, or other jurisdiction denied, revoked,
suspended, or refused to be renewed and the reasons therefore.
3. All criminal convictions, including pleas of polo contendere, within the last ten years,
including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding
minor traffic violations, and the date and place of each such conviction and reason therefor.
4. A complete set of fingerprints taken in a manner approved by the Police Chief.
5. Such other information and identification as the Director may require in order to discover
the truth of the matters herein specified and as required to be set forth in the application.
6. Authorization for the City, its agents and employees to seek verification of the
information contained in the application.
7. A statement in writing, and dated, by the applicant that he or she certifies under penalty
of perjury that all information contained in the application is true and correct.
8. If during the term of a permit, a permit holder has any change in information submitted
on the original or renewal application, the permit holder shall notify the Police Department of
such change within ten business days thereafter, in writing.
B. Each applicant must furnish the following information:
1. An original or certified copy of a diploma or certificate and certified transcript of
graduation for completion of one thousand (1000) hours of instruction from an approved or
recognized school of massage, wherein the method, practice, profession, theory, ethics,
anatomical and physiological knowledge and practice of a massage technician is taught by state
certified instructors. The applicant must also supply a course description, an outline of material
covered, and a letter to the city from the school administrator verifying completion.
a. The Director may consider an applicant's study of massage completed outside the
state if proof of completion from a formalized course of study in massage practice,
anatomy, and/or physiology is provided with the application. Proof of completion
includes dates of study and the name, address, and phone number of the school attended.
b. Any outside course of study submitted for approval meets the state of California's
Office of Post-Secondary Education's minimum requirements and be for completion of
one thousand (1000) hours of on-premises training.
2. Certification that within one year preceding the application, the applicant has taken and
obtained a passing score on the test prescribed by the Director in accordance with this Chapter.
a. The Director shall require one of the following eligible testing procedures to be
applied to all applicants filing applications for massage technician licenses. In the event
9
the Director is apprised of facts indicating that a testing procedure is impractical for the
city to verify or to administer, then the Director may prescribe that the other eligible
testing procedure shall apply to all applicants filing applications for massage technician
licenses from and after the date of the Director's determination. The eligible testing
procedures that may be prescribed by the Director are:
i. That all applicants take and pass the then current NCE as developed,
administered, and verified by the NCBTMB; or
ii. That all applicants take and pass the then current "City Standardized
Massage Technician/Practitioner Test" ("city test"). The city test is a written
examination testing the applicant's knowledge of the basic subject matter, skills,
and abilities needed to perform safe and therapeutic massage. The city test is
developed by the Director, who may rely upon tests developed and administered
by other state and local organizations. The city test is administered by the Director
under conditions adequate to ensure the security and accuracy of the testing
procedure. Each city test is designated with a separate identification number for
tracking purposes. Applicants are required to answer seventy (70) percent of the
questions on the city test correctly in order to pass the test. The score is calculated
based on individual test results and is not dependent upon the performance of a
group of test takers (i.e., is not graded on a "Bell curve"). The City Council may,
by resolution, set and charge a fee for taking the city test. An applicant who fails
to pass the city test is not eligible to take the city test until thirty (30) days after
the previous city test. An applicant who fails to pass upon a second attempt is not
again eligible until six months thereafter. An additional processing fee may be
required to be filed with the Director prior to taking each city test. The city test
will be in English. In the event the applicant does not read and write English
sufficient to take and pass the city test, it is the responsibility of the applicant to,
at their own expense, make arrangements with aCourt-certified interpreter to
interpret the examination. Proof of Court certification must be provided to the city
prior to the administration of the examination.
b. If the testing procedure prescribed by the Director is the NCE administered by the
NCBTMB, then the applicant shall satisfy this subdivision by causing the NCBTMB to
mail, directly to the city, a certificate indicating the applicant has taken the NCE and that
the applicant obtained the score on that NCE required by NCBTMB to pass that NCE. If
the testing procedure prescribed by the Director is the city test, then the applicant shall
state the date upon which the city test was taken and the identification number provided
on the test, so that the Director can verify the taking and passing of the test.
c. Exception. A massage technician is exempt from the testing requirements set forth
in Section 4-28.070(B)(2) if he or she has satisfied both of the following requirements:
i. The massage technician has received at least thirty-two (32) hours of
specialized instruction and training in prenatal and perinatal massage therapy from
Body Therapy Associates or Bodywork for the Childbearing Year, or another
institution approved by the Director; and
ii. The massage technician is currently employed by a licensed massage
establishment/operator that provides prenatal and perinatal massage therapy
services to at least fifty (50) percent of its clientele.
3623.03 Massage technician permit issuance and denial.
Upon receipt of a complete application for a permit, the Director shall conduct an investigation in
order to ascertain whether such permit should be issued as requested. The Director shall shall approve,
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conditionally approve, or deny the application within thirty (30) days of the filing complete application.
The thirty day period may be extended for up to thirty (30) additional days by the Director to complete
the review process. The Director shall issue such permit as requested unless any of the following
findings are made:
1. The applicant has within eight years preceding the date of the application been convicted
of any of the following:
a. A violation of Penal Code Sections 266(h), 266(1), 314, 315, 316, 318, subsections
(a) or (b) of Penal Code Section 647 or that the applicant is required to register under the
provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty
or polo contendre to a charge of a violation of California Penal Code Section 415 or any
lesser included or lesser related offense, in satisfaction of or as a substitute for, any of the
previously listed crimes;
b. A violation of Health and Safety Code Section 11550 or any offense involving the
illegal sale, distribution or possession of a controlled substance specified in Health and
Safety Code Sections 11054, 11055, 11056, 11057 or 11058; or
c. Any offense in any other state which is the equivalent of any of the above-
mentioned offenses in subsections (A)(1)(a) or (A)(1)(b) of this section.
2. The applicant has engaged in conduct in another jurisdiction which, if it had occurred
within the city, would constitute grounds for denial, suspension, or revocation of the massage
technician permit under this chapter.
3. The applicant has been convicted of an act involving dishonesty, fraud, deceit or an act of
violence, which act or acts are substantially related to the qualifications, functions, or duties of a
massage technician.
4. The applicant has had a massage establishment permit or massage technician permit or
other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by
a licensing authority or by any city, county or state within eight years prior to the date of the
application.
5. The applicant has knowingly made a false, misleading, or fraudulent statement or
omission of fact to the city in the permit application process.
6. The applicant has not complied with Section 3623.02-B of this Part.
7. The application does not contain the information required by Section 3623.02-Aof this
Part.
8. If the application is denied for failure to comply with subsections A-5 or A-7 of this
section, the applicant may not reapply for a period of one year from the date the application was
denied.
9. The applicant has violated a provision of Business and Professions Code sections 4600-
4613.
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3623.04 Massage technician operating requirements.
Any person performing massage therapy under a technician permit or MTO certificate ("the
permittee") shall comply with the following conditions:
1. Except to the extent required, in writing, by a state licensed medical practitioner, no
permittee shall massage the genital, buttock, or anal area of any patron or the breast(s) of any
female patron. No permittee, while performing any task or service associated with the massage
business, shall be present in any room with another person unless the person's genitals, buttock,
anus, or, in the case of female, her breast(s), are fully covered.
2. No permittee shall massage any patron unless the person's genitals, buttocks, anus, and in
the case of a female, her breast(s), are fully covered at all times.
3. The permittee shall have their massage technician permit or MTO certificate on their
person at all times when present in the massage establishment. Such identification shall be
provided to city regulatory officials upon demand.
4. No permittee shall perform any massage at any location other than the location specified
on the permit.
5. While on duty, no permittee shall use any name other than that specified on the permit.
6. Each permittee shall be fully clothed at all times. Clothing shall be of a fully opaque, non-
transparent material and provide the complete covering from mid-thigh to three inches below the
collar bone
3624 Change of Ownership
A. A massage establishment operator shall report to the Director within ten (10) days any and all
changes of ownership or management of the massage establishment, including, but not limited to,
changes of manager or other person principally in charge, stockholders holding more than five (5)
percent of the stock of the corporation, officers, directors, and partners in any and all changes of name,
style, or designation under which the business is to be conducted, and all changes of address or
telephone numbers of the massage business. A change of location of any premises may be approved by
the Director, provided there is compliance with all applicable regulations of the City..
B. No massage establishment permit may be sold, transferred, or assigned by a permittee, or by
operation of law, to any other person or persons. Any such sale, transfer, or assignment, or attempted
sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit and such
permit shall thereafter be null and void; provided ~d excepting, however, that if the permittee is a
partnership and one or more of the partners should die, one or more of the surviving partners may
acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a
surrender or termination of such permit, and in such case, the permit, upon notification to the Director,
shall be placed in the name of the surviving partners. A massage establishment permit issued to a
corporation shall be deemed terminated and void when either any outstanding stock of the corporation is
sold, transferred, assigned after the issuance of a permit, or any stock authorized but not issued at the
time of the granting of a permit is thereafter issued or sold; transferred, or assigned. No massage
technician permit may be sold, transferred, or assigned by a permittee, or any operation of law, to any
other person or persons.
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3625 Exemption
A. This Part does not apply to cosmetologists, barbers, or to persons licensed to practice any healing
art pursuant to Business and Professions Code, Division 2, section 500 et seq., or the Chiropractic Act
(collectively, "Healing Arts Practitioner"), when performing massage within the scope of his or her
license. Such Healing Arts Practitioners shall be required to obtain a massage operator permit if their
employees are proposed to engage in massage.
B. Notwithstanding any other provision of law, this part applies to an employee of any person
described in subsection a if the employee is engaged in, or is purported to be engaged in, the business of
massage, and is located on the premises of a person described in subsection A.
C. This Part does not apply to City permitted massage technicians who perform chair massage on
fully clothed persons at public places.
3626 Inspection by Officials.
Any and all investigating officials of the City shall have the right to enter establishments from
time to time during regular business hours to make reasonable inspections and to observe and enforce
compliance with building, fire, electrical, plumbing, or health regulations, and to ascertain whether there
is compliance with the provisions of this Part.
SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any
reason held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this ordinance. The City Council
hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or
portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses,
phrases, or portions be declared invalid or unconstitutional.
SECTION 4. The City Council hereby finds, determines, and declares that this interim urgency
ordinance adopted pursuant to California Government Code Section 65858 is necessary because:
A. The City is authorized by Government Code Section 51031 to regulate massage establishments;
however, the state legislature recently adopted SB 731 (Chapter 384, 2008 Statutes), Business and
Professions Code sections 4600 et seq., which calls for the establishment of statewide standards and
licensing procedures for persons engaging in massage therapy.
B. SB 731 establishes anon-profit entity referred to in SB 731as the "Massage Therapy
Organization" and recently renamed as the "Massage Therapy Council" ("the MTC") with authority to
license individuals on a voluntary basis statewide to perform massage service. The MTC, beginning not
sooner than September 1, 2009 may begin issuing massage practitioner and therapist certificates to
qualified individuals. Accordingly, after September 1, 2009, any MTC certificated individual shall be
exempt from massage technician licensing and testing requirements under law.
C. Pursuant to Business and Professions Code Section 4612(a)(3), municipalities are authorized to
enact licensing requirements for massage establishments consistent with the provisions of SB 731;
however, the MTC is still the process of preparing final regulations and requirements, including
adoption of standards for issuance of certificates to massage therapists and related criteria and practices.
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D. This interim ordinance will ensure that the City has adopted an ordinance that reasonably
implements the provisions of SB 731 while City staff reviews and considers future promulgations and
regulations from the state and the MTC while maintaining the current provisions of the Tustin City Code
that promote the discouragement of massage establishments from degenerating into houses of
prostitution
SECTION 5. Ten days prior to the expiration of this interim urgency ordinance, and any
extension thereof, the City Council shall issue a written report describing the measures which the City
has taken to address the conditions which led to the adoption of this ordinance or any extension.
SECTION 6. This interim urgency ordinance shall take effect immediately upon its adoption by
a four-fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for
forty-five (45) days from the date of its adoption and shall thereafter be of no further force and effect
unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the
City Council extends this interim urgency ordinance for an additional period of time pursuant to
California Government Code Section 65858.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this
day of 2009.
DOUG DAVERT, MAYOR
ATTEST:
PAMELA STOKER, CITY CLERK
APPROVED AS TO FORM:
DOUGLAS HOLLAND, CITY ATTORNEY
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