HomeMy WebLinkAbout01 INTERIM URG ORD 1371 - MASSAGE PARLORS 09-15-09Agenda Item ~
• Reviewed:
AGENDA REPORT City Manager
Finance Director N/A
MEETING DATE: SEPTEMBER 15, 2009
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: INTERIM URGENCY ORDINANCE NO. 1371 -
Massage Establishments and Therapists
SUMMARY
Ordinance No. 1371 is an interim urgency measure that would extend the effective term
of Interim Urgency Ordinance No. 1368. Ordinance No. 1368 was approved by the
Council on August 4, 2009 to implement regulations on the establishment and operation
of massage businesses and massage therapists for a period of 45 days. Pursuant to
Government Code Section 65858, that urgency measure may now be extended for a
period of ten months and fifteen days (thus, the effective period, if approved, would be
one year).
Prior to the adoption of Ordinance No. 1368, the Tustin City Code required massage
businesses to obtain a Conditional Use Permit and all massage businesses to comply
with the City's Personal Services regulations. However, 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 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. 1371 by at least afour-fifths vote.
(Attachment 4.)
FISCAL IMPACT:
Urgency Ordinance No. 1371 is aCity-initiated project. There is no direct fiscal impact
associated with the proposed Ordinance.
City Council Report
September 15, 2009
Interim Urgency Ordinance No. 1371
Page 2
ENVIRONMENTAL:
Interim Urgency Ordinance No. 1371 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, and it prevents changes in the environment
pending the completion of the written report described above.
BACKGROUND AND DISCUSSION:
The Tustin City Code currently requires massage businesses to obtain a Conditional
Use Permit (CUP) and all massage businesses are required to comply with the
Personal Services regulations contained in the City Code (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:
o 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;
o 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
o 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 MTC, beginning on September 1, 2009, was authorized to begin issuing massage
practitioner and therapist certificates to qualified individuals and after September 1,
2009, any MTC certificated individual shall be exempt from City 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.
City Council Report
September 15, 2009
Interim Urgency Ordinance No. 1371
Page 3
The City Attorney determined the need for and prepared proposed Urgency Ordinance
No. 1368 (Attachment 3) to address these issues on a temporary basis. Adoption of
Urgency Ordinance No. 1368 established interim regulations on the establishment and
operation of massage and massage therapists, but did so for only 45 days. Extension
of the urgency measure as permitted by State law is necessary to ensure these
requirements will remain in effect to protect health, safety, and welfare.
By extending Ordinance No. 1368, Ordinance No. 1371 will continue the regulations in
Ordinance No. 1368 to 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 the extension are contained within Urgency
Ordinance No. 1371 (Attachment 4.)
~ ~
Elizabeth A Binsac
Director of Commune y Development
Attachments:
1. Tustin City Code Section 3621 et seq.
2. Senate Bill (SB) 731
3. Urgency Ordinance No. 1368 (as approved)
4. Urgency Ordinance No. 1371
S:\Cdd\CCREPORT1lnterim Urgency Ordinance Extension 1371 Massage Establishments.doc
ATTACHMENT
TUSTIN CITY CODE SECTION 3621 et seq.
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 operetor permits and massage technician permits shall be valid for a
maximum of one (1) year. Each massage technician and massage operator shah renew the permit
annualy.
(Ord. No. 1252, Sec. II, 6-3-02)
3622 PREREQUISITES FOR MASSAGE OPERATOR PERMIT
No person shah be eligible to receive a massage operator permit urrtN such person has obtained
a valid conditional use permit for a massage establishment pursuant to Tustin City Code Sectlons 9232,
9233, 9234, or 9235. A Healing Arts Practitioner, as defined in Secdon 3628(a), shall not be required to
obtain a conditlonal use permit b 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 shah
contain or be accompanied by the folbwing:
(1) informatbn regarding the type of ownership of the business, i.e:, whether by
individual, partnership, corporatbn, or otherwise. If the applicant ~ a corporation, the
name of the corporation shah be set forth exactly as shown in its artldes 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 stoddwlder holding
more than five (5) percerrt of the stock of that oorpon3tion. ff the applicant is a
partnership. the applk~tbn shall set forth the name and residence of each of the
partners, including limited partners. N R is a limited partnership, it shah furnish a copy of
its certificate of Umited partnership filed with the Secretary of State. H one (1) or moro of
the partners is a corporation. the provision of this subsection pertaining b corporations
shall apply. The applicant corporation or partnership shad designate one of its officers or
general partners to ad as its responsible managing officer. Such designated persons
shall complete and sign afi applk;atlon forms r+equir~ed 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 pn~posed
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 ad as the represertfatlve and agent of the
operator in managing day-today operations with the same liabilities and responsibilitles
or who acts with evidence of managemenrt. Evidence of management inductee, but is not
limited to, evidence that the individual has the power to direct or hire and dismiss
employees, control hours of operation, create pdicy or rules, or purchase supplies. A
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CHAPTER 6 PERSONAL SERVICES
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manager may also be an owner. A manager must meet the standards and qualiflcatbns
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 Califomla, which is owned or operathd by the
appUcant.
(6) The following personal information concerning the applicant:
(a) Futl 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 applicanCs 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 photogrephs at least two (2) inches by two
(2) Inches in size.
(f) The applicant's complete business, occupation, and empbyment history for
eight (8) years preceding the date of appik~tion:
(g) The complete massage permit history of the app8cant; whether such person
has ever had any permit or tlcense 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 H a vocational
professional license or permit was denied. revoked, or suspended; and the
reason therefor,
(h) All criminal convictions, irrduding pleas of polo contendere, within the last
five (5) years, including those dismissed or expunged punsuant to Penal Code
Sectkxt 1203.4, but excluding minor tnRllc violatbns, and the date and place of
each such conviction and reason therefor, and,
A complete set of flngerprints taken by the Police !)apartment
(7) The name and address of the owner and lessor of the real property upon or in which
the business is to be conduc6ed. If the applk;ant is not the legal owner of the property,
the applk~tbn must be accompanied by a copy of the lease and a notarized
acknowledgment from the owner of the property that a massage estabNshment wfN be
located on his/her property.
(8) Authorizatbn for the City, its agents and employees to seek verrfication of the
infonnatkxr contained in the application.
(Orr!. No. 1252, Sec. ll, 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 medk~l practitloner, no massage technician, massage
technician aide, or employee shah 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 alkriv 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 genitab. buttocks, anus, or, in the case of female, her breasts, are fully covered.
No person, operabr or massage technician grartted a permit pursuant to this Article 3 shall use
arty name or conduct business under any designation not specfied in his/her permit.
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CHAPTER 6 PERSONAL SERVICES Page 3 of 8
All massage establishments shall have a manager on the premises at aM 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 operators absence, shau 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 technidan 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 technidan is displayed in a conspicx~ous public place in the lobby and that each massage
technician is wearing or has his/her massage thcttnidan permit on hiaJher person at ati times when in
the massage establishment. Such identification shall be provided to City offdals upon demand.
An operator and/or on-duty manager shall be responsible for the conduct of ell employees while
the employees are on the licensed premises. Any ad or omission of any employee r~rtsti4rting a
violatbn of the provisions of this ordinance shall be deemed the ad or omission of the operator for
purposes of determining whether the operabrs license shall be revoked. suspended. denied, or
renewed.
No operator or manager shall employ any person as a massage 1,edtnidan who does not have a
valid massage technician permit issued pursuant to this Amide 3. Every operatior or manager shall
report to the Director any change of empbyees, whether by new or renewed empbyment, discharge, or
termtnatlon, 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 tem~fnation. The report shall be made within five (5) days of the
hire or tertninatbn. The operator or designee shah deliver the permit and photo identlflcation cant of
any massage technk~an no longer employed by the operator to the Director within five (5) days of
terminatbn of employment.
All persons employed in the massage establ~hment shah be fully clothed. Clothing shall be of a
fully opaque material and shall provide complete covering from mid-thigh to three (3) inches bekyw 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, bkth date, sex, height,
weight, color of hair and eyes, phone numbers, sodal security number, date of employment and
terrninatbn, ff any, and duties of each employee. The above informaton on each empkoyee shah be
malrrtalned 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 availat~le immediately for
inspec.`tion by pdke upon demand of a representative of the polkre department at all reasonable times.
A permittee shall comply with all provisions of this Chapter and any applicable provisbn of the
Tustin Munk;ipai Code.
The massage technician shah have his/her massage technk~an perrnk on his/her person at all
times when present in the massage establfshmerrt. Such identlflcation shall be provided to City officials
upon demand. Massage technidans shati not perform any massage at any location other than the
locatbn specified on the permit. While on duty, the massage technician shah not use arty name other
than that specified on the permit.
(Ord. No. 1252, Sec. II, 6-3-02)
3625 APPLICATION REQUIREMENTS FOR MASSAGE TECHNICU-N PERMIT
In addition to the information requested on the application form, first-time applicants and
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CHAPTER 6 PERSONAL SERVICES
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renewal applicants shah provide the folbwing information abng with the application form:
(1) A statement of the axed locatbn at which the applicant wiq be working as a
massage tedtnidan, including the full street address and aN telephone numbers
associated with said locatbn, and the name and address of the massage establishment.
(2) The folbwing personal infortnatbn concerning the applicarrt:
(a) Full complete name and all aliases used by the applk:arrt, abng 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) fir+ont faced portrait color photographs at least two (2) inches by two
(2) inches in size;
(f) The business, occupatbn, and employment history of the applicant for eight
(8) years immediately preceding the date of the applicatbn; 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
jurisdictbn denied, revoked, or suspended and the reasons therefore.
(3) Criminal convictions, indudbg pleas of nolo corrtendere, 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 Departmerrt.
(5) Such other informatbn and identification as the Chief of Pdbe may require to
discover the truth of the matters herein specified and as required to be set forth in the
application.
(8) Authorization for the City, its agents, and empbyees to seek veriflcatbn of the
information contained In the applbatbn.
(7) A statement in wrung, and dated, by the applkstnt that he or she certifies under
penalty of perjury that all information oontalned in the applicatbn is true and wrrect.
(8) If during the term of a permit, a permit holder has arty change in information
submitted on the original or renewal applicatbn, the permit holder shall notify the
Director in writing of such d~ange within ten (10) business days thereafter.
(9) Each applicant must famish the following Informatbn:
(a) An original or certified copy of a dipbma or certificate and certified transcript
of graduatkxr evidendng cornpletbn of one thousand G1,000) hours in a
progressive course of instruction from a recognized school of massage, wherein
the method, practice, professbn, theory, ethics, anatomical, and physiological
knowledge and practice of a massage technician is taught by State certified
instructors. A recognized sdoa of massage means any school or institution of
leambg which teaches, through State certified instructors, the theory, ethics,
practice, profession, or work of massage, which school or institutbn complies
with the California Education Code, including but not limited b section 94900,
94905, or 94915, and which requires a resident course of study before the
student shall be famished with a diploma or certificate of graduatbn. Schools
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offering a correspondence course not requiring actual physical attendance shah
not be deemed a recognized sd,oa. Duplicate r~urses shay not be accepted.
The applicant must also supply a course descxiptkm, an outline of material
covered, and a letter to the City from the sd~ool administrator verifying
completlon. The Director may consider an applicanCs study of massage
completed outside the State of California if pr+o~ of oompietlon from a formalized
and progressive course of study in massage practlce, anatomy, and/or
physiology is provided with the applicatlon. Proof of completion shall indude
dabs of study and the name, address, and telephone number of the sdtool
attended. Any outside course of study submitted for approval shall meet the
Stab of California's Office of Post-Secondary Educatbn's minimum requirements
and be for completlon 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 Dired~or shah require one (1) of the following eligible testing
procedures b be applied to all appNcarrts for massage technidan
licenses. In the event the Dir+ectsor is apprised of fads Mdlcating that a
testing procedure ~ impractical for the CNy to verify or to administer, then
the Director may prescribe that the other eligible testkp procedure shall
apply to all applicants for massage technkk:ian Ik~nses from and after the
dab of the Director's determination. The eNgible testing procedures that
may be prescribed by the Dired~or are:
(a) That all applicants take and pass the then current NCE as
devebped, adminisbred, and verified by NCBTMB, or any other
massage test developed, administered, and verified by NCBTMB;
or
(b) That all applyants take and pass the then current "City
Standardized Massage Technidan/Prectltlorrer Test ("City Test").
The City Test shall be a written examination testlng the applicanCs
knowledge of the basic subject matter, skills, and abilitles needed
to perform safe and therapeutic massage. The City Test shall be
devebped by the Director, who may rely upon tests developed
and administered by other stab and local organizations. The City
Test shah be adminisbred by the- Dinactor under conditions
adequate to ensure the security and accuracy of the bstlng
procedure. Each City Test shah be designated with a separete
identlficatlon number for tracking purposes. Applicants shall be
required to answer seventy (70) percent of the questbns on the
City Test correctly in order to pass the CNy Test. The score shalt
be calculated based on individual test results and shah not be
dependent upon the performance of a group of test takers (i.e.. is
not graded on a "Bell Curve"). The City Coundl may, by
resolution, set and charge a fee for taking the City Test. An
applksint who fails to pass the City Test shah not be eligible to
take the City Test urnN thirty (30) days after the previous CRy Test..
An applcant who fails to pass upon a second attempt shah not
again be eligible until six (6) months thereafter. An additbnal
processing fee may be required to be filed with the Director prior
to taking each CNy Test. The City Test wiN be in English. In the
event the applicant does not read and write English suiticient to
take and pass the City Test. it shah be the responsibility of the
applicant to, at their own expense, make arrangements with a
Court-certified inbrpreter b interpret the examinatbn. Proof of
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Court certiflcretion must be provided b the City prior b the
administration of the examinatbn.
(ii) If the testing procedure prescribed by the Director is the NCE
administered by the NCBTMB, then the applicant shah satisfy this
subsectbn by causing the NCBTMB to maN, directly b the City. a
certificate indicating the applicant has taken the NCE and that the
appl~ant obtained the score on that NCE required by NCBTMB b pass
that NCE. ff 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 identiflcatiort 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 b year basis provided that the pernittees meet the requirements set
out In this Sectbn 3825.
(a) Each massage technician whose permit expires between
December 8, 2004, and AprN 4, 2005, must comply with section
3625(9) by AprN 4, 2005, and his or her massage technician's
permit is hereby extended until AprN 4, 2005, if necessary. If said
massage technician does not comply with sectors 3625(9) by AprN
4, 2005, then his or her massage technidan's permit expires, and
he or she must satisfy section 3625's requirements for a new
pemtit.
(b) Each massage technician whose massage technician permit
expires after AprN 4. 2005, must comply with sectbn 3625(9) b
renew his or her massage technician permit.
(c) Each first-time or renewal applir~nt for a massage technician
permit who has prevbusly taken and passed the NCE as
developed, admMistened, and verified by NCBTMB is not required
b take and pass the NCE a second time. Each applicant for a
massage technk:ian permit who has taken and passed the NCE
must comply with 3ectbn 3825(9xbxii).
(Ord. No. 1252, Sec. 11, 6-3-02; Ord. No. 1289, Sec. 5. 1-3-05)
Editors nob: Sectbn 9 of Ord. No. 1289 provided the requirements of amended Sectbn 3625(9)
shall apply to arty applk:ant for a massage technician permit who has not been Issued a permit as of the
time this Ordinance was conskiered by the Planning Commission.
3626 MASSAGE ESTABLISHMENT REGULATION8
No massage operator permit shah be issued uMess an inspection by the City of Tustin reveals
that the massage establishment complies with each of the fdk~wing regulatbns:
(1) A recognizable and readable sign shall be posted at the main entrance, identifying
the establishment as a massage estabtlshmerrt, provided that all such signs shall comply
with the Tustin Sign Code.
(2) Minimum lightlng shall be provided in acxordance with the Uniform Building Code.
In additbn, a light level of no less than fnre (5) foot candles shah be mair~ined in public
rooms, walkways, and at any point within each room or enclosure where massage
services are performed, at aN times such services are being provided.
(3) Minimum ventNation shah 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 ads of massage shall be provided which are approved by the department or agency
designated by the City Manager to make inspectlona for compNanue with health
standards.
(5) Pads used on massage tables shall be covered in a workmanlike manPer 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 any one time, such persons of the same sex may be placed
in a single separate room or the massage operator may elect >b place such persons of
the same sex in separate enclosed norms or booths having adequate ventilation to an
area outside said room or booth while massage servicres are being performed.
(7) Adequath bathing, dressing, locker, and toilet facNitles shah bs provided for patrons,
except that dressing and locker facilities shah not be required if all patrons remaM fully
clothed while in the massage establishment, and bathing facilities shall be required ony
when the massage establishment provides steam rooms or sauna baths. If applicable, a
minimum of one thb or shower, one dressing room containing a separate kx~cer for each
patron th 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
estabNshment, provided, however, that if male and femab patrons are to be served
simultaneously at the establishmenrt, 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 th 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 th aN wash basins,
bathtubs, showero, and similar equipment. Each wash basin shall be provided with soap
or detergent and sanitary towels placed in pernanenthr installed dispensers. A trash
receptacle shah 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 dean
and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or
vapor cabinets, shower compartments. and toilet rooms shah be thoroughly cleaned
each day the business is in operatbn. Bathtubs shall be thorarghly cleaned after each
use.
(9) Clean and sanitary towels and Nnens shah be provided for each patron of the
establishment or each patron receiving massage servk;es. No common use of towels or
linens shall be permitted. Towels, sheets, and linens shah be provided in suffident
quantity and shah not tie used by more than one (1) person unless they have been first
relaundered. Separate dosed cabinets or containers shall be provided for the storage of
dean and solved linen and shall be plalny marked: "dean linen,' "soiled Itnen
(10) A minimum of one separate wash basin shah 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 wathr at all times, and shall be
located within or as dose as practlcabie to the area devoted to the performing of
massage servkx~s. In addition, there shall be provided at each wash basin sanitary
towels placs~d in permanently installed dispensers.
(Ord. No. 1252, Sec. II, 6-3-02)
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CHAP'T'ER 6 PERSONAL SERVICES Page 8 of 8
3627 CHANGE 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 establishmenrt, including, but not limited to,
changes of manager or other pennon 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 designatbn under which the business is to be wnducted, and aN 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 assignmenrt, or attempted
sale, transfer, or assignment shah be deemed b constitute a voluntary surrender of such permit and
such permit shah thereafter be null and void; provided and excepting, however, that if the permiltee is a
partnership and one or more of the partners should die, ons or more of the surviving partners may
acquire, by pur+chaae or otherwise. the interest of the deceased partner or Partners without effecting a
surrender or terninatlon of such permit, and in such case, the permit, upon notification th 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 corporator
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)
362a EXEMPTION
(a) This part does not apply to cosmetologists, barbers, or to persons licensed to practice any
healing art punwant to Business and Professbns Code, Division 2, section 500 et seq., or the
Chiropractic Act (collectively, "Healing Arts Preditioner"), when performing massage within the
scope of his or her license. Such Healing Art Practitioners shah be required to obtain a
massage operator pernfi if their employees are proposed m engage in massage.
(b) Noiwilhstanding any other provision of law. this part applies to an employee of any person
described in subsectlon a if the empbyee is engaged in, or 1s purported to be engaged in, the
twsiness of massage, and b located on the premises of a person described in subsection a.
(c) This part does not apply !n CHy 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)
httpJ/hlnaryl.mumcode.com/minutes/DocView/11307/1/22?hilito--massage;msssages; 11/Z4/2008
ATTACHMENT 2
SENATE BILL (SB) 731
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BILL NUMBER: SB 731 CHAPTBRBD 09/27/08
CHAPTER 384
FILED WITH SSCRBTARY OF STATB SEPTEMBER 27, 2008
APPROVED BY GOVERNOR SEPTfi~BSR 27, 2008
PASSED TH8 SENATE AUGUST 19, 1008
PASSED THB ASSEMBLY AUGUST 13, 1008
AMENDED IN ASSEMBLY AUGUST 8, 1008
AMBNDBD IN ASSEMBLY JULY 9, 2007
AMENDED IN ASSEMBLY JUNE 25, 2007
AMENDED IN SENATE MAY 8, 2007
AMENDED IN SENATE APRIL 26, 2007
AMENDED IN SENATE APRIL 19, 2007
AMBNDBD IN SENATE APRIL 16, 2007
INTRODUCED BY Senator Oropeza
FEBRUARY 23, 2007
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 zepresent 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, as
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.
THS PEOPLE OF TH8 STATE OF CALIFORNIA DO ENACT A3 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 se a subterfuge to violate subdivision
(a) or tb) 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) ie added to
Division 2 of the Business and Professions Code, to read:
CHAPTER 10.5. MASSA(3S 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) A for-profit institution.
(D) An institution that does not meet all o! 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 ie 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 ie 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 ie 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 ae 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 recognised 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 i.n paragraph (2) of subdivision (a) of Section 4600, by a
college or university of the state higher education system ae 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 sEatue 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 i 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 tha requirement• 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.
(21 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 pursuant.to this
chapter.
(c) In order to obtain certification as a massage therapist, as
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 ie 18 years of age or older.
(2) The applicant satisfies at least one of the following
requirements:
(A) He or she hoe 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 Eras 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 fray approved
schools.
(8) 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 organisation a written
application provided by the organization, showing to the satisfaction
of the organization that he or she meets all of the requiremonts 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 unleBS 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 moat the requiremonts
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.
9601.3. (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 organisation 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 Departmont 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) This 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. la) The organization may discipline a certificate holder by
any, or a combination, of the following methods:
(i) 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, ae authorized by this
chapter or its bylaws, deems proper.
(b) The organization may issue an initial cettificate 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 as 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 rewcation. 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 unles^ 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 statue 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 ie 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 ae 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 ar allowing an uncertified person to use a certificate.
(g) Committing any fraudulent, dishonest, or corrupt act that is
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 procedube 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 less 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 organisation of hie or her home address, as well as the
addree^ of any business establishment where he or she regularly
works ae a massage therapist or massage practitioner, whether as an
employee or ae an independent contractor. A certificate holder shall
notify the organization within 30 days of changing either hie 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, as 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 ie 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 ae 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 eetablished 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 ae 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 eetabliehmente.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~maseage 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 persons 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 licensiag fee sufficient to
cover the costa of the business licensing activities eetablished 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
businesses, nor shall building or facility requirements be adopted
that (A) require unlocked doors when there ie no staff available to
assure security for clients and massage staff who are behind cloned
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 se 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 business license to operate a
massage business or eatabliahment 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 establishment
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 establishment
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.
(Z) 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 1.1 (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 i, 2016, deletes or extends
that date.
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ATTACHMENT 3
URGENCY ORDINANCE NO. 1368
(AS APPROVED)
ORDINANCE NO. 1368
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. (4/5ths
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
,r 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 to 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 a not-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
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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 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 conduct 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.
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 polo 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.
4
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 Director 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 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.
f. 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:
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 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 pertormed.
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
h -.
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
6
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 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
7
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. 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 fora 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 shalt 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;
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 nolo 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.
9
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 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
10
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(6)(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, 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(i), 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 nolo confendre to a charge of a violation
11
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.
12
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 al
opaque, non-transparent material and provide the
three inches below the collar bone
3624 Change of Ownership
I times. Clothing shall be of a fully
complete covering from mid-thigh to
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,
13
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.
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 731 as 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
..
14
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.
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 Govemment Code Section 65858.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this
4"' day of August, 2009.
ATTEST:
PAM STOKER, LERK
APPROVED AS TO FORM:
DOUGLAS HOLLAND, CITY A TORNEY
15
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of the City of
Tustin is 5; that the above and foregoing Ordinance No. 1368 was duly and regularly introduced and
adopted at a regular meeting of the Tustin City Council, held on the 4`h day of August, 2009 by the
following vote:
COUNCILMEMBER AYES: Davert, Amante, Gavello, Nielsen, Palmer (5)
COUNCILMEMBER NOES: None (0)
COUNCILMEMBER ABSTAINED: None (0)
COUNCII_MEMBER ABSENT: None (0)
P ELA STOKE
CITY CLERK
16
ATTACHMENT 4
URGENCY ORDINANCE NO. 1371
ORDINANCE NO. 1371
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF TUSTIN, CALIFORNIA, EXTENDING FOR A PERIOD OF TEN
MONTHS AND FIFTEEN DAYS THE EFFECTIVENESS OF INTERIM
URGENCY ORDINANCE NO. 1368 AMENDING PART 2 OF CHAPTER 6
OF THE TUSTIN CITY CODE, RELATING TO REGULATION OF
MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS
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.
(4/5ths 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 and is for the immediate preservation of the
public health, safety, and welfare.
SECTION 2. Interim Urgency Ordinance No. 1368 relating to the regulation of
massage establishments is hereby extended for an additional period of ten (10) months
and fifteen (15) days.
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 731 as 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,
was authorized to begin issuing massage practitioner and therapist certificates to
qualified individuals. Accordingly, after September 1, 2009, any MTC certificated
651206.2
Ordinance No. 1371
Page 2
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.
D. This interim ordinance extending Interim Urgency Ordinance 1368
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 have the effect of extending the effective date of Ordinance No. 1368 for
ten (10) months and fifteen (15) days 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 15t" day of September, 2009.
DOUG DAVERT, MAYOR
PAMELA STOKER, CITY CLERK
APPROVED AS TO FORM:
DOUGLAS HOLLAND, CITY ATTORNEY
Ordinance No. 1371
Page 3
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1371
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is five (5); that the above and foregoing Ordinance No.
1371 was duly and re~qularly introduced and adopted at a regular meeting of the City
Council held on the 15t day of September, 2009 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
PAMELA STOKER
CITY CLERK