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HomeMy WebLinkAbout2012-09-04 Ordinance 5161Ordinance No. 5161 Ordinance of the Council of the City of Palo Alto Amending Section 4.54 of the Palo Alto Municipal Code (Massage Establishments) to Implement Standardized Qualifications for Massage Establishments in the City of Palo Alto The Council of the City of Palo Alto ORDAINS as follows: SECTION 1. 4.54.010 Purpose and intent. It is the purpose and intent of this chapter to provide for the orderly regulation of massage establishments and massage technicians, as defined in this chapter, in the interests of the public health, safety, and welfare by providing certain minimum building, sanitation and health standards for massage establishments, and by providing certain minimum qualifications for the operators of massage establishments and for massage technicians and massage technician trainees. Unless otherwise indicated, the requirements of this Code shall not apply to massage practitioners and therapists certified by the California Massage Therapy Council (CAMTC) or establishments in which all practitioners are CAMTC certified. SECTION 2. 4.54.020 Definitions. (a) For the purpose of this chapter, unless the context clearly requires a different meaning, the words, terms and phrases set forth in this section shall have the meanings given them in this section: (1) "Massage" means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations. (2) "Massage technician" means any person who administers massages, baths or health treatments involving massage or baths as the principal functions to another person for any consideration whatsoever. (3) "Massage technician trainee" means a student who works in a massage establishment under the supervision and direction of a massage technician who has received a permit issued under the provisions of this chapter. (4) "Massage establishment" means any establishment with more than one massage technician having a fixed place of business where any, firm, association, partnership, corporation, joint venture or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted orcarried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. 1 130220 dm 0120542 (5) "Sole Proprietor Massage establishment" means any owner-operated establishment having a fixed place of business where an individual, carries on or permits to be engaged in, conducted or carried on massages, baths or health treatments involving massage or baths asthe principal functions. (6) "Recognized school of massage" means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage. The student shall possess a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which school has been approved pursuant to California Education Code Section 29025, or, if said school is not located in California, has complied with standards commensurate with those required in said Section 29025. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class, or courses of a massage technician not approved by the California State Department of Education shall not be deemed a "recognized school of massage." (7) "Reflexology" Reflexology is the application of specific pressure by the use of the practitioner's hands, thumb, and fingers to reflex points in the client's hands, feet, or ears using alternating pressure, and such techniques as thumb walking, finger walking, hook and back up, and rotation on a reflex. (8) "Permit" means the permit to engage in the activities of a massage technician or a massage technici;m trainee as required by this chapter. (9) "Person" means any individual, firm, association, partnership, corporation, joint venture or combination of individuals. (10) "California Massage Therapy Council" (CAMTC) means the governing nonprofit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. {11} "Accessory Technician Permit" Atechnician who is not a sole proprietorship may be eligible to receive an accessory technician permit. This permit will allow massage to be conducted within a business that is not a massage establishment, provided the following requirements are met: a. The technician must provide the police department with sufficient evidence to demonstrate that he or she is an independent contractor or an employee of the business. b. The business is not in the regular business of providing massage. c. The technician must obtain a massage technician permit as required by section 4.54.060 of this code. (12) "Noncertified massage practitioner" A massage practitioner who performs massage in an open and common room without partitions, and the individual in receipt of the massage 2 130220 dm 0120542 remains fully clothed and does not disrobe exceptbelowthe knee. A non certified practitioner must: (1) apply for and obtain a noncertified practitioner certificate; and (2) post the noncertified practitioner certificate in a conspicuous place in such a manner that it can be easily seen by persons entering the establishment. (13) "Noncertified massage establishment permit" A massage establishment permit issued to an establishment at which all the massage practitioners are noncertified practitioners. The same requirements applicable to massage establishment permits are applicable to noncertified massage establishment permits. SECTION 3: 4.54.030 Massage establishment permit required. (a) Except as otherwise provided, it is unlawful for any person to engage in, conduct or carryon, in or upon any premises within the city the operation of massage establishment without a permit obtained from the chief of police, as required by this chapter. All requirements applicable to a massage establishment permit are applicable to a noncertified massage establishment permit. A massage establishment permit shall be issued to any person who has complied with the requirements of Sections 4.54.050 and 4.54.110 of this chapter, and all other applicable provisions ofthis code or state law, as applicable; unless grounds for denial of such permit are found to exist. In addition to those set forth in Section 4.04.140, grounds for denial include: (1) The applicant made a material misstatement in the application for a permit; (2) The applicant has, within five years immediately preceding the date of the filing of the application, been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or any violations of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), or 647(h) of the California Penal Code, or of any offense involving theft of property or violence; (3) That the operation of a massage establishment, as proposed by the applicant if permitted, would not comply with all applicable laws including, but not limited to, all city ordinances and regulations; (4) That the operation of the proposed massage establishment is likely to be injurious to the health, safety, welfare, and interest of the people of the city; (5) That the applicant is lacking in the background and qualifications to conduct a bona fide massage establishment; or (6) That the applicant has violated any provision of this chapter, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage establishments. (7) That the CAMTC has revoked, suspended, or denied the applicant a permit. II 3 130220 dm 0120542 SECTION 4: 4.54.040 Massage establishment permit application fee; renewal (a) Any application for a permit to operate a massage establishment shall be accompanied by a nonrefundable fee as set forth in the municipal fee schedule. The application fee shall be used to defray, in part, the costs of investigation and report, and is not made in lieu of any other fees or taxes required under this code. (b) A permit to operate a massage establishment shall be renewed annually. The renewal fee shall be as set forth in the municipal fee schedule. In addition, the massage technician must also submit valid identification, massage certification and a completed new permit application. SECTION 5: 4.54.050 Application for massage establishment permit. (a) Any application for a permit to operate a massage establishment shall be made } with the chief of police. Within thirty working days following receipt of a completed application and LiveScan results, the chief of police shall either issue the permit or mail a written statement of his reasons for denial thereof. The application shall set forth the exact nature of the massage bath or health treatment to be administered, the proposed place of business and facilities therefore, and the name and address of each applicant. The chief of police may request the applicant to allow fingerprints to be taken when needed for the purpose of establishing identification. In addJtion to the requirements of Chapter 4.04 and this section, any applicant shall furnish the following items: 1. The address of the proposed location 2. The previous addresses of applicant, if any, for a period of three years immediately prior to the date of the application and the dates of residence at each; 3. Written proof that the applicant is at least eighteen years of age; 4. Applicant's height, weight, color of eyes and hair; 5. Two recent passport photos 6. Business, occupation or employment history of the applicant for the three years immediately preceding the date of the application; 7. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each stockholder holding more than five percent ofthe stock ofthe corporation. Ifthe applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply; 4 130220 dm 0120542 8. The names and residence addresses of all persons clolrrently employed or intended to be employed in the massage establishment, regardless ofthe nature ofthe employment, other than any person permitted pursuant to Section 4.54.060, along with the proposed or actual nature of the work performed or to be performed, and recent passport-size photographs, suitable to the police officer or designee processing the application, of each such employee. The chief of police may require such employee to allow fingerprints to be taken for the purpose of identification. Any applicant or permitee shall notify the city in writing of the names, addresses and nature of the work, of any new employees, within five days of such employment, and supply the photographs described in this subsection. 'Such new employees shall allow fingerprints to be taken for the purpose of identification upon request. "Employee" includes every owner, partner, manager, supervisor and worker, whether paid or not, who renders personal services of any nature in the operation of a massage establishment. 9. Such other information as may be deemed necessary by the chief of police. (b) Proof of malpractice insurance coverage or equivalent with a minimum of $100,000 coverage shall be required within 30 days of permit issuance. SECTION 6: 4.54.060 Massage technician permit required. (a) It is unlawful for any person to act as a massage technician or a massage technician trainee unless such person holds a valid permit issued by the chief of police or a , certification from the CAMTC. A massage technician permit shall be issued to any person who has fulfilled the requirements of Section 4.54.080, and all other provisions of this code or state law, as applicable; unless grounds for denial of such permit are found to exist. In addition to those set forth in Section 4.04.140, grounds for denial include: (1) The applicant made a material misstatement in the application for a permit; (2) The applicant has, within five years immediately preceding the date of the filing of the application, been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or any violations of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), or 647(h) of the California Penal Code, or of any offense involving theft of property or violence; (3) That the issuance of the permit is likely to be injurious to the health, safety, welfare, and interest of the people of the city; (4) That the applicant is lacking in the background and qualifications to act as a massage technician; or (5) That the applicant has violated any provision ofthis chapter, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage establishments or massage technicians. (6) That the CAMTC has revoked, suspended, or denied the applicant a permit. 5 130220 dm 0120542 (b) A permit issued by the chief of police is not required for any massage technician and massage establishments if all technicians are massage practitioners or therapists, who are operating under a valid certificate issued by the Massage Therapist Organization (also known as the California Massage Therapy Council), per Chapter 10.5 (Commencing with Section 4600) of Division 2 of the California Business and Professions Code relating to massage therapy, provided however, that such person and business shall not be exempted from this Article if Chapter 10.5 is repealed. However notification of the CAMTC certification number must still be made to the police department where the CAMTC permit holder is working. SECTION 7: 4.54.065 Education Requirements (a) General educational requirements. Except as indicated below, all applicants for a Massage Technician permit must meet the following educational standards to qualify for such permit, at the discretion of the Chief of Police: (1) Possession of a diploma or certificate of completion from a "recognized school of massage" which shows satisfactory completion of a resident course of study of a minimum of two hundred (200) verifiable hours on the theory, ethics, history, practice, and/or methods of massage therapy, including the study of anatomy, physiology and hygiene. (b) Exemptions from educational requirements. The following persons are exempt from the educational requirements set forth in subsection (a) above: (1) Holders of Massage Establishment business permits and Massage Technician business permits issued by th'e City before the effective date of this Chapter shall have a period of eighteen (18) months from the effective date of this Chapter to satisfy the educational requirements set forth in subsection (a) above. (2) Eighteen (18) months from the effective date of this ordinance, any therapist who does not have the required 200 hours of education will not be permitted to practice massage in Palo Alto. However, the chief of police may provide special consideration on a case-by-case basis to those massage technicians who can prove through documentation that they are currently enrolled in coursework associated with massage therapy and compliance of the 200 hour requirement is expected within a reasonable amount oftime. (3) Applicants for noncertified massage practitioner permits or applicants for noncertified massage establishments permits. SECTION 8: 4.54.070 Massage technician application fee. Any application for a permit to act as a massage technician shall be accompanied by a nonrefundable fee as set forth in the municipal fee schedule. A massage technician permit shall be renewed annually. The renewal fee shall be as set forth in the municipal fee schedule. Any person who applies for a permit to operate a massage establishment and who desires to act 6 130220 dm 0120542 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. SECTION 9: 4.54.080 Application for massage technician permit. (a) Any application for a permit to act as a massage technician shall be made with the chief of police. Within thirty working days following receipt of a completed application and LiveScan results, the chief of police shall either issue the permit, or mail a written statement of his rea1sons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. The thief of police may request the applicant to furnish fingerprints when needed for the purpose of establishing identification. In addition to the requirements of Chapter 4.04, the applicant shall furnish the following items: (1) Name, residence address and telephone number; (2) Social security number and driver's license number, if any; (3) Applicant's weight, height, color of hair and eyes; (4) Two recent passport photos of appli.cant; (5) Written eVidence that the applicant is at least eighteen years of age; (6) Business, occupation or employment of the applicant for the three years immediately preceding the date of application; (7) The name and address of the establishment where the applicant is to be employed, and the name of the owner or operator of the same. Any massage technician granted a permit pursuant to this section must report a change in massage establishment employment within five days of said change; (8) The name and address of the "recognized school of massage" attended, the date attended, and a copy of the diploma or certificate of graduation awarded to the applicant, or other documentation showing the applicant has completed 200 hours. SECTION 10. 4.54.090 Massage technician trainee. (a) Any person desiring to obtain a permit to act as a massage technician trainee shall make an application to the chief of police. Within thirty working days following receipt of a completed application and having received LiveScan results, the chief of police shall either issue the permit, or mail a written statement of his reasons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. A massage technician trainee permit shall be issued to any person who has fulfilled all the requirements of Section 4.54.080, except item (8), and who produces written proofthat the applicant is currently enrolled in a "recognized school of massage", as defined in this chapter; of the date the applicant enrolled in the recognized school of massage; and the scheduled date of graduation; and that the applicant has completed 7 130220 dm 0120542 at least fifty hours of instruction and the date this instruction was completed; provided the applicant submits a letter signed by the owner or manager of a permitted massage establishment stating his immediate intent to employ the applicant to do massage as a trainee working under the direct supervision and control of a massage technician who has received a permit under the provisions of this chapter unless: (1) The applicant knowingly made a material misstatement in the application for the trainee permit; or (2) The applicant has, within five years immediately preceding the date of the filing ofthe application, been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or any violation of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d) or 647(h) of the California Penal Code or of any offense involving theft of property. No fee shall be required of a massage technician trainee applicant. The trainee must at all times comply with the laws relating to massage establishments, and the failure to comply may render the trainee ineligible to obtain a massage technician permit. Any massage technician trainee who, during the life of the trainee per!Tlit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician applicatien fee as set forth in the municipal fee schedule. SECTION 11. 4.54.100 Appeal. In the event a permit or permit application has been denied, the applicant shall proceed pursuant to the appeal and hearing provision in Chapter 4.04. SECTION 12. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those ce.rtified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requi~ements. (2) A minimum of one toilet and wash basin shall be provided ,in every massage establishment. (3) Cabinets or other covered space shall be provided for the storage of clean linen. Approved receptacles shall be provided for the storage of all soiled linen and paper towels. (4) Minimum ventilation shall be provided in accordance with the building code of the city. To allow for adequate ventilation in cubicles, rooms and areas provided for patrons' use, which are not serviced directly by required window or mechanical systems of ventilation, partitions shall be constructed so that the height of partition does not exceed seventy-five percent of the floor-to-ceiling height of the area in which they are located. 8 130220 dm 0120542 (5) All plumbing and electrical installations shall be installed under permit and inspection of the building inspection department, and such installations shall be installed in accordance with the. Uniform Building Code and the Uniform Plumbing Code. (6) The walls in all rooms where water or steam baths are given shall have a washable, mold-resistant surface. (7) All lavatories or wash basins shall be provided with hot and cold running water, soap and single-service towels andlor hot-air hand dryers. (8) Every portion of a massage establishment, including appliances, apparatus and personnel, shall be kept clean and operated in a sanitary condition. (9) All massage establishments shall provide clean and sanitary towels, sheets and linens in sufficient quantity. Towels, sheets and linens shall not be used by more than one person. Reuse of such linen is prohibited unless the same has first been laundered. Heavy white paper may be substituted for sheets; provided, that such paper is used once for each person and then discarded i~to a sanitary receptacle. (10) 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 a.nd dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms shall be thoroughly cleaned and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use. (11) Disinfecting agents and sterilizing equipment shall be provided for any instruments used in performing acts of massage and said instruments shall be disinfected and sterilized after each use. (12) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof material. (13) (A) To protect patrons from potential health and sanitary hazards, all employees, massage technicians and massage technician trainees shall be dean and shall perform all services on the premises in full, clean outer garments. (B) Exception. A massage technician may perform services wearing no clothing or wearing less than full outer garments when teaching a class gathered to learn the theory, practice, or work of massage, and when said class consists in part of massage by the technician or members of the gathered class. The following items, (14) through (17L shall not apply to CAMTC certified establishments: II II 9 130220 dm 0120542 '(14) Each service offered, the price thereof, and the minimum length of time such service shall be performed shall be posted or shall be available in a conspicuous public location in each massage establishment. All letters and numbers shall be capitals, and not smaller than 14 point font. (15) (A) Massage establishments shall close and remain closed from eleven p.m. (llp.m.) to nine a.m. (9:00 a.m.) (B) After one year of operation a massage establishment may be exempted from the hours restrictions of this section by the chief of police upon a written request which details the factual reasons supporting good cause forthe exemption. The chief of police, in determining what constitutes good cause for this exemption from the hours restrictions, shall consider and weight the following factors: (i) The criteria outlined in Section 4.04.140 of Chapter 4.04; (ii) The criteria outlined in Section 4.54.030 ofthis chapter; (iii) The impact which the massage establishment has had on the health, safety, and welfare of the local community, including, but not limited to, parking and traffic congestion; (iv) The massag~ establishment's compliance or noncompliance with all federal, state, and local laws, including, but not limited to, this municipal code. If, upon review of those factors, the chief of police determines that good cause does exist for the requested exemption, the chief may then exempt the particular massage establishment from the hours restrictions of this section. However, in no event shall any massage establishment close later than two a.m. nor open earlier than six a.m. (C) The exemption from the hours r.estrictions of this section shall be subject to review and renewal annually at the same time as the renewal ofthe underlying permit and the same factual showing shall be made as that required for the initial exemption. The chief shall not grant an hours exemption unless said establishment has maintained the criteria specified in Section 4.54.110(a)(16)(B). (16) (Client record keeping by establishments deleted) (17) Off-premises Massage Prohibited. Except as otherwise provided, no person, shall engage in any of the services permitted under this chapter at any place other than an establishment permitted pursuant to Chapter 4.54. SECTION 13. 4.54.120 Inspection by officials. Any and all investigating officials of the city shall have the right to enter massage establishments from time to tim~ during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations. A warrant shall be obtained whenever required by law. 10 130220 dm 0120542 SECTION 14. 4.54.130 Business name. No person permitted to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the permit. SECTION 15. 4.54.140 Business location change. Upon a change of location of a massage establishment, an application to the chief of police shall be made, and such application shall be granted, provided all applicable provisions of . this code are complied with and a change of location fee as set forth in the municipal fee schedule to defray, in part, the costs of investigation and report, has been paid to the city. SECTION 16. 4.54.150 Sale or transfer of massage establishment interest. A sale or transfer of any interest in a massage establishment, which interest would be reported as required in this chapter upon application for a massage establishment permit, shall be reported to the chief of police within ten days of such sale or transfer. The chief of police shall investigate any person receiving any interest in a massage establishment as aresult of such sale or transfer, and if such person satisfies the requirements relating to massage establishment permit applicants/the existing permit shall be endorsed to include such person. A fee as set forth in the municipal fee schedule shall be paid to the city for the investigation by the chief of police necessitated by eacb such sale or transfer. SECTION 17. 4.54 .• 160 Display of permits, permits. The owner or operator of a massage establishment shall display the massage establishment permit and the permit of each and every massage technician or massage .. technician trainee employed in the establishment in an open and conspicuous place on the . premises or keep the permits together in a designated area, such that the permits are easily accessible for inspection. Passport-size photographs of permittees shall be affixed to the respective permits on display pursuant to this section. Home addresses of massage technicians and massage technician trainees need not be displayed. A fine for continued violation will be collected in an amount to be determined by resolution of the City Council. SECTION 18. 4.54.170 Exemptions. The provisions of this Chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions: (1) PhYSicians, surgeons, chiropractors, osteopaths or physical therapists who are duly permitted to practice their respective professions in the state of California; (2) Nurses registered under the laws of the state of California; (3) Barbers and beauticians who are duly permitted under the laws of the state of California. 11 130220 dm 0120542 (4) Reflexologists performing reflexology; however any reflexologist engaged in massage shall be required to comply with the provisions of this Chapter. SECTION 19. 4.54.180 Grounds for denial, probation, and disciplinary action. In addition to any provisions of this chapter, the grounds set forth in Section 4.04.140 shall apply to permits and permits required under this chapter. Any circumstances constituting grounds for denial shall also constitute grounds for revocation, suspension or disciplinary action. SECTION 20. 4.54.190 Hearing. Any permittee whose permit has been suspended or revoked shall proceed pursuant to the appeal and hearing provisions of Chapter 4.04. SECTION 21. 4.54.200 Application to existing establishments and technicians. All operators of existing massage bath or health treatment establishments, and all persons engaged in giving massage, bathing and health treatments in the city upon the effective date of this chapter shall begin the application process and comply with all application and other requirements within sixty (60) days following the effective date of this chapter . . SECTION 22. 4.54.210 Application of other code provisions. Chapters 1.08 and 4.04 shall apply to the subject matter of this chapter in all respects, including those not specifically mentioned in this chapter. SECTION 23. The Council finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. II II II II II II II II II 12 130220 dm 0120542 SECTION 24. This ordinance shall be effective on the commencement ofthe thirty- first day after the date of its adoption. INTRODUCED: July 23, 2012 PASSED: September 4, 2012 AYES: BURT, HOLMAN, KLEIN, PRICE, SCHARFF, SCHMID, SHEPHERD, YEH NOES: ABSTENTIONS: ABSENT: ESPINOSA ~~ City Clerk 9- APPROVED AS TO FORM: j\ Assistan~City Attorney S:Y)k>r ~~ 1r 130220 dm 0120542 13 APPROVED: !!;~ Director of Planning and Community Environment