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HomeMy WebLinkAboutID-2988-original City of Palo Alto (ID # 2988) City Council Staff Report Report Type: Consent Calendar Meeting Date: 7/23/2012 July 23, 2012 Page 1 of 5 (ID # 2988) Summary Title: Massage Ordinance Title: Policy and Services Committee Recommendation Regarding Massage Ordinance From: City Manager Lead Department: Police Recommendation The Policy and Services Committee and staff recommends that the Council review and adopt the updated Palo Alto Massage Ordinance 4.45 PAMC, as unanimously recommended by the Policy and Services Committee on June 12, 2012. Background In 1974, the City of Palo Alto enacted massage ordinance 4.54 PAMC (Attachment B) to regulate the location of and ensure the lawful commerce of massage businesses in Palo Alto. The Police Department has been responsible for compliance with and enforcement of that ordinance, including permitting and compliance responsibilities. In 1996, in anticipation of pending State legislation and oversight, the City of Palo Alto suspended enforcement of licensing requirements for massage establishments. For a variety of reasons, the anticipated State legislation did not pass until 2009. This legislation created the California Massage Therapy Council (CAMTC), a public nonprofit benefit corporation, to regulate massage practice. Senate Bill 731, adopted in September 2009, enacted legislation impacting the ability of municipalities to regulate massage establishments and created the CAMTC to regulate and standardize the issuance of massage therapist and practitioner certificates throughout the state. Under State Law and SB 731, massage practitioners with a valid state certificate may practice massage in any July 23, 2012 Page 2 of 5 (ID # 2988) jurisdiction, without having to obtain additional permits from any local regulating body. In addition, the code prohibits local regulating bodies from adding massage specific regulations to massage businesses operated by CAMTC certificate holders. The intent of the bill is to provide uniform regulations statewide and to eliminate the disparate treatment of massage establishments. The code allows local jurisdictions to adopt reasonable health and safety requirements for massage establishments and provides the authority for local jurisdictions to establish an application process for massage practitioners and establishments that choose not to certify through CAMTC. CAMTC certification is strictly voluntary, and requires extensive hours of qualified education, background checks, and biennial fees. Approximately half of the therapists currently working in Palo Alto are CAMTC certified; the remaining have either an older-issued City permit or no massage permit. The City’s current massage ordinance does not recognize CAMTC certified therapists. After the new legislation went into effect, staff reviewed the City’s ordinance, State regulations and the massage ordinances of many surrounding cities. Other cities use a variety of approaches to regulate massage in their jurisdiction. Many use a hybrid approach of having a City permitting process as well as exempting CAMTC certified therapists (refer to attachment C for a summary). Staff learned that the City’s existing ordinance is significantly out of compliance with the new state law and it is necessary to redraft major portions of the City’s existing ordinance to become compliant. There are 191 massage therapists who hold permits issued under the existing ordinance to work within the City of Palo Alto. Research to gauge the current number of unpermitted massage therapists in Palo Alto revealed that the California Avenue business area had approximately twenty-four unregulated therapists. A number of these therapists are working without permits in solo establishments, in violation of the suspended ordinance. The Policy and Services Committee reviewed staff’s recommendations for revisions to the City’s Massage ordinance at its February, April and June meetings. Staff revised the ordinance each time as directed by the Committee (see July 23, 2012 Page 3 of 5 (ID # 2988) attachment D, E and F for City Manager Reports and minutes for each Committee meeting). At its June 12, meeting, the Policy and Services Committee unanimously recommended that the City Council adopt the Ordinance as provided in Attachment A. Discussion The City of Palo Alto’s proposed massage ordinance has been revised to comply with current state laws, including proposed revisions for municipal fees for permits. City of Palo Alto Massage Ordinance The City of Palo Alto Massage Ordinance provides for the regulation of massage establishments and massage technicians in the interests of the public health, safety, and welfare by providing certain minimum qualifications for the operators of massage establishments and for massage technicians and trainees. The proposed ordinance allows two methods for certification. Massage practitioners can obtain a CAMTC certificate which will permit them to operate without additional requirements or certification. The practitioners that do not obtain CAMTC certification can obtain a permit from the City. The proposed ordinance mandates non-CAMTC certified applicants to submit their fingerprints to the Department of Justice and FBI via Livescan for purposes of a criminal history check as well as to have minimum education hours from an accredited school. These requirements are consistent with what the CAMTC requires and are less stringent. The educational hours required to obtain a City permit are 200; CAMTC requires either 250 or 500 hours depending on certification level. The City will grant a grace period of 18 months to previously permitted Palo Alto therapists to meet the required additional education requirement. The proposed ordinance also creates a new category of therapist, a Non-Certified Therapist that is described further below. The proposed massage ordinance (Attachment A) encompasses the following changes to the City’s current ordinance: Adds language to exempt CAMTC certificate holders from obtaining an additional City massage permit. July 23, 2012 Page 4 of 5 (ID # 2988) Increases the education hours (from an accredited school) required for therapists from the current 100 hours to 200 hours. Creates two new categories of establishments: a Sole Proprietor, allowing a single person massage business to operate at a fixed location and reduces establishment fees; and, a Non-Certified establishment, allowing an establishment with employees that have not met the education requirement of a massage therapist. Creates a new category of therapist, a Non-Certified therapist, which is exempt from the City’s education requirement when performing clothed massage in an open setting. Adds the requirement of a minimum of $100,000 in liability malpractice insurance by all establishments, sole proprietors, and businesses supporting accessory massage technicians. Adds the requirement that massage technician permits be on display in a conspicuous location in all establishments. Exempts reflexologists from obtaining a City permit when performing reflexology only. Eliminates any special building requirements for massage establishments, as required by SB 731. Eliminates zoning requirements specifically targeting massage establishments. Adds the ability to deny massage technician permit issuance to any person the CAMTC has previously revoked, suspended, or denied. Community Outreach Staff made significant efforts to involve the members of the massage community in the re-drafting of this ordinance. The following meetings were held with both individuals and large groups: April 4, 2011- meeting with Watercourse Way representatives April 5, 2011- community meeting in council chambers May 5, 2011 - meeting with Happy Feet owner May 18, 2011- Multi-jurisdictional CAMTC Meeting May 19, 2011 and May 26, 2011- Small Group Massage Therapist meetings to review ordinance draft June 2, 2011- Second community meeting. July 23, 2012 Page 5 of 5 (ID # 2988) The meetings generated good discussion. Most of the concerns and issues brought forth by the therapist community are addressed in the revised ordinance. Resource Impact The passage of the proposed ordinance will require staff time to get all current therapists permitted and sole proprietorships and establishments permitted/inspected. The ordinance establishes a grace period of 18 months for educational requirements and 60 days for massage establishments to become compliant. The ordinance requires annual inspections by a Police Department staff member that can be completed within the existing job classification of Code Enforcement Officer and within the existing Police Department budget. Recommended permit fees to implement the ordinance is to be determined by estimating the costs of staff time and materials required for the permitting process. A survey of surrounding agencies’ fees will be conducted as well. Staff anticipates returning to the City Council in the first quarter of FY 2013 for formal adoption of the revised municipal fees concerning massage establishments and technicians. Attachments: Attachment A - Proposed Massage Ordinance 061212 (PDF) Attachment B - Current Massage Ordinance (PDF) Attachment C - Comparison to Local Jurisdictions (PDF) Attachment D - CMR & Minutes 02-14-12 (PDF) Attachment E - CMR & Minutes 04-10-12 (PDF) Attachment F - CMR & Minutes 06-12-12 (PDF) Prepared By: Ian Hagerman, Sr. Performance Auditor Department Head: Dennis Burns, Police Chief City Manager Approval: ____________________________________ James Keene, City Manager 1 ***Proposed Massage Municipal Code*** 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 the owners and all practitioners are CAMTC certified. 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 or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. (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 as the principal functions. 2 (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 technician 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 non- profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. (11) “Accessory Technician Permit” A technician 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 remains fully clothed and does not disrobe except below the knee. A noncertified practitioner must: (1) apply for and obtain a noncertified practitioner 3 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. 4.54.030 Massage establishment permit required. (a) Except as otherwise provided, it is unlawful for any person to engage in, conduct or carry on, 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 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 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. 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. 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 addition 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 of the stock of the corporation. If the 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; 8. The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the 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 5 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. 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 of this 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. (b) A permit issued by the chief of police is not required for any massage technician and massage establishments if the owners and 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 6 (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. 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 the 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 of time. (3) Applicants for noncertified massage practitioner permits or applicants for noncertified massage establishments permits. 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 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. 4.54.080 Application for massage technician permit. 7 (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 reasons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. The chief 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 applicant; (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. 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 proof that 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 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 8 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 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 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. 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. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those certified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (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 9 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. (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 and/or 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 into 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 and 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 clean 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. 10 The following items, (14) through (17), shall not apply to CAMTC certified establishments: (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. (11 p.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 for the 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 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the 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. 11 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 time 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. 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. 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. 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 a result 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 each such sale or transfer. 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. 4.54.170 Exemptions. 12 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. (4) Reflexologists performing reflexology; however any reflexologist engaged in massage shall be required to comply with the provisions of this Chapter. 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. 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. 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. 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. Chapter 4.54 MASSAGE ESTABLISHMENTS Sections: 4.54.010 Purpose and intent. 4.54.020 Definitions. 4.54.030 Massage establishment license required. 4.54.040 Massage establishment license application fee. 4.54.050 Application for massage establishment license. 4.54.060 Massage technician permit required. 4.54.070 Massage technician application fee. 4.54.080 Application for massage technician permit. 4.54.090 Massage technician trainee. 4.54.100 Appeal. 4.54.110 Massage establishment facilities and operations requirements. 4.54.120 Inspection by officials. 4.54.130 Business name. 4.54.140 Business location change. 4.54.150 Sale or transfer of massage establishment interest. 4.54.160 Display of permits, licenses. 4.54.170 Exemptions. 4.54.180 Grounds for denial, probation, and disciplinary action. 4.54.190 Hearing. 4.54.200 Application to existing establishments and technicians. 4.54.210 Application of other code provisions. 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. (Ord. 2833 § 1 (part), 1974) 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 establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on massages, baths or health treatments involving massage or baths as the principal functions. (3) "Massage technician" 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. (4) "Recognized school of massage" means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage, which school or institution of learning requires a residence course of study of not fewer than seventy hours to be given in not more than three calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which 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." (5) "License" means the business license to operate a massage establishment as required by this chapter. (6) "Permit" means the permit to engage in the activities of a massage technician or a massage technician trainee as required by this chapter. (7) "Person" means any individual, firm, association, partnership, corporation, joint venture or combination of individuals. (Ord. 2833 § 1 (part), 1974) 4.54.030 Massage establishment license required. (a) It is unlawful for any person to engage in, conduct or carry on, in or upon any premises within the city the operation of massage establishment without the license obtained from the chief of police as required by this chapter. A massage establishment license 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 of this code; unless grounds for denial of such license are found to exist. In addition to those set forth in Section4.04.140, grounds for denial include: (1) The applicant made a material misstatement in the application for a license; (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. (Ord. 3113 § 4, 1979: Ord. 2946 § 1, 1976: Ord. 2921 § 9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.040 Massage establishment license application fee. Any application for a license 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. A license to operate a massage establishment shall be renewed annually. The renewal fee shall be as set forth in the municipal fee schedule. (Ord. 2960 § 27, 1976: Ord. 2921 § 1, 1976: Ord. 2833 § 1 (part), 1974) 4.54.050 Application for massage establishment license. (a) Any application for a license to operate a massage establishment shall be made with the chief of police. Within thirty working days following receipt of a completed application, 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 therefor, 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 addition to the requirements of Chapter 4.04 and this section, any applicant shall furnish the following information: (1) 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; (2) Written proof that the applicant is at least eighteen years of age; (3) Applicant's height, weight, color of eyes and hair; (4) The applicant shall allow the police officer processing the application to take photographs of the applicant; (5) Business, occupation or employment history of the applicant for the three years immediately preceding the date of the application; (6) 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 of the stock of the corporation. If the 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; (7) The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the employment, other than any person licensed 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 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 licensee 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; (8) Such other information as may be deemed necessary by the chief of police. (Ord. 2946 § 2, 1976: Ord. 2921 § 9, 1976: Ord. 2833 § 1 (part), 1974) 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. A massage technician permit shall be issued to any person who has fulfilled the requirements of Section 4.54.080, and all other applicable provisions of this code; unless grounds for denial of such permit are found to exist. In addition to those set forth in Section4.04.140, grounds for denial include: (1) The applicant made a material misstatement in the application for a license; (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 of this chapter, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage establishments or massage technicians. (Ord. 3113 § 5, 1979: Ord. 2921 §§ 2, 9, 1976: Ord. 2833 § 1 (part), 1974) 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 license to operate a massage establishment and who desires to act as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. (Ord. 2960 § 28, 1976: Ord. 2921 § 3, 1976: Ord. 2833 § 1 (part), 1974) 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, 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. The chief 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 information: (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) The applicant shall furnish a recent photograph of applicant to the police department official who processes the application; (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 the applicant showing the applicant has completed not fewer than seventy hours of instruction, or written and verified proof that applicant has had at least five hundred hours' experience in the profession, work and method of massage as of the effective date of the ordinance codified in this chapter. (Ord. 2921 §§ 4, 9, 1976: Ord. 2833 § 1 (part) 1974) 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, 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 the requirements of Section 4.54.080 and who produces written proof that 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 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 licensed 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 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 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. The trainee permit shall allow the student to work 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; provided, however, no licensed massage technician shall be permitted to supervise more than two persons issued a trainee permit. The trainee permit shall expire three months from the date of issuance and shall not be renewed unless good cause is shown by the applicant for such renewal. 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. (Ord. 2960 § 29, 1976: Ord. 2921 §§ 5, 9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.100 Appeal. In the event a permit or license application has been denied, the applicant shall proceed pursuant to the appeal and hearing provision in Chapter 4.04. (Ord. 2833 § 1 (part), 1974) 4.54.110 Massage establishment facilities and operations requirements. (a) All massage establishments shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (2) A minimum of one tub or shower, and 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. (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 in wall-mounted dispensers. (8) Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patron shall be available for the protection of the valuables of the patrons. (9) Every portion of a massage establishment, including appliances, apparatus and personnel, shall be kept clean and operated in a sanitary condition. (10) All massage establishments shall be provided with 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 into a sanitary receptacle. (11) 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 and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use. (12) 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. (13) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof material. (14) (A) To protect patrons from potential health and sanitary hazards, all employees, massage technicians and massage technician trainees shall be clean 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. (15) Each service offered, the price thereof, and the minimum length of time such service shall be performed shall be posted in a conspicuous public location in each massage establishment. All letters and numbers shall be capitals, and not less than one- half inch in height. (16) (A) Massage establishments shall close and remain closed from eleven p.m. to nine 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 for the 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 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the underlying license 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). (17) No massage establishment shall be allowed in the following locations: (A) Within two hundred fifty feet of the exterior property limits of any public or private elementary school, junior high school or high school; (B) Within two hundred fifty feet of the exterior limits of any district where residential use is the principal permitted use, including all R and RM districts, O-S districts, and any P-C or P-F districts where the principal use permitted or maintained is residential; or (C) Within twelve hundred feet of the ex-terior property limits of any other premises lawfully occupied by a massage establish-ment, by any establishment subject to the provisions of Chapter 4.55, any cardroom or hot tub/sauna establishment. For the purpose of determining compliance with this standard, as to, between and with respect to establishments lawfully in operation on the effective date of this section, priority between such existing establishments shall be assigned in accordance with the dates upon which said establishments commenced such lawful operations. All massage establishments lawfully in operation on the effective date of this section shall within sixty days of said date apply to the chief of police for a determination as to compliance with the provisions of this section. Said application shall be in such form as prescribed by the chief of police. Any massage establishment legally existing on the effective date of this subsection and which is not in compliance with the provisions of this subsection shall comply with said provisions on or before May 24, 1987; provided, however, that any such establishment which intends to in any way transfer ownership or alter or change the nature of any such massage establishment on or after the effective date of this subsection shall comply with the provisions of this subsection prior to such transfer, alteration or change. Any such use which at the expiration of said period is not in compliance with the provisions of this subsection shall at that time discontinue and abate its operation. Any massage establishment lawfully in operation upon the effective date of this subsection failing to comply with the provisions of this subsection shall be issued a limited-term license in lieu of its current license, containing a statement on its face reciting such noncompliance and the date by which compliance must be accomplished, and that said license shall not be renewed beyond said date. All distances referred to in this subsection shall be measured between the closest points on the exterior property lines or area boundaries of the parcels or areas involved, except that when a massage establishment subject to the provisions of this section occupies one unit of a multi-unit structure located on a single parcel, distances shall be measured from the exterior boundaries of the unit so occupied. (18) Outcall Prohibited. No person shall engage in any of the services permitted under this chapter at any place other than an establishment licensed pursuant to Chapter 4.54, unless the patron possesses and presents a valid prescription or other writing from a licensed physician to the effect that the patron of such services cannot be treated at a licensed massage establishment. A record of every such prescription or other writing shall be obtained and kept by the person rendering the services for a period of one year. Such record shall show the name and address of the doctor, the date, and any prescription number. (Ord. 4642 § 3, 2000: Ord. 3592 § 1, 1985: Ord. 3113 § 6, 1979: Ord. 3095 § 1, 1978: Ord. 2946 § 3, 1976: Ord. 2921 § 6, 1976: Ord. 2833 § 1 (part), 1974) 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 time 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. (Ord. 2833 § 1 (part), 1974) 4.54.130 Business name. No person licensed to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the license. (Ord. 2833 § 1 (part), 1974) 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. (Ord. 2960 § 30, 1976: Ord. 2921 §§ 7, 9, 1976: Ord. 2833 § 1 (part), 1974) 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 license, 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 a result of such sale or transfer, and if such person satisfies the requirements relating to massage establishment license applicants, the existing license 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 each such sale or transfer. (Ord. 2960 § 31, 1976: Ord. 2921 §§ 8, 9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.160 Display of permits, licenses. The owner or operator of a massage establishment shall display the massage establishment license 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. Passport-size photographs of the licensee and permittees shall be affixed to the respective license and permits on display pursuant to this section. Home addresses of massage technicians and massage technician trainees need not be displayed. (Ord. 2833 § 1 (part), 1974) 4.54.170 Exemptions. (a) 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 licensed to practice their respective professions in the state of California; (2) Nurses registered under the laws of the state of California; (3) Trainers of any amateur, semiprofessional or professional athlete or athletic team; (4) Barbers and beauticians who are duly licensed under the laws of the state of California. (Ord. 2833 § 1 (part), 1974) 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 licenses and permits required under this chapter. Any circumstances constituting grounds for denial shall also constitute grounds for revocation, suspension or disciplinary action. (Ord. 3113 § 7, 1979: Ord. 2833 § 1 (part), 1974) 4.54.190 Hearing. Any licensee or permittee whose license or permit has been suspended or revoked shall proceed pursuant to the appeal and hearing provisions of Chapter 4.04. (Ord. 2833 § 1 (part), 1974) 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 comply with all application and other requirements within thirty days following the effective date of this chapter. (Ord. 2833 § 1 (part), 1974) 4.54.210 Application of other code provisions. Chapter 4.04 shall apply to the subject matter of this chapter in all respects, including those not specifically mentioned in this chapter. (Ord. 2833 § 1 (part), 1974) Disclaimer: This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing Corporation provides these documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. For further information regarding the official version of any of this Code of Ordinances or other documents posted on this site, please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588. © 2011 American Legal Publishing Corporation techsupport@amlegal.com 1.800.445.5588. City of Palo Alto (ID # 2287) Policy and Services Committee Staff Report Report Type:Meeting Date: 2/14/2012 February 14, 2012 Page 1 of 12 (ID # 2287) Summary Title: Massage Ordinance Revision Title: Request Policy and Services Committee Review of the Proposed Ordinance Changes to Section 4.54, Massage Establishments From:City Manager Lead Department: Police Recommendation Staff requests that the Policy and Services Committee review the proposed updated Massage Ordinance and recommend passage of the ordinance to City Council. Background The City of Palo Alto enacted the current massage ordinance, Palo Alto Municipal Code (PAMC) Section 4.54, to regulate the location of and ensure the lawful commerce of massage businesses in Palo Alto. The ordinance was enacted in 1974 (Attachment A). The Police Department has been responsible for compliance with and enforcement of that ordinance. In 1996, in anticipation of pending State legislation and oversight, the City of Palo Alto suspended enforcement of the massage ordinance. For a variety of reasons, the anticipated State legislation was not passed until 2009. During the interim period, the City of Palo Alto informed massage applicants and previously permitted therapists of the ordinance suspension (Attachment B). The Police Department’s Code Enforcement Officer is responsible for massage permitting and compliance with the ordinance. The Police Department recently revisited the ordinance and State regulations. The review included research into the number of massage practitioners in Palo Alto and a comparison of Palo Alto’s ordinance with other municipalities’ ordinances and with the State regulations and requirements. The Police Department reviewed the massage municipal ordinances of Belmont, San Mateo, Los Gatos, Redwood City, Burlingame, Foster City, Mountain View, and Millbrae. There are 195 massage therapists currently working in the City, 111 of whom are CAMTC certified. Sample research to gauge the current number of unpermitted massage therapists in Palo Alto revealed that the California Avenue business area had approximately 24 unregulated therapists. A number of those therapists are working without permits in solo establishments, in violation of the suspended ordinance. There are currently three businesses within Palo Alto that are permitted as massage establishments; Watercourse Way, Body Kneads, and Massage February 14, 2012 Page 2 of 12 (ID # 2287) Therapy Center. There are four similar businesses in Palo Alto that are not permitted as massage establishments: Equinox, La Belle Day Spa, Destino Spa, and Happy Feet. The Police Department contacted the California Massage Therapy Council (CAMTC) for their regulations on massage therapy. The CAMTC is a public nonprofit benefit corporation established by the State legislature in 2009 to regulate massage practice. Based on the CAMTC regulations and the ordinances of other municipalities, the Police Department and City Attorney’s Office determined it was necessary to redraft major portions of the City’s existing ordinance. These recommended changes include adding an additional massage therapist classification, and suggesting changes to permitting fees. The proposed fee adjustments are consistent with the fees charged by other major cities within Santa Clara County and adjacent counties. State Legislation Senate Bill 731 and Business and Professions Code 4600 Senate Bill (SB) 731, adopted in September 2009, enacted legislation impacting the ability of municipalities to regulate massage establishments (Attachment C). It also created a public nonprofit benefit corporation, the California Massage Therapy Council (CAMTC), and authorized CAMTC to regulate and standardize the issuance of massage therapist and practitioner certificates throughout the state. SB 731 prohibited any city or county from enacting ordinances regulating the practice of massage by CAMTC certificate holders. Under SB 731, persons who apply for and are granted a massage therapist or practitioner certificate are exempt from any local ordinances regulating massage. Under State Law (B&P section 4612), massage practitioners with a valid state certificate may practice massage in any jurisdiction, without having to obtain additional permits from any local regulating body (Attachment D). In addition, the code prohibits local regulating bodies from adding massage specific regulations to massage businesses operated by CAMTC certificate holders. The intent of the bill is to provide uniform regulations statewide and to eliminate the disparate treatment of massage establishments. The code allows local jurisdictions to adopt reasonable health and safety requirements for massage establishments and provides the authority for local jurisdictions to establish an application process for massage practitioners and establishments that choose not to certify through CAMTC. The City of Palo Alto’s existing massage ordinance is not consistent with Senate Bill 731 and includes requirements that are prohibited by SB 731. Assembly Bill 619, approved by the Governor August 3, 2011 On January 1, 2012, new legislation went into effect (AB 619), amending SB 731 and expanding the ability of the CAMTC to enact regulatory powers over certified massage practitioners and therapists. AB 619 changed some of the CAMTC certification renewal dates, required certificate holders to display their certificates and removed some certificate holder liability. CAMTC Guidelines February 14, 2012 Page 3 of 12 (ID # 2287) Business and Professions Code 4600 establishes the CAMTC guidelines for two separate classifications for massage workers: Massage Practitioner and Massage Therapist. The application and certification process for both certifications require education hours in excess of what the City of Palo Alto’s suspended massage ordinance currently requires. The CAMTC contracts with investigators to carefully review the background and qualifications of each applicant prior to approving certification. The following is the criteria for certification by the CAMTC: 4601(a) Massage practitioner: ·The applicant must be 18 years or older. ·Must have successfully completed 250 hours of education from a CAMTC approved school. ·Provide proof of official tax returns. ·Pass a DOJ and FBI background check. ·Have no disqualifying criminal history. 4601(c) Massage Therapist: ·The applicant must be 18 years or older. ·Must have successfully completed from a CAMTC approved school 500 hours of education. ·Must pass a massage and bodywork competency assessment test. ·Provide proof of official tax returns. ·Pass a DOJ and FBI background check. ·Have no disqualifying criminal history. State Law Summary ALLOWED PROHIBITED Local agency may verify information and receive the state certificate holder’s history from CAMTC. Local agency cannot require CAMTC certified massage therapists to obtain a license, permit or other authorization to practice massage. Local agency may adopt reasonable health and safety requirements, i.e., cleanliness of massage rooms, towels and linens, reasonable attire and personal hygiene for persons providing massage services providing it does not impose additional qualifications such as medical exams, background checks or other criteria. Local agency cannot enact ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits or zoning requirements that are different than those requirements that are uniformly applied to all individuals and businesses providing professional services. Local agency may require file copies or other evidence of state certification and must have on premise for review. Local agency cannot enact or enforce existing local building code or physical facility requirements that do not uniformly apply to other professional or personal service February 14, 2012 Page 4 of 12 (ID # 2287) businesses. Local agency may require owner or operator to be responsible for conduct of all employees or independent contractors working on premises of the business, and revoke, or suspend for violations on the premises. Local agency cannot require unlocked doors when there is no staff available to ensure security for clients and massage staff who are behind closed doors or require windows that provide a view into the rooms that interfere with the privacy of clients of the massage business. Local agency may conduct reasonable inspections. Local agency may require the owner/operator to notify the city of any change to name, management or conveyance of the business to another person. Local agency can require a background check on an owner who owns more than 5% of the business and is not state certified. The intention of the state law is to enable consumers to identify legitimate and professional massage therapists and businesses by establishing certain standards and requiring background checks and fingerprinting. In addition, the CAMTC investigates and approves schools of massage that meet CAMTC criteria. CAMTC maintains a list of “suspect” schools and has authority to deny or revoke certifications. Other Municipal Massage Ordinances Other local cities and counties such as Redwood City and the San Mateo County Sheriff’s Office are currently updating their municipal codes relating to massage to comply with SB 731 and AB 619. Other municipalities such as the Cities of San Mateo, Foster City, Belmont, and Burlingame continue to operate with their existing city processes and exempt CAMTC certified therapists, practitioners, and establishments from city regulations. A summary of local municipalities’ massage ordinances follows: ·Santa Rosa, San Rafael, and San Carlos have adopted ordinances that remove the option for city permits and require all massage therapists in their respective jurisdictions to be CAMTC certified. Redwood City and the San Mateo County Sheriff’s office are considering similar ordinances. ·Los Gatos recently adopted an ordinance allowing for two methods of obtaining a permit. This system provides the option of two complying permits; either through CAMTC or through the local permitting process. ·Sunnyvale adopted a similar ordinance. Massage practitioners have two options to comply with the ordinance. They can obtain a massage license issued by the director of public safety by meeting City certification requirements or obtain certification February 14, 2012 Page 5 of 12 (ID # 2287) through the CAMTC process. The Sunnyvale ordinance requires a higher minimum of liability coverage than surrounding cities. ·Mountain View recently updated its massage ordinance which also allows two methods of obtaining a massage permit. Mountain View has included unique establishment and practitioner classifications in its massage ordinance that have specific requirements. The classifications are “Non-certified Massage Permit” and “Non-certified Massage Establishment Practitioner.” Mountain View’s defines a non-certified massage practitioner as a massage practitioner who performs massage in an open and common room without partitions, and the individual in receipt of the massage remains fully clothed and does not disrobe except below the knee. Non- certified massage establishments are defined as establishments that employ exclusively non-certified practitioners. Other than this exemption, the same requirements applicable to normal massage establishments apply to non-certified massage establishments. Discussion The City of Palo Alto’s proposed massage ordinance has been revised to comply with current state laws, including revised municipal fees for permits and provides the option of a local permitting process as an alternative to CAMTC certification. City of Palo Alto Massage Ordinance Proposal The City of Palo Alto Massage Ordinance provides for the orderly regulation of massage establishments and massage technicians in the interests of the public health, safety, and welfare by providing certain minimum qualifications for the operators of massage establishments and for massage technicians and trainees. Staff’s proposed ordinance allows two methods for certification. Massage practitioners can obtain a CAMTC certificate, which will permit them to operate without additional requirements or certification. Those practitioners who do not obtain CAMTC certification can obtain a permit from the City. The proposed ordinance mandates non-CAMTC certified applicants obtain a DOJ fingerprint check and criminal history check. Non-CAMTC applicants must have minimum education hours from an accredited school. The proposed ordinance has less stringent requirements for City applicants than the requirements of CAMTC. The educational hours for a City permit are 200; CAMTC requires either 250 or 500 hours depending on certification level. A grace period of 18 months will be granted to previously permitted Palo Alto therapists to allow the therapists to meet the required additional education. The proposed ordinance would require massage therapists to receive education from schools accredited by the Bureau for Private Post Secondary Education, a government institution of the Department of Consumer Affairs. The City of Palo Alto proposed massage ordinance (Attachment F) encompasses the following changes to the 1974 ordinance: February 14, 2012 Page 6 of 12 (ID # 2287) ·Adds language to exempt CAMTC certificate holders from obtaining an additional City massage permit. ·Increases the education hours (from an accredited school) required for therapists from the current 100 hours to 200 hours. ·Creates a new category of establishment, a sole proprietor, allowing a single person massage business to operate at a fixed location and reduces establishment fees. ·Adds the requirement of malpractice insurance, a minimum of $100,000 liability by all establishments, sole proprietors,and businesses supporting accessory massage technicians. ·Adds the requirement that massage technician permits be on display in a conspicuous location in all establishments. ·Requires all establishments to maintain limited client records including contact information, to be furnished upon court order to investigating City officials. ·Eliminates any special building requirements for massage establishments, as required by SB 731. ·Eliminates zoning requirements specifically targeting massage establishments. ·Adds the ability to deny massage technician permit issuance to any person the CAMTC has previously revoked, suspended, or denied. Permitting fees were determined by estimating staff time required for the permitting process and a survey of surrounding agencies’ fees (Attachment G). The City of Palo Alto’s review of those fees concluded that reasonable annual massage therapist and establishment rates for the City are as follows: Massage Establishments (New) $750 (Renewal) $450 Sole Proprietor establishment (New) $350 (Renewal) $150 Massage Technician (New) $300 (Renewal) $150 Community Discussion Following the creation of the draft ordinance, police staff posted the draft ordinance on the City’s website. Staff invited massage therapists and establishment proprietors operating in Palo Alto to a series of community meetings. The two meetings were attended by police staff and the Assistant City Attorney on April 5, 2011 and June 2, 2011. A CAMTC Board Member attended the June 2nd meeting. On May 18, 2011, Police Department staff held a multi- jurisdictional meeting with the CAMTC board members and staff from other municipalities to clarify the intent and reading of SB 731. The following paragraphs outline the specific meeting dates and discussion. April 4, 2011-Meeting with Watercourse Way Representatives Police Department staff met with the business owner and an administrator from Watercourse Way (WCW), a massage establishment in Palo Alto. WCW staff expressed concerns about the February 14, 2012 Page 7 of 12 (ID # 2287) potential impact the updated massage ordinance would have on their business. WCW staff felt that the ordinance did not comply with B&P 4601 as it was written and that it was unfairly targeting their business. WCW staff thought the fees were unfair and questioned why they were going to be assessed after 15 years of no enforcement. WCW staff was also concerned about the change in zoning ordinances for massage business and the possibility of additional competition. Department staff noted all of the concerns and WCW representatives were included in subsequent discussions and review of the draft ordinance. Community Meeting on April 5, 2011 On April 5, 2011, a general community meeting was held in the Council Chambers to discuss the draft ordinance. The meeting was attended by police staff and the Assistant City Attorney. Approximately 60-70 persons, many of whom were practitioners, attended the meeting. The proposed changes to the ordinance were read aloud for the community members. Staff explained the reasons for updating the ordinance and acknowledged that considerable time had passed since the City stopped assessing fees for massage permitting and enforcing of the existing ordinance. Staff explained the review process of other municipal ordinances and the research conducted into new State laws regulating the massage industry. Staff also supplied printed copies of the draft ordinance. Community members voiced a number of concerns during the meeting. A principal concern with the initial draft was a requirement that all establishments must maintain a “log book,” recording information about the client including contact information, services rendered, and date and time of service, to be furnished to Police personnel upon request. Other municipalities have this requirement to assist in criminal investigations. Massage establishment proprietors challenged the legality of the log book. Community members also wanted to eliminate the requirement of a citizen needing a physician’s note to allow in-home or “outcall” massage practice, feeling it was an undue burden on the therapist and client. In addition, some practitioners did not think it was necessary to have to provide a locked receptacle for securing client’s personal items. Members requested a “grandfather” provision, waiving additional education requirements for therapists currently permitted with the City. Staff assured the community members that all of their input and concerns would be considered before a final draft of the ordinance was authored. May 5, 2011 meeting with Happy Feet owner Police Department staff met with the owner of Happy Feet in Palo Alto, Mr. Bertlesen. Happy Feet is an unpermitted massage establishment that offers low cost full body massage with the clients fully clothed. Mr. Bertlesen does not feel that his business of “reflexology” and “foot massage” met the definition of “massage” as defined in the City’s ordinance. Mr. Bertlesen believes that his employees should be exempt from meeting the education requirements of the ordinance and that they should not have to be permitted as massage technicians with the City. His employees are not CAMTC certified. Happy Feet employees do not have any verifiable education in massage technique. Mr. Bertlesen stated the employees of Happy Feet are paid February 14, 2012 Page 8 of 12 (ID # 2287) low wages, and only for the actual time they spend doing massage. Happy Feet’s business model keeps his low-cost massage business operating, and Mr. Bertlesen stated if his employees were required to meet certification standards they would leave his business for other employment. Staff listened to Mr. Bertlesen’s concerns and reviewed the definition of “massage” with him. The hands-on nature of the full body massage that Happy Feet provides clearly puts the business within the category of a massage establishment. Staff discussed the possibility of allowing an exemption for a foot massage only business. Staff advised Mr. Bertlesen that if his business provided full body massage the therapists would be required to meet the certification standards in the ordinance. Staff offered suggestions such as allowing extra time for him to bring in a CAMTC certified trainer who spoke other languages, so that his staff could meet the education requirements of the City’s ordinance. May 18, 2011-Multi-Jurisdictional CAMTC Meeting In order to fully understand and comply with SB 731 regulations, police staff organized a meeting with CAMTC board members to explain the State Council’s purpose and regulatory function. Representatives from other cities were invited to the meeting and were in attendance. The CAMTC board members clarified how municipalities can enforce their own massage ordinances. The CAMTC recommended the option that cities adopt a rule to only allow CAMTC certified practitioners and therapists to operate within their jurisdiction. That option would allow for very little oversight and regulation as CAMTC certificate holders are exempt from the City permit process to practice massage. The CAMTC also has stringent education guidelines, completes thorough background checks, and has the ability to suspend or revoke certifications upon validated complaints. The requirements for CAMTC certification are more stringent than the proposed City ordinance. If the City of Palo Alto adopted an ordinance that only CAMTC certified therapists work within the city approximately 50 percent of the current therapists would not be able to work until they gained the required certification. May 19, 2011 and May 26, 2011-Small Group Massage Therapist Meetings Staff met one on one with therapists representing large businesses, as well as sole- proprietorships. The meetings were held to discuss areas of contention and to review an updated draft of the ordinance. The topics of discussions included displaying photographs of the permit holders, appropriate closing times for establishments, and outcall issues. Final Draft changes Following the community meetings, the meeting with CAMTC, and the one on one meeting with massage therapists, staff re-visited several major portions of the draft ordinance. The ordinance was changed taking into consideration the concerns of the massage practitioners and business owners. The following changes were made: February 14, 2012 Page 9 of 12 (ID # 2287) ·Logbooks: Many cities require massage establishments to maintain client records reflecting type of service rendered and basic client contact information. The records are supposed to be made available for law enforcement inspection upon the complaint of criminal activity that may have occurred at the establishment, to aid in the investigation. The logbook mandate is a legal request from municipalities. In order to address privacy concerns, the proposed ordinance requires that client information be recorded in some manner; however the information would be made available to law enforcement personnel only pursuant to a court order. ·Education:The existing ordinance required 100 hours of education prior to permit issuance. That requirement is far below the 500 hours required of CAMTC certified therapists and well below the requirements of other comparable municipalities. The proposed ordinance requires 200 hours of education. A grace period of 18 months would be granted to previously permitted therapists to allow the therapists to meet the required additional education. The staff recommendation is acceptable to most members of the massage community. ·Definition: Staff recommends keeping the definition of “massage establishment” as follows; “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 or carried on massages, baths, or health treatments involving massage or baths, where massage is part of primary function of the business.Only one currently unpermitted establishment disagreed with this definition, contending that full body massage with clothing on did not fall under the category of a massage establishment. ·Wording: The massage community at large felt the wording in previous drafts was unclear in respect to differentiating between state certification and city permits. Staff made changes to the ordinance to clearly establish that state certified massage therapists and technicians were exempt from City permitting requirements. ·Ability to Deny Permit: In section 4.54.030, staff added the ability to deny permit issuance if a person had previously been revoked, suspended, or denied a permit from the CAMTC. No persons contested this addition. ·Photos:The original draft ordinance contained a provision mandating permit holders display their City massage technician permit with photograph at their place of work for clients to view (CAMTC certified persons must do this). Community members commented that they felt the photo requirement was unfair and that clients may see photos and choose a therapist based on their appearance. Staff agreed the establishments can meet this requirement of public display by maintaining a permit binder to be furnished upon client request. ·Outcall: Staff recommends that the City not issue permits to allow massage practitioners to perform “outcall massage.”. This is consistent with the current practices of many municipalities. The existing ordinance allowed outcall only with a doctor’s prescription. This exception rarely occurred and proved difficult for City staff to verify. Staff February 14, 2012 Page 10 of 12 (ID # 2287) recommends prohibiting outcall for all City-permitted therapists and allowing outcall for state-certified therapists in accordance with state law. Second Community Meeting-June 2, 2011 Staff held a second community meeting to address issues with the updated draft ordinance. Community members were able to review the draft prior to the meeting. Staff reviewed the areas of discussion and highlighted the changes. There was little discussion or questions after the review of the final draft. Options for Regulating Massage Staff has drafted a proposed ordinance that brings it into compliance with State Law. The City has several options on how it may regulate massage practice. Those options are: 1. Allow CAMTC certified workers and businesses only. The benefits of this approach would allow for consistency among workers and businesses as to rules and regulations. The City would be unable to regulate such workers and businesses differently than other professional services. In Palo Alto, 50 percent of persons operating as permitted massage therapists do not have state certification. Staff believes having a state certification only policy is unfair to current practitioners that have been working for years in the City without state certification. The three current establishments in Palo Alto are not state certified. Under existing state law, a worker would have had until January 1, 2012 to demonstrate that they have the equivalent experience and education to justify certification without meeting the 250-500 hour requirement from an approved school, pass the background process, and pay state fees. The massage community of Palo Alto was not in favor of this approach, as many persons would be unable remain working in the city due to the amount of time it takes to receive approved education and complete the state certification process. 2. Create a hybrid approach with one set of regulations for City permitted workers and businesses and a separate set of regulations for CAMTC certified workers and businesses. This allows the City to retain its authority over those workers and businesses that do not become state certified and allows the City to retain authority in limited areas over state certified workers and businesses. The disadvantage of this approach is that it is cumbersome, creates additional work, and causes potential confusion between the two processes. 3. Continue with the existing City process, with modification for state regulations, and exempt CAMTC certified workers and establishments from the City regulation. The benefit of this approach is that it is simple and involves no substantial change to existing city law, with the exception of the state-mandated changes. This allows for currently working therapists to continue working in Palo Alto as they have been, after obtaining a City permit. Recommendation February 14, 2012 Page 11 of 12 (ID # 2287) Staff recommends the adoption of Option #3. Staff recommends updating the existing ordinance to comply with state law. This is the best option for both the City and the therapists who work in Palo Alto. The community meetings provided the opportunity for the massage community to have input and voice concerns about the proposed changes to the ordinance. Those concerns were identified, vetted, and addressed in the follow-up community meetings and the one-on-one meetings with community members. Individual members of the massage community assisted in the final review of the proposed ordinance. The proposed ordinance was revised with consideration of the input from the meeting participants. The proposed ordinance recognizes the needs of the massage community and represents compromise by the City and the massage community. The proposed ordinance recognizes and allows the practice of massage therapy in the City of Palo Alto. The ordinance allows existing massage technicians and establishments to continue doing business, and provides a reasonable timeline for therapists to comply with the educational requirements of the ordinance. The intent of the ordinance is to ensure that those who offer massage services are qualified, trained, and conduct their work in a lawful and professional manner. Persons who choose to patronize the therapists within Palo Alto can have confidence that the therapists have successfully met standardized qualifications. The proposed ordinance is consistent with other local municipalities and State standards. The ordinance also allows greater flexibility for business persons to operate within the City in a safe and reasonable manner. The passage of the proposed ordinance will allow the City to resume consistent enforcement of massage practice within Palo Alto. Resource Impact The passage of the proposed ordinance will require considerable staff time to get all current therapists permitted and sole proprietorships and establishments permitted/inspected. The ordinance establishes a grace period of 18 months for educational requirements and 60 days for massage establishments to become compliant. The ordinance requires annual inspections by a Police Department staff member that can be completed within the existing job classification of Code Enforcement Officer and within the existing Police Department budget. Larry Perlin, from the Planning Department, was consulted and a building inspector will be notified of inspection times and days so they may send a representative when available. Staff costs will be recovered through the collection of permit fees. Attachments: ·Attachment A -PAMC 4.54 (PDF) ·Attachment B -Temp Permit (PDF) ·Attachment C -SB 731 (PDF) February 14, 2012 Page 12 of 12 (ID # 2287) ·Attachment D -B&P Code 10.5 (PDF) ·Attachment E -AB 619 (PDF) ·Attachment F -Proposed PAMC 4.54 (PDF) ·Attachment G -Other Cities'Fees (PDF) ·Attachment H -Letters to Council re Massage Ordinance 020812 (PDF) Prepared By:April Wagner, Police Lieutenant Department Head:Dennis Burns, Police Chief City Manager Approval: ____________________________________ James Keene, City Manager Attachment A Sections: Palo Alto Municipal Code Chapter 4.54 MASSAGE ESTABLISHMENTS 4.54.010 Purpose and intent. 4.54.020 Definitions. 4.54.030 Massage establishment license required. 4.54.040 Massage establishment license application fee. 4.54.050 Application for massage establishment license. 4.54.060 Massage technician permit required. 4.54.070 Massage technician application fee. 4.54.080 Application for massage technician permit. 4.54.090 Massage technician trainee. 4.54.100 Appeal. Page lof12 4.54.110 Massage establishment facilities and operations requirements. 4.54.120 Inspection by officials. 4.54.130 Business name. 4.54.140 Business location change. 4.54.150 Sale or transfer of massage establishment interest. 4.54.160 Display of permits, licenses. 4.54.170 Exemptions. 4.54.180 Grounds for denial, probation, and disciplinary action. 4.54.190 Hearing. 4.54.200 Application to existing establishments and technicians. http://www.amlegal.comlalpscripts/get-content.aspx 11/22/2011 Page 20f12 4.54.210 Application of other code provisions. 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. (Ord.2833 § 1 (part), 1974) 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 establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on massages, baths or health treatments involving massage or baths as the principal functions. (3) "Massage technician" 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. (4) "Recognized school of massage" means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage, which school or institution of learning requires a residence course of study of not fewer than seventy hours to be given in not more than three calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which 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." (5) "License" means the business license to operate a massage establishment as required by this chapter. (6) "Permit" means the permit to engage in the activities of a massage technician or a massage technician trainee as required by this chapter. http://www.amlegal.com/alpscriptsl get ~content.aspx 11/22/2011 Page 3 of 12 (7) "Person" means aJ1Y individual, firm, association, partnership, corporation, joint venture or combination of individuals. (Ord. 2833 § 1 (part), 1974) 4.54.030 Massage establishment license required. (a) It is unlawful for any person to engage in, conduct or carry on, in or upon any premises within the city the operation of massage establishment without the license obtained from the chief of police as required by this chapter. A massage establishment license 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 of this code; unless grounds for denial of such license 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 license; (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, 3l3.1, 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. (Ord. 3113 § 4, 1979: Ord. 2946 § 1, 1976: Ord. 2921 § 9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.040 Massage establishment license application fee. Any application for a license 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. A license to operate a massage establishment shall be renewed annually. The renewal fee shall be as set forth in the municipal fee schedule. (Ord. 2960 § 27, 1976: Ord.2921 § 1, 1976: Ord. 2833 § 1 (part), 1974) http://www.amlegal.comlalpscripts/get-content.aspx 11122/2011 Page 4 of 12 4.54.050 Application for massage establishment license. (a) Any application for a license to operate a massage establishment shall be made with the chief of police. Within thirty working days following receipt of a completed application, the chief of police shall either issue the pennit 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 therefor, 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 addition to the requirements of Chapter 4.04 and this section, any applicant shall furnish the following information: (1) 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; (2) Written proof that the applicant is at least eighteen years of age; (3) Applicant's height, weight, color of eyes and hair; (4) The applicant shall allow the police officer processing the application to take photographs of the applicant; (5) Business, occupation or employment history ofthe applicant for the three years immediately preceding the date of the application; (6) 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 of the stock of the corporation. If the 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; (7) The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the employment, other than any person licensed 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 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 licensee 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; (8) Such other information as may be deemed necessary by the chief of police. (Ord.2946 § 2, 1976: Ord. 2921 § 9, 1976: Ord. 2833 § 1 (part), 1974) http://www.amlegal.comlalpscripts/get-content.aspx 11122/2011 Page 5 of 12 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. A massage technician permit shall be issued to any person who has fulfilled the requirements of Section 4.54.080, and all other applicable provisions of this code; 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 license; (2) The applicant has, within five years immediately preceding the date of the flling 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 of this chapter, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage establishments or massage technicians. (Ord. 3113 § 5, 1979: Ord. 2921 §§ 2, 9, 1976: Ord. 2833 § 1 (part), 1974) 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 license to operate a massage establishment and who desires to act as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. (Ord.2960 § 28,1976: Ord. 2921 § 3,1976: Ord. 2833 § 1 (part), 1974) 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, 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. The chief 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 information: http://www.arnlegal.com/alpscripts/ get -content.aspx 1112212011 Page 6 of 12 (1) Name, residence address and telephone number; (2) Social security number and drivds license number, if any; (3) Applicant's weight, height, color of hair and eyes; (4) The applicant shall furnish a recent photograph of applicant to the police department official who processes the application; (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 the applicant showing the applicant has completed not fewer than seventy hours of instruction, or written and verified proof that applicant has had at least five hundred hours' experience in the profession, work and method of massage as of the effective date of the ordinance codified in this chapter. (Ord. 2921 §§ 4, 9, 1976: Ord. 2833 § 1 (part) 1974) 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, 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 the requirements of Section 4.54.080 and who produces written proof that the applicant is currently emolled in a recognized school of massage, as defined in this chapter; of the date the applicant emolled in the recognized school of massage; and the scheduled date of graduation; and that the applicant has completed 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 licensed 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 ofthis 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 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 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. http://www.amlegal.com/alpscripts/get-content.aspx 11122/2011 Page 7 of 12 The trainee permit shall allow the student to work 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; provided, however, no licensed massage technician shall be permitted to supervise more than two persons issued a trainee permit. The trainee permit shall expire three months from the date of issuance and shall not be renewed unless good cause is shown by the applicant for such renewal. 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. (Ord. 2960 § 29, 1976: Ord. 2921 §§ 5,9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.100 Appeal. In the event a permit or license application has been denied, the applicant shall proceed pursuant to the appeal and hearing provision in Chapter 4.04. (Ord. 2833 § 1 (part), 1974) 4.54.110 Massage establishment facilities and operations requirements. (a) All massage establishments shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (2) A minimum of one tub or shower, and 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. (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. http://www.amlegal.com/alpscripts/ get -content.aspx 11122/2011 Page 8 of12 (7) All lavatories or wash basins shall be provided with hot and cold running water, soap and single-service towels in wall-mounted dispensers. (8) Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patron shall be available for the protection of the valuables of the patrons. (9) Every portion of a massage establishment, including appliances, apparatus and personnel, shall be kept clean and operated in a sanitary condition. (10) All massage establishments shall be provided with 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 fust been laundered. Heavy white paper may be substituted for sheets; provided, that such paper is used once for each person and then discarded into a sanitary receptacle. (11) 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 and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use. (12) 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. (13) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof materiaL (14) (A) To protect patrons from potential health and sanitary hazards, all employees, massage technicians and massage technician trainees shall be clean 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 whep 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. (15) Each service offered, the price thereof, and the minimum length of time such service shall be performed shall be posted in a conspicuous public location in each massage establishment. All letters and numbers shall be capitals, and not less than one-half inch in height. (16) (A) Massage establishments shall close and remain closed from eleven p.m. to nine 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 for the 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 of this chapter; http://www.am1egal.comlalpscripts/get-content.aspx 1112212011 Page 9 of 12 (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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal ofthe underlying license 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 4.54.11 0(a)(16)(B). (17) No massage establishment shall be allowed in the following locations: (A) Within two hundred fifty feet of the exterior property limits of any public or private elementary school, junior high school or high school; (B) Within two hundred fifty feet of the exterior limits of any district where residential use is the principal permitted use, including all R and RM districts, O-S districts, and any P-C or P-F districts where the principal use permitted or maintained is residential; or (C) Within twelve hundred feet of the ex-terior property limits of any other premises lawfully occupied by a massage establish-ment, by any establishment subject to the provisions of Chapter 4.55, any cardroom or hot tub/sauna establishment. For the purpose of determining compliance with this standard, as to, between and with respect to establishments lawfully in operation on the effective date of this section, priority between such existing establishments shall be assigned in accordance with the dates upon which said establishments commenced such lawful operations. All massage establishments lawfully in operation on the effective date of this section shall within sixty days of said date apply to the chief of police for a determination as to compliance with the provisions of this section. Said application shall be in such form as prescribed by the chief of police. Any massage establishment legally existing on the effective date of this subsection and which is not in compliance with the provisions of this subsection shall comply with said provisions on or before May 24, 1987; provided, however, that any such establishment which intends to in any way transfer ownership or alter or change the nature of any such massage establishment on or after the effective date of this subsection shall comply with the provisions of this subsection prior to such transfer, alteration or change. Any such use which at the expiration of said period is not in compliance with the provisions of this subsection shall at that time discontinue and abate its operation. Any massage establishment lawfully in operation upon the effective date of this subsection failing to comply with the provisions of this subsection shall be issued a limited-term license in lieu of its current license, containing a statement on its face reciting such noncompliance and the date by which compliance must be accomplished, and that said license shall not be renewed beyond said date. All distances referred to in this subsection shall be measured between the closest points on the http://www.am1egal.comlalpscripts/get-content.aspx 11122/2011 Page 10 of12 exterior property lines or area boundaries of the parcels or areas involved~ except that when a massage establishment subject to the provisions of this section occupies one unit of a multi-unit structure located on a single parcel~ distances shall be measured from the exterior boundaries of the unit so occupied. (18) Outcall Prohibited. No person shall engage in any of the services permitted under this chapter at any place other than an establishment licensed pursuant to Chapter 4.54, unless the patron possesses and presents a valid prescription or other writing from a licensed physician to the effect that the patron of such services cannot be treated at a licensed massage establishment. A record of every such prescription or other writing shall be obtained and kept by the person rendering the services for a period of one year. Such record shall show the name and address of the doctor, the date, and any prescription number. (Ord. 4642 § 3, 2000: Ord. 3592 § 1, 1985: Ord. 3113 § 6, 1979: Ord. 3095 § I, 1978: Ord. 2946 § 3, 1976: Ord. 2921 § 6, 1976: Ord. 2833 § 1 (part), 1974) 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 time 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. (Ord.2833 § 1 (part), 1974) 4.54.130 Business name. No person licensed to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the license. (Ord. 2833 § 1 (part), 1974) 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 oflocation 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. (Ord. 2960 § 30, 1976: Ord. 2921 §§ 7, 9, 1976: Ord. 2833 § 1 (part), 1974) 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 license, 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 a result of such sale or transfer, and if such person http://www.amlegal.comlalpscripts/get-content.aspx 1112212011 Page 11 of12 satisfies the requirements relating to massage establishment license applicants, the existing license 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 each such sale or transfer. (Ord. 2960 § 31,1976: Ord. 2921 §§ 8,9,1976: Ord. 2833 § 1 (part), 1974) 4.54.160 Display of permits, licenses. The owner or operator of a massage establishment shall display the massage establishment license 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. Passport-size photographs of the licensee and permittees shall be affixed to the respective license and permits on display pursuant to this section. Home addresses of massage technicians and massage technician trainees need not be displayed. (Ord. 2833 § 1 (part), 1974) 4.54.170 Exemptions~ (a) 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 licensed to practice their respective professions in the state of California; . (2) Nurses registered under the laws of the state of California; (3) Trainers of any amateur, semiprofessional or professional athlete or athletic team; (4) Barbers and beauticians who are duly licensed under the laws of the state of California. (Ord. 2833 § 1 (part), 1974) 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 licenses and permits required under this chapter. Any circumstances constituting grounds for denial shall also constitute grounds for revocation, suspension or disciplinary action. (Ord. 3113 § 7,1979: Ord. 2833 § 1 (part), 1974) 4.54.190 Hearing. Any licensee or permittee whose license or permit has been suspended or revoked shall proceed pursuant to the appeal and hearing provisions of Chapter 4.04. http://www.amlegal.com/alpscriptslget-content.aspx 1112212011 Page 12 of 12 (Ord. 2833 § 1 (part)~ 1974) 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 comply with all application and other requirements within thirty days following the effective date of this chapter. (Ord. 2833 § 1 (part)~ 1974) 4.54.210 Application of other code provisions. Chapter 4.04 shall apply to the subject matter of this chapter in all respects, including those not specifically mentioned in this chapter. (Ord. 2833 § 1 (part), 1974) Pi~~I~im~G This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing Corporation provides these documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. For further information regarding the official version of any of this Code of Ordinances or other documents posted on this site, please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588. © 2011 American Legal Publishing Corporation techsupport@.~rnLegaJ.com 1.800.445.5588. http://www.amlegal.comlalpscriptslget-content.aspx 11122/2011 Attachment B January 25, 2011 Ideal Health Chiropractic 744 San Antonio Rd., Ste. 10 Palo Alto, California 94303 Dear Mr. ~i!y 9£ Palo Alto Police Department The normal permit renewal process for massage permits has been suspended due to pending changes to Palo Alto's massage ordinance. This letter will serve as your temporary massage technician permit. This permit will allow you to provide massage as an accessory service at Ideal Health Chiropractic, located at 744 San Antonio Rd., Ste. 10, Palo Alto, CA 94303, provided total massage services (other than those based on a diagnosed condition and completed within the scope of a State issued license) do not exceed 25% of the businesses overall activity. It will remain valid until after a new substantially modified massage code is enacted. This temporary permit will terminate at such time as the future massage code indicates as the date certain by which all permittees must have renewed their permits under the authority of the reenacted massage code. Please retain this permit. Until such time as a revised massage ordinance takes effect, massage will continue to be governed by Palo Alto's current Municipal Code Chapter 4.54. You will t;>e advised of meeting dates as the proposed ordinance moves forward. Sincerely, Heather Johnson Code Enforcement Officer Palo Alto Police Department 275 Forest Avenue Palo Alto, CA 94301 Direct: (650) 329-2147 Fax: (650) 326-8819 Email: heather.johnson@cityofpaloalto.org Website: www.city.palo-alto.ca.us/ Cc: Dr. Fax: Printed with soy-based inks on 100% recycled paper processed without chlorine 275 Forest Avenue Palo Alto, CA 94301 650.329.2406 650.329.2565 fax 650.617.3120 Administration fax Attachment C Senate Bill No. 731 CHAPTER 384 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. [Approved by Governor September 27, 2008. Filed with Secretary of State September 27, 2008.J 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 alTested for, and charged with, specified crimes. The bill would make it an unfair business practice for a person to state, advertise, or represent that he or she is certified or licensed by a governmental agency as a massage therapist or practitioner, or to make other false representations, as specified. The bill would prohibit a city, county, or city and county from enacting certain ordinances regulating the practice of massage by a certificate holder, as specified. The bill would make its provisions subject to review by the Joint Committee on Boards, Commissions, and Consumer Protection. The bill would repeal these provisions on January 1,2016. 90 Ch.384 2- The people of the State of California do enact asfollows: SECTION 1. It is the intent of this act to create a voluntary certification for the massage therapy profession that will enable consumers to easily identify credible certified massage therapists; assure that certified massage therapists have completed sufficient training at approved schools; phase in increased education and training standards consistent with other states; assure that massage therapy can no longer be used as a subterfuge to violate subdivision (a) or (b) of Section 647 of the Penal Code; and to provide a self-funded nonprofit oversight body to approve certification and education requirements for massage therapists. SEC. 2. Chapter 10.5 (commencing with Section 4600) is added to Division 2 of the Business and Professions Code, to read: CHAPTER 10.5. MASSAGE THERAPISTS 4600. As used in this chapter, the following terms shall have the following meanings: (a) "Approved school" or "approved massage school" means a facility that meets minimum standards for training and curriculum in massage and related subjects and that is approved by any of the following: (1) The Bureau for Private Postsecondary and Vocational Education pursuant to former Section 94739 of the Education Code prior to July 1, 2007, and as of the date on which an applicant met the requirements of paragraph (2) of subdivision (b) or subparagraph (A) of paragraph (2) of subdivision (c) of Section 4601. (2) The Department of Consumer Affairs. (3) An institution accredited by the Accrediting Commission for Senior Colleges and Universities or the Accrediting Commission for Community and Junior Colleges of the Western Association of Schools and Colleges and that is one of the following: (A) A public institution. (B) An institution incorporated and lawfully operating as a nonprofit public benefit corporation 'pursuant to Part 2 (commencing with Section 511 0) 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 of the criteria in subparagraph (B) that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 511 0) 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. 90 -3 Ch.384 (5) A school of equal or greater training that is approved by the corresponding agency in another state or accredited by an agency recognized by the United States Department of Education. (b) "Compensation" means the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. (c) "Massage therapist," "bodyworker," "bodywork therapist," or "massage and bodywork therapist" means a person who is certified by the Massage Therapy Organization under subdivision (c) of Section 460 I and who administers massage for compensation. (d) "Massage practitioner," "bodywork practitioner," or "massage and bodywork practitioner" means a person who is certified by the Massage Therapy Organization under subdivision (b) of Section 460 I 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 50 I (c )(3) ofTitle 26 of the United States Code. The organization may commence activities as authorized by this section once it has submitted a request to the Internal Revenue Service seeking this exemption. (f) "Registered school" means a facility that meets minimum standards for training and curriculum in massage and related subjects and that either was recognized by the Bureau for Private Postsecondary and Vocational Education pursuant to Section 94931 of the Education Code prior to July 1,2007, and as of the date on which an applicant met the requirements of paragraph (2) of subdivision (b) or subparagraph (A) of paragraph (2) of subdivision (c) of Section 460 I, or is recognized by the Department of Consumer Affairs, by an institution accredited by the senior commission or the junior commission of the Western Association of Schools and Colleges as defined in paragraph (2) of subdivision (a) of Section 4600, by a college or university of the state higher education system as defined in Section 100850 of the Educatiol1 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 oftwo 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 persons: 90 [ I 11 I I I Ch.384 4- (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 other professional directors as determined by the board. (2) The initial board of directors shall establish the organization, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the organization. The initial board of directors, in its discretion, may immediately undertake to issue the certificates authorized by this chapter after adopting the necessary bylaws or other rules, or may establish by adoption of bylaws the pennanent governing structure prior to issuing certificates. (c) The board of directors shall establish fees reasonably related to the cost of providing services and carrying out its ongoing responsibilities and duties. Initial and renewal fees shall be established by the board of directors annually, (d) The meetings of the organization shall be subject to the rules of the Bagley-Keene Open Meetings Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Goverrunent Code). , 4601. (a) The organization shall issue a certificate under this chapter to an applicant who satisfies the requirements of this chapter. (b) (1) In order to obtain certification as a massage practitioner, an applicant shall submit a written application and provide the organization with satisfactory evidence that he or she meets all of the following requirements: (A) The applicant is 18 years of age or older, (B) The applicant has sllccessfully 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, 90 -5-Ch.384 (C) All fees required by the organization have been paid. (2) New certificates shall not be issued pursuant to this subdivision after December 31,201 S. 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, an applicant shall submit a written application and provide the organization with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant satisfies at least one of the following requirements: (A) He or she has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours. Of this 500 hours, a minimum of250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved or registered schools, or from continuing education providers approved by, or registered with, the organization or the Department of Consumer Affairs. After December 31, 2015, applicants may only satisfy the curricula in massage and related subjects from approved schools. (B) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the board. The successful completion of this examination may have been accomplished before the date the organization is authorized by this chapter to begin issuing certificates. (3) All fees required by the organization have been paid. (d) The organization shall issue a certificate to an applicant who meets the other qualifications of this chapter and holds a current and valid registration, certification, or license from any other state whose licensure requirements meet or exceed those defined within this chapter. The organization shall have discretion to give credit for comparable academic work completed by an applicant in a program outside of California. ( e) An applicant applying for a massage therapist or massage practitioner certificate shall file with the organization a written application provided by the organization, showing to the satisfaction of the organization that he or she meets all of the requirements of this chapter. (f) Any certification issued under this chapter shall be subject to renewal every two years in a manner prescribed by the organization, and shall expire unless renewed in that manner. The organization may provide for the late renewal of a license. (g) (1) The organization shall have the responsibility to detennine that the school or schools from which an applicant has obtained the education required by this chapter meet the requirements of this chapter. If the organization has any reason to question whether or not the applicant received the education that is required by this chapter from the school or schools that the applicant is claiming, the organization shall investigate the facts to 90 Ch.384 -6- determine that the applicant received the required education prior to issuing a certificate, (2) For purposes of paragraph (1) and any otheq)rovision ofthis chapter for which the organization is authorized to receive factual information as a condition of taking any action, the organization shall have the authority to conduct oral interviews of the applicant and others or to make any investigation deemed necessary to establish that the information received is accurate and satisfies any criteria established by this chapter, 4601.2, No certificates shall be issued by the organization pursuant to this chapter prior to September 1, 2009, 4601.3, (a) Prior to issuing a certificate to the applicant or designating a custodian of records, the organization shall require the applicant or the custodian of records candidate to submit fingerprint images in a form consistent with the requirements of this section, The organization shall submit the fingerprint images and related information to the Department of Justice for the purpose of obtaining information as to the existence and nature of a record of state and federal level convictions and of state and federal level arrests for which the Department of Justice establishes that the applicant or candidate was released on bailor on his or her own recognizance pending triaL Requests for federal level criminal offender record infonnation received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice, The Department of Justice shall review the information returned from the Federal Bureau ofInvestigation, 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 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 sllbmitted 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 investi gation process delineated in Section 4601,3, 4602. (a) The organization may discipline a certificate holder by any, or a combination, of the following methods: (1) Placing the certificate holder on probation. (2) Suspending the certificate and the rights conferred by this chapter on a certificate holder for a period not to exceed one year, (3) Revoking the certificate. 90 -7 Ch.384 (4) Suspending or staying the disciplinary order, or portions of it, with or without conditions. (5) Taking other action as the organization, as authorized by this chapter or its bylaws, deems proper. (b) The organization may issue an initial certificate on probation, with specific terms and conditions, to any applicant. (c) (1) Notwithstanding any other provision of law, if the organization receives notice that a certificate holder has been arrested and charges have been filed by the appropriate prosecuting agency against the certificate holder alleging a violation of subdivision (b) of Section 647 of the Penal Code or any other offense described in subdivision (h) of Section 4603, the organization shall take all of the following actions: (A) Immediately suspend, on an interim basis, the certificate of that certificate ho lder. (B) Notify the certificate holder within 10 days at the address last filed with the organization that the certificate has been suspended, and the reason for the suspension. (C) Notify any business within 10 days that the organization has in its records as employing the certificate holder that the certificate has been suspended. (2) Upon notice to the organization that the charges described in paragraph (1) have resulted in a conviction, the suspended certificate shall become subject to permanent revocation. The organization shall provide notice to the certificate holder within 10 days that it has evidence of a valid record of conviction and that the certificate will be revoked unless the certificate holder provides evidence within 15 days that the conviction is either invalid or that the information is otherwise erroneous. (3) Upon notice that the charges have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the certificate shall be immediately reinstated and the certificate holder and any business that received notice pursuant to subparagraph (C) of paragraph (1) shall be notified of the reinstatement within 10 days. 4602.5. (a) Upon the request of any law enforcement agency or any other representative of a local government agency with responsibility for regulating, or administering a local ordinance relating to, massage or massage businesses, the organization shall provide information concerning a certificate holder, including, but not limited to, the current status of the certificate, any history of disciplinary actions taken against the certificate holder, the home and work addresses of the certificate holder, and any other 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. 90 Ch.384 -8 4603. It is a violation of this chapter for a certificate holder to commit, and the organization may deny an application for a certificate or discipline a certificate holder for, any of the following: (a) Unprofessional conduct, including, but not limited to, denial of licensure, revocation, suspension, restriction, or any other disciplinary action against a certificate holder by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence of these actions. (b) Procuring a certificate by fraud, misrepresentation, or mistake. (c) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision or term of this chapter or any rule or bylaw adopted by the organization. (d) Conviction of any felony, or conviction of a misdemeanor that is substantially related to the qualifications or duties of a certificate holder, in which event the record of the conviction shall be conclusive evidence of the crime. (e) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to under this chapter for the issuance of a certificate. (f) Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a certificate. (g) Committing any fraudulent, dishonest, or corrupt act that 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 procedure that conforms to the requirements of subdivision (c) is fair and reasonable, but a court may also find other procedures to be fair and reasonable when the full circumstances of the certificate denial or certificate holder discipline are considered. (c) A procedure is fair and reasonable when the procedures in subdivision (c) of Section 4602 are followed, or if all of the following apply: (1) The provisions of the procedure have been set forth in the articles or bylaws, or copies of those provisions are sent mmually 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. (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 90 9 Ch.384 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. Ifthe action is successful, the court may order any relief, including reinstatement, that it finds equitable under the circumstances. (1) This section governs only the procedures for certificate denial or certificate holder discipline and not the substantive grounds therefor. A certificate denial or certificate holder discipline based upon substantive grounds that violates contractual or other rights of the member or is otherwise unlawful is not made valid by compliance with this section. (g) A certificate applicant or certificate holder who is denied or disciplined shall be liable for any charges incurred, services or benefits actually rendered, dues, assessments, or fees incurred before the certificate denial or certificate holder discipline or arising from contract or otherwise. 4603.5. It shall be the responsibility of any certificate holder to notify the organization of his or her home address, as well as the address of any business establishment where he or she regularly works as a massage therapist or massage practitioner, whether as an employee or as an independent contractor. A certificate holder shall notify the organization within 30 days of changing either his or her home address or the address of the business establishment where he or she regularly works as a massage therapist or massage practitioner. 4604. (a) Notwithstanding Section 4601, the organization may grant a massage practitioner certificate to any person who applies on or before January 1, 2012, with one of the following: (1) A current valid massage permit or license from a California city, county, or city and county and documentation evidencing that the person has completed at least a 100-hour course in massage at a state-approved or registered school, or out-of-state school recognized by the organization as providing comparable education, has been practicing for at least three years, and has provided at least 1,000 hours of massage to members of the public for compensation. (2) Documentation evidencing that the person has completed at least a 100-hour course in massage at a state-approved or registered school, or out-of-state school recognized by the organization as providing comparable education, has been practicing for at least three years, and has provided at least 1,750 hours of massage to members of the public for compensation. For purposes of this subdivision, evidence of practice shall include either of the following: (A) A W-2 form or employer's affidavit containing the dates of the applicant's employment 90 Ch.384 -10- (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 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 ofthis 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. 90 I -11 Ch.384 4605. It is an unfair business practice for any person to state or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that he or she is certified, registered, or licensed by a governmental agency as a massage therapist or massage practitioner. 4606. It is an unfair business practice for any person to hold oneself out or use the title of "certified massage therapist" or "certified massage practitioner" or any other term, such as "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 person acts as a massage practitioner or massage therapist in violation ofthe 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, pyrmit, or other authorization, except as provided in this section, to engage in that practice. (2) Notwithstanding any other provision of law, a city, county, or city and county shall not enact an ordinance that requires a license, permit, or other authorization to practice massage by an individual who is certified pursuant to this chapter and 'who is practicing consistent with the qualifications established by his or her certification. No provision of any ordinance enacted by a city, county, or city and county that is in effect before the effective date of this chapter, and that requires a license, permit, or other authorization to practice massage, may be enforced against an individual who is certified pursuant to this chapter. (3) Except as provided in subdivision (b), nothing in this section shall be interpreted to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, and reasonable health and safety requirements for massage establishments or businesses. Subdivision (b) shall not apply to any massage establishment or business that employs or uses persons to provide massage services who are not certified pursuant to this chapter. (b) (1) This subdivision shall apply only to massage establishments or businesses that are sole proprietorships, where the sole proprietor is certified pursuant to this chapter, and to massage establishments or businesses that employ or use only persons ce11ified pursuant to this chapter to provide massage services. For purposes ofthis subdivision, a sole proprietorship is 90 Ch.384 -12 a business where the owner is the only person employed by that business to provide massage services. (2) (A) Any massage establishment or business described in paragraph (1) shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified. (B) Nothing in this section shall preclude a city, county, or city and county from induding 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 licensing fee sufficient to cover the costs of the business licensing activities established by a local ordinance described in this section. (4) Nothing in this section shall prohibit a city, county, or city and county from adopting land use and zoning requirements applicable to massage establishments or businesses, provided that these requirements shall be no different than the requirements that are 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 is no staff available to assure security for clients and massage staff who are behind closed doors, or (B) require windows that provide a view into massage rooms that interfere with the privacy of clients of the massage business. (6) A city, county, or city and county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to, requirements for cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services, provided that nothing in this paragraph shall be interpreted to authorize adoption of local ordinances that impose additional qualifications, such as medical examinations, background checks, or other criteria, upon any person certified pursuant to this chapter. (7) Nothing in this section shall preclude a city, county, or city and county from doing any of the following: (A) Requiring an applicant for a business license to operate a massage business or establishment to fill out an application that requests the applicant to provide relevant information. (B) Making reasonable investigations into the information so provided. (C) Denying or restricting a business license ifthe 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, 90 13 Cb.384 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. (2) Requires an owner or operator to notify the city, county, or city and county of any intention to rename, change. management, or convey the business to another person. 4613. (a) Nothing in this chapter shall restrict or limit in any way the authority of a city, county, or city and county to adopt a local ordinance governing any person who is not certified pursuant to this chapter. (b) Nothing in this chapter is intended to affect the practice rights of any person licensed by the state to practice or perform any functions or services pursuant to that license. 4615. This chapter shall be subject to the review required by Division 1.2 (commencing with Section 473). 4620. This chapter shall remain in effect only until January 1,2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. o 90 I Attachment D Ii DIVISON 2 OF THE BUSINESS AND PROFESSIONS CODE. CHAPTER 10.5. SECTION 460Q GUIDE DEVELOPED BY THE CALIFORNIA MASSAGE THERAPY COUNCIL 4600 ....................................................................................... Meanings of Terms 4600.S ............................................... Massage Therapy Organization (CAMTC) 4601 ............................................................... .Issuance of Massage Certificates 4601.2.., ................................................................................. September 1, 2009 4601.3 .................................................................................. OOJ and FBI Reports 4602 .................................................... CAMTC Disciplinary & Denial Authority 4602.5 .. " ................................ CAMTC & Municipalities Information Exchange 4603 ................................................ Causes for Denials or Disciplinary Actions 4603.5 ............................................................... Change of Address Notification 4604 ......................................................... Grandfathering Prior to January 1, 2012 4605 .............................................................................. Unfair Business Practice 4606 .................................................................................. · .... CMT and CMPTitle 4607 ....................................................... " ................................... Court Restraint 4608 ..................................................................... Freedom to Provide Services 4612 (a) (1 & 2) ......................................... Exemption from Local Ordinances 4612 (a) (3} ..................................................................... Municipalities' Rights 4612 (b) (1) ............................................................ Establishment Exemptions 4612 (2) (A) .................................................. Proof of Certificates on Premises 4612 (2) (B) .................................................. Register with Local Municipality 4612 (3) ............................................................................ Business License Fee 4612 (4) ............................................................ Uniform Land Use and Zoning 4612 (S) ........................................................................ Uniform Building Code 4612 (6) ....................................... Reasonable Health & Safety Requirements 4612 (7) (A, B, & CJ ................... Municipal Business License & Investigation 4612 (7) (c) ...................................... Owner Responsible for Conduct of Staff 4612 (7) (d) (1) .................................... : ............ Municipality Right to Inspect 4612 (7) (d) (2) ................... Owner Notification to Municipality of Changes 4613 ..................................... Municipal Governance of Non-Certified Person 4615 ....................................................... 11 .............. Chapter Subj ect to Review 4620 ............................................................................ Sunset January 1, 2016 California Massage Therapy Council \ cg,mt~..@aJ.1.'llQ.:~:)Up~.us I (916) 669-5336\ www.camtc.org REGULATION OF MASSAGE BUSINESSES UNDER B&P SECTION 4600 (SB 731) Cities still have some authority over massage businesses even if all of the therapists are certified -it gives the cities information about the true owners, provides for business licensing, and gives the cities a means of confirming that the therapists are indeed certified .. On the zoning and land use side, it puts massage businesses on par with other businesses that provide personal and professional services. The key lies in Section 4612. Section 4612(a) provides that local authorities can't require a license or permit to practice massage by an individual already certified by the CAMTC. A city or county can still adopt a local ordinance governing zoning, business licensing, and reasonable health and safety requirements for massage establishments and massage businesses. But, Section 4612 provides some important rules of the road when a business has taken the time to hire only therapists certified by the CAMTC. The rules go both ways -the establishment must do some things and the local authorities must give on some things. So, here it is. If an establishment or business employs ONLY persons certified by the CAMTC, the following applies: • Section 4612 (b) 2 (A) The establishmentlbusiness must maintain on its premises, and available to local authorities, evidence demonstrating that all persons providing massage are certified by the CAMTC. • Section 4612 (b) 2 (B) The city or county can require the establishmentlbusiness to file copies or other evidence of certificates held by persons providing massage. • Section 4612(b)3 The city or county can charge an establishmentlbusiness a business licensing fee to cover the costs of business licensing activities described here. Section 4612(b)4 The city or county can have land use and zoning requirements applicable to massage establishments as long as the requirements are no different than requirements that are uniformly applicable to other professional or personal service businesses. .. Section 4612(b)5 Local building code or facility requirements applicable to establishments can't require additional restrooms, shower, or other facilities that aren't uniformly applicable to other professional or personal service businesses -nor can the requirements be such that there are unlocked doors when no staff is available to assure security for clients and employees or require windows with a view into massage rooms. Page 10f2 Section 4612(b)6 The city or county can adopt reasonable health and safety requirements, including requirements for cleanliness of rooms, towels and linens, and reasonable attire and personal hygiene requirements for therapists (but can't interpret this to authorize medical exams, background checks or other criteria on CAMTC .. certified therapists) .. • Section 4612(b) 7 (A-C) The city or county CAN still require an application for a business license to operate a massage business or massage establishment and can require completion of an application requesting relevant information.. The city or county can make reasonable investigation into the information so provided and deny or restrict a business license if the applicant provided materially false information. • Section 4612 (c) provides that a massage establishment owner or operator is responsible for the conduct of all employees or independent contractors on its premises. A local ordinance can authorize suspension, revocation or other restriction of a business license issued to a massage business/establishment if a violation of the state law or local ordinance occurs on the premises. San Rafael is requiring a "certificate of exemption" for massage businesses in which all therapists are CAMTC certified. If illicit activities occur on the premises, the· owner, who is held responsible, can lose the certificate. Once the certificate is revoked, the business is subject to all establishment regulations required of non-exempt massage businesses. This makes it easier to close the business than red light abatement. Cotati is proposing a "zoning waiver" which will provide the same type of protection for the city. Pacifica requires all CAMTC certified massage therapists to register with the city .. •. CMT's and CMP' s are required to notify the CAMTC within 30 days of any change of work or home status .. Once the information is received, notice goes out to the registered city contact. Page 2of2 ., . .~ CALIFORN IA ~~ tv-\r\.sS.I\G!: THERAPY COUNCIL MEETS STANDARDS CURRENTLY ESTABLISHED BY CITIES AND COUNTIES AND ALSO BENEFITS CITIES AND COUNTIES: I. Meets Standards Established by Cities and Counties: • • • • • • • • Applicants for state certification undergo criminal background checks including fingerprints. (Section 4601 .3(a». CAMTC is mandated to request subsequent arrest notification service from the Department of Justice for all applicants for licensure for whom fmgerprints are submitted. (Section 4601.3(d». CAMTC is authorized to investigate the education of applicants, including their certificates of completion (transcripts), and to reject those it determines to be fraudulent. CAMTC may also request additional information regarding an applicant's education if a transcript from a particular school is not deemed sufficient proof of adequate education.. (Section 4601(g)(1) and (2». CAMTC is authorized to discipline certificate holders through probation, suspension, revocation, or other means it deems proper. (Section 4601(a». CAMTC is required to permanently revoke the certificate of anyone violating subdivision (b) of Section 647 of the Penal Code of any offense described in subdivision (h) of Section 4603. The law requires the CAMTC to immediately suspend the certificate, notify the certificate holder and any business employing the certificate holder of such suspension. Upon notice that the charges have resulted in a conviction, the CAMTC has authority to revoke the certificate. (Section 4602(c». CAMTC is authorized to deny or revoke certificates for 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. (Section 4603(a». CAMTC may also deny or revoke a certificate for the following: procuring a certificate by fraud, misrepresentation, or mistake; 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 the law or any rule or bylaw adopted by the organization; 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; impersonating an applicant or acting as a proxy for an applicant in any examination referred to under the law for the issuance of a certificate; impersonating a certified pmctitioner or therapist, or permitting or allowing an uncertified person to use a certificate; committing any fraudulent, dishonest, or COlTIlpt act that is substantially related to the qualifications or duties of a certificate holder; committing any act punishable as a sexually related crime. (Section 4603(a)-(h)). It is an unfair business practice to state that one is certified, registered or licensed by a governmental agency (the CAMTC is a private not-for-profit with legislative oversight) as a massage therapist or practitioner. (Section 4605). 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 as "licensed," "registered," or "CMT," that implies or suggests that the person is certified as a massage therapist or practitioner without meeting the requirements of the law. (Section 4606). Page 1 of2 II. Allows Cities and Counties to Know Who is Practicing in Their Jurisdiction: • • • Section 4600 gives CAMTC broad authority to share information with local authorities. The CAMTC is authorized to provide to local authorities information concerning a certificate holder, including but not limited to, the current status of the certificate holder, address of the certificate holder (home and work), history of disciplinary actions against the certificate holder (including revocation), and any other information necessary to verify facts relevant to administering a local ordinance (Section 4602.5(a». CAMTC must also accept information provided by local authorities, and has a responsibility to review information received and take action warranted by that information. (Section 4602.5(b». CAMTC is required to request subsequent arrest notification service from the Department of Justice for all applicants for licensure. (Section 4601.3(d». CAMTC can share this information with local authorities, as stated above. In. Important Authority Retained by Cities and Counties under SECTION 4600 • Cities and counties retain authority over any person not certified pursuant to Section 460'0. (Section 4613(a». • • • • • • • • Section 4600 specifies that the superior court in and for the county in which any person acts as a massage practitioner or massage therapist in violation ofthe provisions of the law, 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) ofTitle 7 of Part 2 of the Code of Civil Procedure. (Section 4607). A city or county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to: (Section 4612(b)(6» . .( Cleanliness of rooms .( Cleanliness of towels and linens ./ Reasonable attire and personal hygiene requirements A city or cOlmty may require an applicant for a business license to operate a massage establishment to fill out an application providing relevant infonnation and make reasonable investigation into the information provided. (Section 4612(b )(7)). Local authorities can deny or restrict a business license if the applicant has provided materially false information (Section 4612(b )(7). The owner/operator of a massage establishment is responsible for the conduct of all employees or independent contractors working on the premises. Local authorities can still suspend, revoke or otherwise restrict the license issued to a massage establishment for violations of Section 4600 or local ordinances. (Section 4612(c». Local authorities may have and enforce an ordinance that is applicable to massage businesses or establishments that provides duly authorized officials of the city or county the right to conduct reasonable inspections during regular business hours, to ensure compliance with the law, the local ordinance, or other applicable fire and health and safety requirements. Such ordinances may require an owner or operator to notify the city or county of any intention to rename, change management, or convey the business to another person. (Section 4612( d». Local authorities may require a massage establishment to maintain on its premises for review evidence demonstrating that all persons providing massage services are certified. A local authority may require a business to file copies or provide other evidence of the certificates held by persons providing massage services at the business. Section 4612(b)(2)(A)-(B). Cities and counties may adopt land use and zoning requirements applicable to massage establishments provided that the requirements are no different than those uniformly applied to other professional or personal services businesses. (Section 4612(b)«4». Page 2 of2 CAMTC Review Process Professional Standards Division Application Sent to P5D for Review P5D Reviews and Makes a Factual Finding Evidence Standard is No CALIFORNIA. MASSAGE T.HERAPY COUNCIL www.camtc.org More Probable rhan Not >-----------------., Yes Memo to Coun sel Drafted by P5D Proposed Denial Letmr Sent by Counsel to Applicant Hearing Requested (0131 or Written) P5D Holds Denial Hearing Proposed Denial is Upheld Final Letter of Denial is 5ent by Counsel Applicant May Reapply After One Year No No No Denial Automatically Effective Notify 5taff of Denial Return to Staff for Processing California Massage Therapy Council lOne Ca-eitol Mall, Suite 320 I Sacramento, CA 95814 I 916.669.53361 www.camtc.org tet < •• \ RE~{"'fll 11 n c ~ A r' t\"'f",' ]::(""')R CC It-A 'I' CE'Rl-IF~ CA'l"ION ~~ f\.LfvLtJ J 1 ._, , ;, .... JVl , .. ,11 • 1 _,_ .,' Starting January 31,2011, applicants seeking a Conditional CMP (CCMP) certificate with 100- 249 hours of massage education completed after March 15, 2010, must submit a transcript from an approved school whose 100 .. 249 hour entry-level program was specifically approved by BPPE or BPPVE. Please note that no applications for CCMP certification will be accepted after December 31, 2011. Starting January 1, 2012, all applicants will need a minimum of 250 hours of massage education at an approved school to be considered for CAMTC certification. In order to maintain your Conditional Certification as a Massage Practitioner (CCMP), you are required to provide evidence of a minimum of 30 hours of continuing massage education each year, until your total massage education totals 250 hours. Once you have completed a minimum of 250 hours of massage education, you must apply for an upgrade to CMP. You may apply for an upgrade at the time you reach 250 hours or at the time of your next renewal. If you are unsure where to obtain your continuing education, visit the National Certification Board for Therapeutic Massage & Bodywork (www.ncbtmb.org/ceproviders.php) or Bureau for Private Postsecondary Education (www.bppe.ca.gov) for a list of providers/schools. Please note: not all transcripts will serve as sole proof of education, so please check our website regularly for a list of schools where additional proof of education, beyond a transcript, will be requested. !. ~ I Attachment E , . .. ,. BILL NUMBER: AB619 BILL TEXT CHAPTER 162 CHAPTERED FILED WITH SECRETARY OF STATE AUGUST 3, 2011 APPROVED BY GOVERNOR AUGUST 3, 2011 PASSED THE SENATE JULY 11, 2011 PASSED THE ASSEMBLY JULY 14, 2011 AMENDED IN SENATE JULY 1, 2011 AMENDED IN SENATE JUNE 7, 2011 AMENDED IN SENATE JUNE 2, 2011 AMENDED IN ASSEMBLY APRIL 25, 2011 AMENDED IN ASSEMBLY APRIL 13, 2011 AMENDED IN ASSEMBLY MARCH 31, 2011 INTRODUCED BY Assembly Member Halderman FEBRUARY 16, 2011 An act to amend Sections 4600, 4600.5, 4601, 4601.3, 4601.4, 4602, 4602.5, 4603, 4603.1, 4603.5, 4604, 4612, and 4615 of, and to add Sections 4603.7 and 4616 to, the Business and Professions Code, relating to massage therapy. LEGISLATIVE COUNSEL'S DIGEST AB 619, Halderman. Massage therapy. (1) Existing law, until January 1, 2015, provides for the voluntary certification of massage practitioners and massage therapists by a nonprofit Massage Therapy Organization, as defined. Existing law requires the initial board of directors to, among other things, establish the organization. This bill would specify that the Massage Therapy Organization is to be known as the California Massage Therapy Council, as defined. (2) Existing law requires applicants for initial certification as massage practitioners and massage therapists to pay a specified fee and meet certain educational requirements. This bill would require a certificate holder to include certain identifying information in any advertising, and to display his or her certificate at his or her place of business. (3) Existing law prohibits the holder of a certificate or a certificate applicant from being disciplined or denied a certificate unless certain procedural requirements are met. Existing law requires actiqns challenging a denial or discipline to be commenced within a year after the date of the denial or discipline. Under existing law, applicants and certificate holders are liable for charges incurred before the certificate denial or certificate holder discipline, or other specified charges. This bill would delete that liability requirement and would require the council to be sued only in the county of its principal office. (4) Existing law prohibits a city, county, or city and county from enacting an ordinance, or enforcing an existing ordinance, that requires a license, permit, or other auth<;>rization to practice massage by an individual who is certified pursuant to existing law, as specified. This bill would instead prohibit those local governments from Page 1 of12 h«p:llwww.leginfo.ca.gov/pubI11-12Ibill/asmlab_0601-0650/ab_619 _bill_20110803_cha... 10/28/2011 AB 619 Assembly Bill-CHAPTERED . enacting an ordinance or enforcing an existing ordinance that requires a license, permit, or other authorization to provide massage for compensation against an individual certified under existing state law or against a massage business or massage establishment that employs or uses only persons who are so certified. Existing law authorizes a city, county, or city and county to charge a massage business or massage establishment a business licensing fee sufficient to cover the costs of the licensing activities, as specified. This bill would require that the fee be no different than the fee that is uniformly applied to all other individuals and businesses providing professional services, as defined and specified. Existing law authorizes a city, county, or city and county to require a background check of any person certified to practice massage. This bill would authorize such a background check of an owner of 5% or more of a massage business or massage establishment, as specified. The bill would make various conforming changes, including with regard to the failure of an owner or operator of a massage business or establishment to comply with the provisions that apply to the practice of massage therapy. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 4600"of the Business and Professions Code is amended to read: 4600. As used in this chapter, the following terms shall have the following meanings: (a) "Approved school" or "approved massage school" means a school approved by the council that meets minimum standards for training and curriculum in massage and related subjects and that meets any of the following requirements: (1) Is approved by the Bureau for Private Postsecondary Education. (2) Is approved by the Department of Consumer Affairs. (3) Is 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 of the criteria in subparagraph (B) that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, that has been in continuous operation since April 15, 1997, and that is not managed by any entity for profit. (4) Is a college or university of the state higher education system, as defined in Section 100850 of the Education Code. (5) Is a school of equal or greater training that is recognized 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. Page 2ofl2 http://www.leginfo.ca.gov/pub/11-12/bilVasm/ab_0601-0650/ab_ 619 _ bill_ 20110803 _cha... 10128/2011 AB 619 Assembly Bill -CHAPTERED (cl "Massage therapist," "bodyworker," "bodywork therapist," or "massage and bodywork therapist" means a person who is certified by the California Massage Therapy Council under subdivision (cl of Section 4601 and who administers massage for compensation. (d) "Massage practitioner," "bodywork practitioner," or "massage and bodywork practitioner" means a person who is certified by the California Massage Therapy Council under subdivision (b) of Section 4601 and who administers massage for compensation. (e) "Council" means the California Massage Therapy Council 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 council may commence activities as authorized by this section once it has submitted a request to the Internal Revenue Service seeking this exemption. Whenever the term "organization" is used in this chapter, it shall mean the council, except where the context indicates otherwise. (f) "Registered school" means a school approved by the council that meets minimum standards for training and curriculum in massage and related subjects and that either is approved by the Bureau for Private Postsecondary Education or the Department of Consumer Affairs, or is an 'institution accredited by the senior commission or the junior commission of the Western Association of Schools and Colleges as defined in paragraph (3) of subdivision (a), is a college or university of the state higher education system as defined in Section 100850 of the Education Code, or is 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. SEC. 2. Section 4600.5 of the Business and Professions Code is amended to read: 4600.5. (a) The California Massage Therapy Council, as defined in subdivision (e) of Section 4600, shall be created and shall have the responsibilities and duties set forth in this chapter. The council 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. (bl (1) The council 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 council. 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 persons: (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. (ClOne 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. Page 3 of12 http://www.leginfo.ca.gov/pubI11-12lbilVasmiab _060 1-0650/ab _ 619 _ bill_ 20110803_ cha... 10/28/2011 I 1 i [I Ii AB 619 Assembly Bill -CHAPTERED (E) One member appointed by the Office of the Chancellor of the California Community Colleges, 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 council's bylaws shall establish a process for appointing other professional directors as determined by the board. (2) The initial board of directors shall establish the council, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the council. 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. (dl The meetings of the council shall be subject to the rules of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). SEC. 3. Section 4601 of the Business and Professions Code is amended to read: 4601. (a) The council shall issue a certificate under this chapter to an applicant who satisfies the requirements of this chapter. (b) (1) In order to obtain certification as a massage practitioner, an applicant shall submit a written application and provide the council 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 council have been paid. (2) New certificates shall not be issued pursuant to this subdivision after December 31, 2015. Certificates issued pursuant to this section or subdivision (a) or (c) of Section 4604 on or before December 31, 2015, shall, after December 31, 201 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, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant satisfies at least one of the following requirements: (A) He or she has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours. Of this 500 hours, a minimum of 250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved or registered schools, or from continuing education providers approved by, or registered with, the councilor the Department of Consumer Page4of12 http://www.leginfo.ca.gov/pub/11-12Ibilllasmlab _0601-0650/ab_619 _bilt20110803 _cha... 10/28/201 ~ AB 619 Assembly Bill -CHAPTERED Affairs. After December 31, 2015, applicants may only satisfy the curricula in massage and related subjects from approved schools. (B) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the board. The successful completion of this examination may have been accomplished before the date the council is authorized by this chapter to begin issuing certificates. (3) All fees required by the council have been paid. (d) The council 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 council shall have discretion to give credit for comparable academic work completed by an applicant in a program outside of California. ) An applicant applying for a massage therapist certificate shall file with the council a written application provided by the council, showing to the satisfaction of the council that he or she meets all of the requirements of this chapter. (f) Any certification issued under this chapter shall be subject to renewal every two years in a manner prescribed by the council, and shall expire unless renewed in that manner. The council may provide for the late renewal of a license. (g) (1) The council shall have the responsibility to determine that the school or schools from which an applicant has obtained the education required by this chapter meet the requirements of this chapter. If the council 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 council 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 council is authorized to receive factual information as a condition of taking any action, the council 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. SEC. 4. Section 4601.3 of the Business and Professions Code is amended to read: 4601.3. (a) Prior to issuing a certificate to the applicant or designating a custodian of records, the council 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 council 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 bailor on his or her own recognizance pending trial. Requests for federal level criminal offender record information received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice. The Department of Justice shall review the information returned from the Federal Bureau of Investigation, and shall compile and disseminate a fitness determination regarding the applicant or candidate to the council. (b) The Department of Justice shall provide information to the council pursuant to subdivision (p) of Section 11105 of the Penal Page 5 of12 http://www.leginfo.ca.gov/pub/11-121hill/asm/ab_0601-0650/ab_619 _bill_20110803 _cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED Code. (c) The Department of Justice and the council shall charge a fee sufficient to cover the cost of processing the request for state and federal level criminal offender record information. (d) The council 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. SEC. 5. Section 4601.4 of the Business and Professions Code is amended to read: 4601.4. Council directors, employees, or volunteer individuals may undergo the background investigation process delineated in Section 4601.3. SEC. 6. Section 4602 of the Business and Professions Code is amended to read: 4602. (a) The council may discipline a certificate holder by any, or a combination, of the following methods: (1) Placing the certificate holder on probation. (2) Suspending the certificate and the rights conferred by this chapter on a certificate holder for a period not to exceed one year. (3) Revoking the certificate. (4) Suspending or staying the disciplinary order, or portions of it, with or without conditions. (5) Taking other action as the council, as authorized by this chapter or its bylaws, deems proper. (b) The council may issue an initial certificate on probation, with specific terms and conditions, to any applicant. (c) (1) Notwithstanding any other provision of law, if the council 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 council shall take all of the following actions: (A) Immediately suspend, on an interim basis, the certificate of that certificate holder. (B) Notify the certificate holder within 10 days at the address last filed with the council that the certificate has been suspended, and the reason for the suspension. (C) Notify any business within 10 days that the council has in its records as employing the certificate holder that the certificate has been suspended. (2) Upon notice to the council that the charges described in paragraph (1) have resulted in a conviction, the suspended certificate shall become subject to permanent revocation. The council shall provide notice to the certificate holder within 10 days that it has evidence of a valid record of conviction and that the certificate will be revoked unless the certificate holder provides evidence within 15 days that the conviction is either invalid or that the information is otherwise erroneous. (3) Upon notice that the charges have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the certificate shall be immediately reinstated and the certificate holder and any business that received notice pursuant to subparagraph (C) of paragraph (1) shall be notified of the reinstatement within 10 days. SEC. 7. Section 4602.5 of the Business and Professions Code is amended to read: Page 6 of 12 http://www.leginfo.ca.gov/pubI11-12lbilUasmlab_0601-0650/ab_619_ bill_ 20110803_ cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED 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 council shall provide information concerning a certificate holder, including, but not limited to, the current status of the certificate, any history of disciplinary actions taken against the certificate holder, the home and work addresses of the certificate holder, and any other information in the council's possession that is necessary to verify facts relevant to administering the local ordinance. (b) The council 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 council shall have the responsibility to review any information received and to take any actions authorized by this chapter that are warranted by that information. SEC. 8. Section 4603 of the Business and Professions Code is amended to read: 4603. It is a violation of this chapter for a certificate holder to commit, and the council 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 council. (d) Conviction of any felony, or conviction of a misdemeanor that is substantially related to the qualifications or duties of a certificate holder, in which event the record of the conviction shall be conclusive evidence of the crime. (e) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to under this chapter for the issuance of a certificate. (f) Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a certificate. (g) Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder. (h) Committing any act punishable as a sexually related crime. SEC. 9. Section 4603.1 of the Business and Professions Code is amended to read: 4603.1. (a) No certificate holder or certificate applicant may be disciplined or denied a certificate pursuant to Section 4603 except according to procedures satisfying the requirements of this section. A denial or discipline not in accord with this section or subdivision (c) of Section 4602 shall be void and without effect. (b) Any certificate applicant denial or certificate holder discipline shall be done in good faith and in a fair and reasonable manner. Any procedure that conforms to the requirements of subdivision (c) is fair and reasonable, but a court may also find other procedures to be fair and reasonable when the full Page 7of12 http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0601-0650/ab_619 _bill_20110803 _cha... 10/28/2011 AB 619 Assembly Bill-CHAPTERED 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. (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 council'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) The council shall be sued only in the county of its principal office. SEC. 10. Section 4603.5 of the Business and Professions Code is amended to read: 4603.5. It shall be the responsibility of any certificate holder to notify the council of his or her home address, as well as the address of any business establishment where he or she regularly works as a massage therapist or massage practitioner, whether as an employee or as an independent contractor. A certificate holder shall notify the council within 30 days of changing either his or her home address or the address of the business establishment where he or she regularly works as a massage therapist or massage practitioner. SEC. 11. Section 4603.7 is added to the Business and Professions Code, to read: 4603.7. A certificate holder shall include the name under which he or she is certified and his or her certificate number in any and all advertising and shall display his or her certificate at his or her place of business. SEC. 12. Section 4604 of the Business and Professions Code is amended to read: 4604. (a) Notwithstanding Section 4601, the council 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 an Page 8of12 http://www.leginfo.ca.gov/pub/II-12Ibilllasmlab_0601-0650/ab_ 619 _bill_2011 0803_ cha... 10/2812011 AB 619 Assembly Bill-CHAPTERED approved or registered school, or out-of-state school recognized by the council 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 an approved or registered school, or out-of-state school recognized by the council 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 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 council 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 council 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 council shall issue a certificate to the person that is not conditional. (4) A conditional certificate issued to any person pursuant to this subdivision shall immediately be nullified, without need for further action by the council, if the time period specified in paragraph (2) expires without proof of completion of the requirements having been filed with the council. (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 councilor the Department of Consumer Affairs. (D) A provider that establishes to the satisfaction of the council Page 9 of 12 http://www.leginfo.ca.gov/pubI11-12Ibilllasmlab_0601-0650/ab_619 _ bill_ 20110803_ cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED that its course or courses are appropriate educational programs for this purpose. ( d) exercising respect to SEC. 13. Nothing in this section shall preclude the council from any power or authority conferred by this chapter with a conditional certificate holder. Section 4612 of the Business and Professions Code is amended to read: 4612. (a) (1) The holder of a certificate issued pursuant to this chapter shall have the right to practice massage, consistent with this chapter and the qualifications established by his or her certification, in any city, county, or city and county in this state and shall not be required to obtain any other license, permit, or other authorization, except as provided in this section, to engage in that practice. (2) Notwithstanding any other provision of law, a city, county, or city and county shall not enact an ordinance that requires a license, permit, or other authorization to provide massage for compensation by an individual who is certified pursuant to this chapter and who is practicing consistent with the qualifications established by his or her certification, or by a massage business or massage establishment that employs or uses only persons who are certified pursuant to this chapter to provide massage for compensation. 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 provide massage for compensation, may be enforced against an individual who is certified pursuant to this chapter or against a massage business or massage establishment that employs or uses only persons who are certified pursuant to this chapter to provide massage for compensation. (3) Except as provided in subdivision (b), nothing in this section shall be interpreted to prevent a city, county, or city and county from adopting or enforcing any local ordinance that provides for 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 establishments or businesses that employ or use only persons certified pursuant to this chapter to provide massage services. For purposes of this subdivision, a sole proprietorship is a business where the owner is the only person employed by that business to provide massage services. (2) (A) Any massage establishment or business described in paragraph (1) shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified. (B) Nothing in this section shall preclude a city, county, or city and county from including in a local ordinance a provision that requires a business described in paragraph (1) to file copies or provide other evidence of the certificates held by the 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 licensing fee, provided that the fee shall be no different than the fee that is uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Page 10 of 12 http://www.leginfo.ca.gov/pubI11-12lhill/asm/ab_060l-0650/ab_619 _bile 20110803 _cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED Code. (4) Nothing in this section shall prohibit a city, county, or city and county from enacting ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits, or zoning requirements applicable to an individual certified pursuant to this chapter or to a massage establishment or business that uses only individuals who are certified pursuant to this chapter to provide massage for compensation, provided that, unless otherwise exempted by this chapter, these ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits, and zoning requirements shall be no different than the requirements that are uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code. No provision of any ordinance, regulation, rule, requirement, restriction, land use regulation, moratoria, conditional use permit, or zoning requirement enacted by a city, county, or city and county that is in effect before the effective date of this chapter, and that is inconsistent with this paragraph, may be enforced against an individual who is certified pursuant to this chapter or against a massage business or massage establishment that uses only individuals who are certified pursuant to this chapter to provide massage for compensation. (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 is no staff available to ensure security for clients and massage staff who are behind closed doors, or (B) require windows that provide a view into massage rooms that interfere with the privacy of clients of the massage business. (6) A city, county, or city and county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to, requirements for cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services, provided that nothing in this paragraph shall be interpreted to authorize adoption of local ordinances that impose additional qualifications, such as medical examinations, background checks, or other criteria, upon any person certified pursuant to this chapter. (7) Nothing in this section shall preclude a city, county, or city and county from doing any of the following: (A) Requiring an applicant for a business license to operate a massage business or establishment to fill out an application that requests the applicant to provide relevant information. (B) Making reasonable investigations into the information so provided. (C) Denying or restricting a business license if the applicant has provided materially false information. (c) An owner or operator of a massage business or establishment subject to subdivision (b) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. Failure to comply with this chapter may result in revocation of the owner's or operator's certificate in accordance with Section 4603. 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, Page 11 of 12 http://www.leginfo.ca.gov/pubI11-12lhill/asm/ab_0601-0650/ab_619 _ bill_ 20110803 _ cha... 10128/2011 AB 619 Assembly Bill-CHAPTERED occur on the business premises. (d) Nothing in this section shall preclude a city, county, or 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 requirements. (2) Requires an owner or operator to noti the city, county, or city and county of any intention to rename, change management, or convey the business to another person. (e) Nothing in this chapter shall be construed to preclude a city, county, or city and county from requiring a background check of an owner or operator of a massage establishment who owns 5 percent or more of a massage business or massage establishment and who is not certified pursuant to this chapter. The background check may consist of an application that requires the applicant to state information, including, but not limited to, the applicant's business, occupation, and employment history for the five years preceding the date of application, the inclusive dates of same, and the name and address of any massage business or other like establishment owned or operated by any person who is subject to the background check requirement of this subdivision. SEC. 14. Section 4615 of the Business and Professions Code is amended to read: 4615. This chapter shall be subject to the review required by Article 7.5 (commencing with Section 9147.7) of Chapter 1.5 of Part 1 of Division 2 of the Government Code. SEC. 15. Section 4616 is added to the Business and Professions Code, to read: 4616. This chapter shall be liberally construed to effectuate its purposes. If any provision of this chapter or the application thereof to any person or circumstance is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. Page 12 of12 http://www.leginfo.ca.gov/pub/II-12Ibilllasmlab_0601-0650/ab_619 _ bill_20 11 0803_ cha... 10/28/2011 ***Proposed Massage Municipal Code*** 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 the practitioners are all CAMTC certified. 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 or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. (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 as the principal functions. 1 (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) "Permit" means the permit to engage in the activities of a massage technician or a massage technician trainee as required by this chapter. (8) "Person" means any individual, firm, association, partnership, corporation, joint venture or combination of individuals. (9) “California Massage Therapy Council” (CAMTC) means the governing non- profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. (10) “Accessory Technician Permit” A technician 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. 4.54.030 Massage establishment permit required. (a) Except as otherwise provided, it is unlawful for any person to engage in, conduct or carry on, 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. 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 of this code or state law, as applicable; unless grounds for denial of 2 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. 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. 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 3 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 addition 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 of the stock of the corporation. If the 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; 8. The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the 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. 4.54.060 Massage technician permit required. 4 (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 of this 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. (b) A permit issued by the chief of police is not required for any massage technician and massage establishments if the owners and 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. 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 5 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 the 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 of time. 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 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. 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 reasons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. The chief 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 applicant; 6 (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. 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 proof that 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 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 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 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. 7 Any massage technician trainee who, during the life of the trainee permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. 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. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those certified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (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. (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 in wall-mounted dispensers. (8) Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patron shall be available for the protection of the valuables of the patrons. 8 (9) Every portion of a massage establishment, including appliances, apparatus and personnel, shall be kept clean and operated in a sanitary condition. (10) 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 into a sanitary receptacle. (11) 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 and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use. (12) 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. (13) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof material. (14) (A) To protect patrons from potential health and sanitary hazards, all employees, massage technicians and massage technician trainees shall be clean 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, (15) through (18), shall not apply to CAMTC certified establishments: (15) 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. (16) (A) Massage establishments shall close and remain closed from eleven p.m. (11 p.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 for the exemption. The chief of police, 9 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 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the 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). (17) Every massage establishment and sole proprietor massage establishment shall keep written client records of the following: the date and hour of each service; the name, contact information and sex of each patron; the service provided, and the technician administering the service. This log may be inspected only pursuant to a court order. (Ord. 2833 § 1 (part), 1974) (18) 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. 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 time 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. 4.54.130 Business name. 10 No person permitted to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the permit. 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. 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 a result 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 each such sale or transfer. 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. 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; 11 12 (4)Barbers and beauticians who are duly permitted under the laws of the state of California. 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. 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. 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. 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. o 1=! ~ (l) ] ~ ~ LOCAL SURROUNDING CITIES MASSAGE TECHNICIAN RATES SAN MATEO MILLBRAE NEW MASSAGE TECHNICIAN PERMIT $323.00 $697.00 MASSAGE TECHNICIAN RENEWAL .. $188~00 $209.0Q. BELMONT SUNNYVALE MOUNTAIN VIEW PALO ALTO $500.00 $223.00 $409.00 $157.00 $150.00 $223.00 _. $203.00 _ $81.00 NEW MASSAGE TECHNICIAN PERMIT AVERAGE: $385 MASSAGE TECHNICIAN RENEWAL AVERAGE: $176 _ NEW MASSAGE TECHNICIAN PERMIT _MASSAGE TECHNICIAN RENEWAL ~ <v ~ ~O ~~ ~~ <Q<VV ~~ ~~ ~o ~ o «~ c:>"::> ~ 0"::> ~ LOCAL SURROUNDING CITIES MASSAGE ESTABLISHMENT RATES NEW ESTABLISHMENTS ESTABLISHMENT RENEWALS $2,000.00 $1,800.00 $1,600.00 $1,400.00 $1,200.00 $1,000.00 $800.00 $600.00 $400.00 $200.00 $0.00 ~<v0 ~ ~~ SJ ~ ~v <::>~ SAN MATEO $427.00 L... $142.00 t-<v ~O ~~ MILLBRAE $697.00 $209.00 ~ ~~ BELMONT SUNNYVALE MOUNTAIN VIEW PALO ALTO $500.00 $841.00 $811.00 $1,790.00 $150.00 $777.00 $409.00 $810.00 NEW MASSAGE ESTABLISHMENT AVERAGE: $844 MASSAGE ESTABLISHMENT RENEWAL AVERAGE : $416 ,,0 ~ .NEW ESTABLISHMENTS • ESTABLISHMENT RENEWALS <Qo/ ~~ <::>'5 ~~ ~ 0'5 ':YO <l.~ ~ ~~_'"._,~ __ , ............... ::.:: ~. _...;::.~~;.;;=-"o...; .. ~==_~_=~· =.='...:..:..::....---.:;-""""'..o...t..,~~-_~==, ______ _ Minor, Beth From: Sent: To: Subject: Dear City Council T Lance Welsh Oance@lwelsh.coml Monday. February 06,20127:27 PM Council, City Massage Ordinance Thank you for taking the time to read what must be volumes of email{ on this and other issues. Please know that I'm another Palo Alto resident who is surprised to. hear that we need reformed massage ordinances. As a resident for over 20 years, I have seen no evidence that there is a problem here that needs fixing. EspeCially when the cost of even a well-intentioned proactive law would put a burden on some establishments like Happy Feet. I live In Baron Park and visit when work becomes stressful. It's wonderful to live nearby, and nothing against Watercourse Way or other high-end spas{ but even if I could afford it, I'm glad to have the choice to not spend that much money. I've had nothing but good healthy clean service from Happy Feet and am proud to live In a community that hasn't gentrified so much as to wipe out these more affordable shops and services. Please reconsider whether we need to make new laws for problems that don't exist, or at least consider making them with minimal harm to good businesses a.nd our community. Perhaps I'm wrong -if there are problems and compelling reasons for new laws, please enlighten me. Sincerely, Lance Welsh 3885 Magnolia Drive Palo Alto, CA ~4306 1 Teixeira, Barbara From: Sent: To: Minor, Beth on behalf of Council, City Wednesday, February 08, 2012 7:50 AM Teixeira, Barbara Page I of 1 Subject: FW: Massage Ordinance Revision (PD) Agenda Item, February 14, 2012 Policy & Services meeting Attachments: ARCB RAA Brochure 2012 1.6. 12.pdf -1 .. pdf; ARCB Palo Alto. pdf; Califomia Statutes. pdf; Citrus Heights Exemption.pdf; RAC 2011 Brochure.pdf; Reflexology vs Massage (4).pdf; Palo Alto Llr· Whitaker-Harvey. pdf; NIH NCCAM.doc.pdf Hi Barb, This should also go with the massage ordinance report. B- From: Susan Mix [mailto:MlxReflexology@comcast.netj Sent: Tuesday, February 07,20126:05 PM To: Council, aty Subject: Massage Ordinance Revision (PD) Agenda Item, February 14,2012 Policy & Services meeting February 7, 2012 Palo Alto City Council 250 Hamilton Avenue Palo Alto CA 94301 Re: Massage Ordinance Revision (PD) Agenda Item, February 14, 2012 Policy & Services meeting As a representative of the Reflexology Association of California (RAe), I request time for myself and a few other professional reflexologlsts to speak against the issue of amending the Massage Ordinance to include reflexology under the massage regulations. A brief summary of information regarding professional reflexology and legislation pertaining to its practice is attached to this e-mail. Some of the attached documents reference other documents that we will bring to the meeting. Sincerely, Susan l. Mix RAC Vice President 408-829-6249 2/8/2012 Reflexology is: Reflexology is a non-invasive comple­ mentlIY practice involving the use of alternating pressure applied to the re­ flexes withln the reflex maps of the body located on the fcet, hands and outcrcars. A Typical Reflexology Session: o Is performed on the fect, hands and outer ears. • Only footwear is removed o Average session length is 60 minutes. The Legitimate Reflexology Professional is: o A graduate of a reflexology pro­ gmm consisting of at least 200 hours of Imining. o Certified through a national certification board. o Certified through an accredited vocational school. Posted Credentials May Include: o Diploma of Reflexology edw;ation. o Certificate ofCcrtification. o MemheIShip in RAA and the state reflexology ao;;soc1atiOD. o Continuing Education Certificates. o Code of Ethlcs and Business S tan­ dards. o Whom to contact with a grievance. History and Science: The art and science of Reflexology is hased on the work of three 20th century medical doetors and a physio­ therapist • Dr. William Fitzgerald (USA) • Dr. Joe Shelby Riley (USA) o Dr. Panl Nogier (France) o Eunice Ingham (USA) Reflexology is: o SUpPOrted hy over 300 global research stodies. • Funded by two research gran1s (of several million dollars each) by the National Cancer Institote. • Recognized by the National Center for Complementary and Alternative Medicine as a separate integrative therapy. © 2012 RAAI ARCB ldenti fjin g the Legitimate ReJeXDlogy Practice Etbics and Business Standards An unethical, but growing trend in the USA is the operation of "reflexology parlors or studios" that front for operations of human trafficking and prostitution. All,professi(>nal reflexology form. Professional reflexologists adhere to a strict Code of Ethics and Business Standards set forth by national organizations, educational institutions, and state legislation. Resources For more infonnation or to report a potential case of human tmfficking, please contact your local law enforcement, or. National Human Trafficking Resource Center 1-888-373-7888 www.traffickingresoureecenter.com Professional Organizations in the Reflexology Field Both these Reflexology organizations are independent non-profit corporations governed by their own Board of Directors and work in cooperation with each other. ARCB American Reflexology Certification Board The primary aim of ARCB is to protect the public through certifying the eompetency of tmined reflexology practitioners. To aid the public in locating ARCB eertificants in their area it also provides a national referral directory through their website. Established in 1991, ARCB is a non-profi~ independent national testing agency. As such ARCB is not affiliated with any schooL instructor, business, or association. ARCB 303-933-6921 www.arcb.net RAA Reflexology Association of America RAA, established in 1995, is a member­ ship association open to reflexologists, reflexology scbools, and to those who are outside the field, but wish to support reflexology. RAA's primary goals include: • Advancing its members' interests, • • • • Sponsoring a bieunial conference, Acting as a national referral board for its member practitioners. Educating the public on reflexology and its benefits. Acting as a clearinghouse for infor­ mation about reGexology to the fed­ eral government, the public and its membership. RAA 980-234-0159 W1\o"W.rdlexology-usa.org Michael Rainone Scarsdale, NY PresiJttl~ Lucy Scarhrough jackson, TN Viet' Pr ... sident Janet Q'Foalin LllgUJlll NigueL CA BartI'd S~(retm'Y Perry Dickinson Topeka. KS TrY4Surer Mary Ann Stimmell rvIar~hfie1J, \vr Dij>ccwr Allnalise EveUS()il Old Green\vich, CT Diuctor Shat,+on Vetmeulen Grand Rapid." M( Adminimati!'! Secretary Chd8tine Issei AubuITt,CA Lrgistativc COilJllitaJJt ARCB • PO Box 141553 • Grand Rapids MI 49514 P -303.933.692'1 • f -303.904.0460 tofo@arcb.net • www.arcb.net 7 February 2012 To Whom It May Concern: The challenge faced today is how to regulate and license reflexology businesses that are potentially doing harm without severely restricting the ethical professional practicing reflexologist as an integrative therapist while ensuring public safety. A properly trained and nationally certified reflexologist will have met competency standards. Educational standards are important so that harm does not occur; however, reflexology does not involve invasive techniques, pharmaceutical substances, or is it to be used as a diagnostic tecbnique; therefore it is a low risk practice. Nationally evidence of physical harm due to an incompetent reflexologist has never been reported. Furthermore, the National Center for Complementary and Alternative Medicine (NCCAM) has found those who seek out complementary therapies to be well educated. This in and of itself lends an element to public safety. The decision \0 seek reflexology is controlled by the client (self-referred) and well-educated clients are more likely to know when to seek legal recourse and have adequate resources to pursue damages. Public welfare is served by consumers having broad access to reflexology and knowing that all service providers meet basic standards to perform their work. On the attached page is a list of suggested professional practitioner standards to be met allowing public safety. ARCB is willing to meet with the committee to discuss how best to address the issues it is faced with if further information is required. For immediate response I may be contacted bye-mail at quantumreflexology@earthlink.net or directly by telephone at 530-887-1364. Sincerely, Christine Issel Since .1.99.1 setting the bighr:st testing standards t,) which professional r~~c:xologists aspire Professional Practitioner Standards Setting standards for public safety would include reflexologist providing; a. Proof of U.S. reflexology education of at least 200 hours for each practitioner (if not G.S. then some kind of proof of education). b. National certification with the American Reflexology Certification Board (ARCB). In this way the state, city andfor county do not have to evaluate educational backgrounds and conduct psychometrically valid certification exam testing. See attached brochure for testing prerequisites. The testing process often takes 18 months from submission of the application to grading of documentations. If a reflexologist hss applied for testing, then a letter from ARCB stating the person is a candidate would suffice. c. Membership in professional association(s), the Reflexology Association of America (RAA) and/or the Reflexology Association of California (RAC). Membership also provides a system for grievances to be presented and resolved. ARCB, RAA & RAC investigate complaints and reprimand or otherwise discipline practitioners for a breach in the Code of Ethics and Business Practices. d. Proof of practitioner liability insurance-i.e., liability insurance policy number for each reflexologist. e. And required use of a Full and Fair Disclosure form as mandated by Statute 2053.5-6 of the California Business & Professions Code (Health Freedom of Access to CAM Therapies) which provides guidelines on how CAM therapy practitioners must present themselves. 2007 Profile of a Reflexologist Based on the responses provided in the ARCB National 2007 Job Analysis Survey, the "typical" reflexologist is a 52 year old, Caucasian female who is self-employed in reflexology and practices in a suburban area of New York. "Zoe" has been practicing for about 10 years, sees less than 10 clients per week and carries practice liability insurance. Although, Zoe conducts the majority of her sessions in a private practice at her home, she occasionally makes "outcalls" to her clients' homes. Zoe's sessions last about an hour. For most, reflexology is a mid-life career change. In addition to her "formal" education, from which she hss a four-year degree, Zoe's initial reflexology training consisted of a 200 hour program. To date, she has at least 500 hours of training in reflexology. She likely gained the additional hours of training through attendance at the workshops and conferences held by the state, national and international associations of which she is a member. During the course of her work, Zoe varies the pressure during her thumb and finger movements, uses circular pressure and avoids using her knuckles on the reflex points. She is careful to check with her clients intermittently throughout the session regarding their pressure preferences. She doesn't use tools, but occasionally uses lubricants during her work. Zoe always works on the feet and increasingly is incorporating work on the hands into her sessions. She is less apt to work on the ears. Following a code of ethics and business standards, Zoe doesn't provide psychological counseling, but does engage in active listening. She will often give her clients homework for self-help and will refer them to other health care providers on an "as-needed" basis. Zoe follows a combination ofthe stress reduction, medical and energy models of reflexology, but also believes that there are contraindications that always have to be considered. California Statutes of BUSINESS AND PROFESSIONS CODE Chapter 5 -Medicine -SECTION 2053.5-6 (AKA Health Freedom of Access ofeAM Therapies) 2053.5. (a} Notwithstanding any other provision 0= law, a person who complies with the requirements of Section 2Q53.6 shall not be in violation 0: Section 2051 or 2052 unless that person does any of the following: (1) Conducts surgery or any other procedure on another person that punctures the skin or harmfully invadesthe body. {2) Administers or prescribes ~ray radiation to another person. (3) Prescribes or administers legend drugs or controlled s'..lbstances to another person. (4) Recor.tmends the di8contin'Jance 0: legend drugs or controlled substances prescribed by an appropriately licensed practitioner. (5) Willfully diagnoses and treats a physical or mental condition of any person under circut:lstances or conditions that cause or create a risk of great bodily harm, serious physical or mental illness, or death. (6) Bets fractures. (7) Treats lacerations or abrasions through electrotherapy. (8) Holds out, states, indicates I advertises, or implies to a client or prospective client that he or she is a physician, a surgeon, or a physician and surgeon. (b) A person who advertises any services that are not 'Jl1lawful under Section 2051 or 2052 pursuant to subdivision (a) shall disclose in the advertisement that he or she is not licensed by the state as a healing arts practitioner. 2053.6. (a) A person who provides services pursuant to Section 2053.5 that are not unlawful under Section 2051 or 2052 shall, prior to providing those services, do the following: {l) Disclose to the clie~t in a written statement using plain language the following informati~: {A) That he or she is not a licensed physician. (B) That the treatment is alternative or complementary to healing arts services lice~sed by the state. {C) That the services to be provided are not licensed by the state. (D) The nature of the services to be provided. (E) The theory of treatment upon which the services are based. (F) His or her ed~cational, training, experience, and other qualifications regarding the services to be provided. (2) Obtain a written acknowledgment from theclient stating that ce or she has been provided with the information described in paragraph (1). The client shall be provided with a copy of the written acknowledgement I which shall be maintained by the person providing the service for three years. Cb) The in::ormation required by subdivision (a) shall be provided in a language that the client understands. (c) Nothing in this section or in Section 2053.5 shall be construed to do the following: (1) Affect the scope of practice of licensed physicians and surgeons. (2) Limit the right any other civil remedy to the req'..lirements of of any person to against a person this section, seek relief for negligence or providing services subject CODE OF ORDINANCES City of CITRUS HEIGHTS, CALIFORNIA Codified through Ordinance No. 2011-003, adopted March 24,2011. Chapter 22 -Businesses Article VIII Massage Establishments Sec. 22-600. -Title. Sec. 22-60 I. -Authority. Sec. 22-602. -Purpose and intent. Sec. 22-603. -Application of article to persons engaged in massage as of the effective date of this article; grandfather clause. Sec. 22-604, -Construction of this article with other city codes. Sec. 22-605. -Definitions. Sec. 22-606. -Exemptions from article. ,Secs. 22-607-22-609. -Reserved. Sec. 22-600. -Title. This article shall be known as the "Massage Establishment Licensing Law of the City of Citrus Heights." Sec. 22-605 Definitions The definitions contained in this section shall govern the construction of this article. Words contained in this article but not defined by this section shall be construed according to the ordinary and common usage of the word, taking into consirlemtion the context of the language and the definition of the word as provided in a standard English language dictionary. Applicant means any person who applies for a license as required by this article. In the event the applicant is a non-natural person (e.g. a corporation), the term applicant shaH also include a natural person legally authorized to act on behalf of the applicant and the person submitting the application to the city pursuant to this article. Approved national massage organization or association means an organization recognized by the City of Citrus Heights, specifically the: American Massage Therapy Association (AMTA) or the Associated Bodywork and Massage Professionals (ABMP), or a similar organization which requires: Completion of at least 100 hours of massage training or experience; possession of practitioner's liability insurance coverage in the minimum amount of$2,000,000.00 per event; adherence to a code of ethics; and renewal of an annual membership. Certificate or AlTO certificate means the certificate, or conditional certificate, issued by the massage thempy organization to massage therapists, pursuant to Business and Professions Code § 460 I (c) and to massage practitioners pursuant to subdivision 4601(b), or 4604(a), 4604(c), that entitles the holder to practice massage. When used in this article, "MTO certification" means a person who has a valid, unexpired MTO certificate. Certificate holder means a person who has an valid, unexpired certificate from the MTO to practice massage, who is in good standing with the MTO. Certified massage establishment mean a massage establishment that employs or uses only massage therapists with MTO certification to perfonn massage services. Certified sole proprietorship means a sole proprietorship where the owner has received MTO certification and is the only person employed by that business (0 provide massage services. Chief of police means the Citrus Heights Police Department Chief of Police or hislher designee. City means the City of Citrus Heights. City clerk means the City Clerk of the City of Citrus Heights or hislher designee. City council means the City CA)uncii of the City of Citrus Heights. Continuing education means a class or seminar in massage therapy or related educational subjects, including classes related to anatomy and physiology, contraindications, health and hygiene, provided by a recognized massage school, facility or organization approved by a national massage organization or association, or a state-approved school, or any other certification organization recognized by the finance director. Employee means a person who perfonns any massage service on the premises of a massage establishment on a full-time, part-time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not the person is paid a salary, wage or other compensation by the massage establishment. Finance director means the City of Citrus Heights Finance Director or hislher designee. Home occupation massage therapist means a massage therapist who engages in the business of massage therapy in hislher home or residence, or who engages in massage therapy in both hislher home or residence and in a massage establishment. Licensee means any person operating or maintaining a massage establishment pursuant to a massage establishment license. Massage means any method of pressure on, or friction against, or stroking, kneadiug, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the human body below the neck with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances, or with or without supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointroents or other similar preparations commonly used in the practice of massage. Massage establishment means a fixed place of business where any person engages in or carries on massage, as defined by this section, in exchange for any form of consideration. Massage establishment license or license means a license issued by the finance director and required pursuant to this article, to operate or maintain a massage establishment within the city, issued to the massage establishment owner. Massage therapist means any person who gives or administers a massage to another person, for any form of consideration whatsoever. Unless otherwise specified massage therapist includes those persons with MTO certification and those individuals classified by his/her school of education as bodyworkers, bodywork therapists, massage practitioner, bodywork practitioner or massage technicians. Massage therapist permit or permit means a permit issued by the city to a person, which authorizes the person to engage in the business of massage therapy within the city. Massage therapy organization or "MTO" means the nonprofit massage therapy organization established pursuant to Business and Professions Code § 4600 et seq. that has the authority to issue certificates to qualified massage therapists and massage practitioners. Offpremises massage therapist means massage therapists who provide off-premises massage services and who are self-employed and/or who contract with or work for a business other than a massage establishment Massage therapists who conduct massage as a home occupation are engaged in off-premises massage therapist businesses. Permittee means the person issued a massage therapist permit pursuant to this article. Person means any individual, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character. Recognized massage school means a facility that (I) teaches the theory, ethics, practice, profession or work of massage; 2) requires a resident course of stady before the student shall be furnished with a diploma or a cenificate of graduation from such school or institution of learning following the successful completion of such course' of stody or learning; and 3) meets the minimum standards for training and curriculum in massage and related subjects and that was either recognized by the Bureau of Private Postsecondary and Vocational Education pursuant to former Section 94739 of the California Education Code prior to July 1, 2007, and on the date the received hislher certificate, or is recognized by the department of consumer affairs, by an institution accredited by the Accrediting Commission for Senior Colleges and Universities Or the Accrediting Commission for Community and Junior colleges of tho Western Association for Schools and Colleges and that is one ofthe following: (a) a public institution, (b) an institution incorporated and lawfully operating as a nonprofit public benefit corporation under the state of California laws, and that is not managed by an entity for profit; (c) a for-profit institution; (d) an institution incorporated that does not meet all of the criteria in subparagraph (b) that is incorporated and lawfully operating as a nonprofit public benefit corporation, that has been continuously operating since April 15, 1997; (d) a college or university of the state of higher education system, as defined in Education Code § 100850; or (e) a school of greater or equal training that is approved by the corresponding agency recognized by the U.S. Department of Education. Schools or institutions oflearning offering a correspondence course not requiring actual attendance shall not be deemed a recognized massage school. The applicant shall provide the documentation necessary, to the satisfaction of the finance director, to provide proof that his/her school is a recognized massage school. Reflexology means a non-invasive complementary modality involving the use of alternating pressure applied to the reflexes within the reflex maps of the body located on the feet, hands, and outer ears. Responsible person means the person designated by a partnership, finn, association, joint stock company, corporation, limited liability corporation, to be responsible for the operation of the massage establishment. The responsible person must meet the qualifications under this article to receive a massage therapist permit from the city, including the educational requirements, and he/she must also provide documentation to the city evidencing that the corporation, partnership or entity that owns the massage establishment has designated himlher as the responsible person. Specified anatomical areas means, less than completely and opaquely covered: human genitals, public regions, buttocks, or female breasts below a point immediately above the top of the areola, and human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. No. 2008-10, § 1,5-8-2008; Ord. No. 2009-005, § 1,12-10-2009) Sec. 22-606 Exemptions from article This article shall not apply to the following classes ofindividuals and, except as provided in subsections (4) and (5) below, a massage establishment license or massage therapist permit shall not be required of such persons while engaged in the perfurmance of the duties of their respective professions, but such persons must comply with the sanitation and decency requirements of this article: (1) Physicians, surgeons, nurses, chiropractors, osteopaths, acupuncturists, naturopathic doctors and physical therapists who are duly licensed to practice their respective professions in the state, and massage therapists working under the direct supervision of such duly licensed physicians, snrgeons, chiropractors, osteopaths, acupuncturists, naturopathic doctors and physical therapists; (2) Trainers of any amateur, semiprofessional or professional athlete or athletic team; (3) Hospitals, nursing homes, or persons working in any such establishments; (4) Barbers or cosmetologists lawfully carrying out their particular occupation or business, and holding a valid, unrevoked license or certificate of registration issued by the State of California, and where massage comprises not more thaIi 25 percent of the square footage of the establishment; however, any massage therapist engaged in massage at such establishment shall be required to obtain a massage therapist pennit; (5) Athletic clubs or fitness facilities, where such facility is designed and equipped for indoor sports, exercise, or physical education and where massage comprises not more than ten percent of the square footage of the establishment shall not be required to obtain license pursuant to this article; however, any massage therapists engaged in massage at such establishment shall be required to obtain a massage therapist permit. (6) A recognized school ofrnassage which: (i) teaches the theory, ethics, practice, profession and work of massage; (ii) requires a residence course of study to be given before the student is furnished with a diploma or certificate of learning or completion; and (iii) has been approved pursuant to Education Code § 94915, or, if said school is not located in California, has complied with the standards commensurate with those specified in Education Code § 94915, (7) Reflexologists performing reflexology; however, any reflexologist engaged in massage shall be required to obtain a massage therapist pemlit, unless he/she has an MfO certificate, (Ord, No, 2008-10, § 1,5-8-2008; Ord, No, 2009-005, § 2,12-10-2009) P.o.BOX4286 Lakewood, CA 00711 How to Join ow-mission is !O assist each member co ~ rhf!ir viS>m bringing <M communlly roged1er through sIIilred ilt'fMl~ Md enhandng _ pto(€5$iofl as ~ whcle mrongllM!IV1t>m communication and iKtion. We make it eIlSy for )'tJu to got started in what is trIJIy ytIIoIr Association: Go to _.lIefIenlog,<A.arg to apply for membership onlil1e, Or phone us at (310) 899- 6289 to request an appHc.ation by mail. While on the ~ den'l (0IJ1& ro d1fc~ our the flW'1l' member bel>efJl;sI Professional Membership You qualify when you ptOIIlcie proof of either a 2OO-hour l'I!IlelroIogy training school tertifiC3tioll, or natiOnal board tertificatlon. Anlltlill Profe~llJm!,< $75 Associate Membership Associate membership are avajble to reflexology students, accredited reflexology schools, to private business and individuals. Annual Assoda Ie Due, $50 Dr. William Fitzgerald Histor.y Per HeruikLing (1872-1942) (Modern Originator) (1776-1839) Reflexology is the Definition Massage is the systematic application of specific and seientific manipulation pressures to reflex points in of the soft tissues of the the hands and feet Sr;;ol1~of f{actll;~ b.ady The extremities. From the Entirehody ankles and wrists distally to the tips ofthe toes and Basic Premise fingers There are zones and reflex Stroldng restores metabollc areas in the reet and hands imhalance within the soft correspondmg to all lJody tissue. Massage works parts. Reflexology worb through the musculature through the nervous system Body of Knowledge 40+ hooks solely on reflexology Books on massage Separate Reflexology Separate massage schools, schools, associations--local, assoeiations & a national state national, mtemational, certification hody & a national certification body Techniques & Alternating pressure Terminology Tapping Thumb. walking Kneading Fmger wallcing Stroldng Hook and hack-up Friction Rotation on a reflex Shaking Hands, ftJet, & possibly ears AppficaOOn Of To the entire hody Only $hoes & socks Techntques Client undresses . removed National certification Education Educati.onal programs requires a minimum of 200 ~ange from 100-1,OOQhours bours of study & often mcorporating other documented practice of touch modalities relle)(olQgy Scientific research studies Research Worldwide research studies conducted in USA, documenting the Australia, Denmark, Chma therapeutic value of, and elsewhere proving massage . effectiveness ofrefleJtology @ 199_6 American Refiexoloty Certification Board 7 February 2012 To Whom It May Concern: I am a reflexologist working with the Whitaker Wellness Clinic Medical Institute. Reflexology has been used at this internationally recognized clinic for nearly 20 years. The professional application of reflexology and massage as distinct forms of complementary therapies are offered to patients among other doctor ordered procedures. As separate disciplines they utilize different techniques and philosophical approaches resulting in outcomes unique to each' modality. Reflexology works primarily through the nervous system versus the soft tissue. Reflexology has been billed through CAM, PPO of America, Inc. a credentialed national alternative medicine network of providers. CAM PPO maintains an exclusive focus on building a comprehensive, holistic medicine network, ensuring that employees of Parker Hannifin Engineering in our area, with 10,000 covered members, for over 20 years have access to qualified CAM practitioners. With CAM providers in a variety of specialties and extensive online educational resources for members, CAM PPO of America, Inc. encourages CAM use, promoting health and well ness by identifying and credentialing the most qualified CAM practitioners and makes their services available at an affordable cost to patients. It would be a disservice to regulate reflexology under the massage. The issue before you is complex and hopefully working together we can come up with a solution that honors the business owner, reflexologists, and massage therapists while protecting public safety, Sincerely, Paul Harvey, C.R. 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" MU : t d . , b o d y _ m e d i c i o , e 1« ~ - o o W< l Y 3 to: h a r ~ a M ' mi r n f ~ ~ _ ~ . : n i ~ . ~ : ~ , ~ i ~ ~ , ~ J b e ~ fac t o o _ m < a ~ il·- p e r s o n ' i l1e . a t t h -"E x 3 m ~ !i} ( ' ~ . r n « t i t . n i O r \ c ~, ~ Y P 9 a , 1 POLICY AND SERVICES COMMITTEE EXCERPT Regular Meeting February 14, 2012 Chairperson Price called the meeting to order at 6:04 p.m. in the Council Conference Room, 250 Hamilton Avenue, Palo Alto, California. Present: Espinosa, Klein, Schmid Absent: Holman (Chair) 1. Request Policy and Service Committee Review of the Proposed Ordinance Changes to Section 4.54 Massage Establishments. Assistant to the City Manager, Sheila Tucker stated she would be Staffing the Policy and Services Committee this year and looked forward to working with the Council and serving the Committee. Palo Alto Police Lieutenant, April Wagner stated that the City Attorney’s Office and Police Department Staff members had worked on the proposed Ordinance change for over a year. She said that the Palo Alto Municipal Code Ordinance 4.54 was enacted in 1974 to ensure lawful commerce of massage businesses in Palo Alto. The Palo Alto Police Department (PAPD) was responsible for enforcing the Ordinance. In 1996, state laws were anticipated to change the regulation of massage businesses. The City suspended enforcement on portions of the Ordinance that included, permit renewals, fee collections, and site inspections. Background checks and permitting of new massage applicants continued. The current Ordinance, as written, violated state law. The City had 191 City permitted or California Massage Therapy Council (CAMTC) certified massage therapists. Palo Alto had three permitted massage establishments; Water Course, Body Kneads, and the Massage Therapy Center. There were four establishments that should have been permitted under the current regulations. A City audit revealed two dozen unpermitted massage establishments in Palo Alto. The adoption of Senate Bill 731 (SB731) in September 2009 impacted the ability of municipalities to regulate the practice of massage and the CAMTC, a 2 public, non-profit, benefit corporation was created. The corporation standardized and regulated the issuance of certificates to massage therapists and practitioners. Adoption of Assembly Bill 619 (AB619) in 2011, continued legislative work on portions of SB731 that were going to expire. Fifty percent of the massage therapists in Palo Alto were not state-certified. Many local municipalities revisited their ordinance since the passage of SB731. Staff reviewed local updated ordinances and worked with CAMTC Board Members in creating the document. An outreach program was conducted that involved citizens and therapists in a modification review of the Ordinance. Key objectives were to comply with State regulations, to insure qualified trained workers, exempted CAMTC certified practitioners or be permitted by the City, and allowed sole proprietorships in Palo Alto. The final draft change added language to exempt CAMTC holders from obtaining additional City massage permits, increased education from 100 to 200 hours from an accredited school, added sole proprietorship, required malpractice insurance, must display City permits as required by State law, and to maintain limited client records and made available by a court order. The new Ordinance eliminated special building and zoning requirements by State law and added the ability to deny a City permit to an applicant who had been denied, suspended, or had a CAMTC certificate revoked. The cost recovery fees for the program and Staff time were changed to be consistent with other cities. New establishment fees were $750, renewal fee $450; sole proprietorship fee $350, renewal fee $150; massage technician permit $300, renewal fee $150 for people that did not want to be state certified. A 2-year CAMTC certificate fee was $150, plus a $90 Livescan fingerprint or a criminal history check fee. Practitioners were required to have 250 hours and therapists 500 hours of education from an accredited school. CAMTC certified therapists not establishments. In conclusion, the proposed Ordinance would recognize and allow massage practice to occur in Palo Alto, allowed existing therapists and establishments to continue doing business, and allowed time for the therapists to comply with the requirements. Those who chose to patronize the establishments could feel confident that the therapist had met standardized qualifications. The Ordinance was consistent with other municipalities and state requirements. CAMTC Board Members found the draft Ordinance to be compliant with the state law. The passage of the Ordinance would allow the City to resume consistent enforcement on the massage businesses in Palo Alto. Mark Petersen-Perez, PaloAltoFreePress, spoke that massage therapists and practitioners had the right to deny law enforcement officials the ability to view the records unless they had a court order. The information was sensitive and confidential. 3 Vice President Susan Mix, Reflexology Association of California (Association), stated that the Ordinance revision did not unfairly encompass Reflexology within the Massage Ordinance. She said the scope of practice of Reflexology was a non-invasive, natural system of stress reduction and worked on a fully clothed person and only shoes and socks were removed. Work was done from the ankle to the tips of the toes, from the wrists to the tips of the fingers and the outer ear. Reflexologists do not rub backs of a client. The average price charged per session in the Bay Area was $50 to $100. She raised concerns that there may be establishments that were misclassified in Palo Alto as Reflexology and were included in the Ordinance. She urged the City to adopt an exemption to the Massage Ordinance and to create a separate ordinance for professional Reflexologists to protect the public. She said the Association was willing to work with the PAPD to craft an exemption. Vicky Venter, Reflexologist, stated that Reflexology was not massage. The practice of Reflexology was to bring the body back to balance through relaxation through the nervous system and not the musculature system. She said Reflexology should not be governed under massage laws and should have its own laws to include setting educational standards to support public safety concerns. Christine Issel, Reflexologist and Representative of the American Reflexology Certification Board (ARCB), spoke regarding the regulation and licensing of Reflexology businesses. She said some of the requirements that needed to be considered for licensing were evidence of an ARCB certification, proof of membership from one of the professional organization such as the Reflexology Association of California, proof of practitioner liability insurance, Livescan fingerprints, a government issued identification and to require the disclosure form from the California Business and Professional Code. She suggested setting educational standards and fingerprint requirements with the license application to prevent blurring the law and operating under misleading premises. Beverly D’Urson stated that she patronized Happy Feet Foot Spa in Palo Alto. She opposed the revision to the Ordinance because it would take away the ability to choose certain healing techniques. She said the Happy Feet Foot Spa specialized in a certain massage technique and the revised ordinance would force their staff members to obtain a massage permit. Robert Hessen spoke in support of the Happy Feet Foot Spa and asked that new restrictions not be imposed on the establishment. He clarified that the operation functioned in a transparent, open atmosphere that did not encourage inappropriate behavior. He urged the decision-making members 4 to examine the service that the Happy Feet Foot Spa offered before making a final decision. David Bertelsen, Happy Feet Foot Spa owner, raised concerns that the revision to the Ordinance would require staff members to be licensed under the new law. He urged the Council to reject the changes because anyone that practiced any form of massage would be grouped under one umbrella and would require unnecessary licensing. Ping Bertelsen, Happy Feet Foot Spa owner, stated neighboring cities did not require licensing for businesses similar to theirs and that Palo Alto law enforcement officers tried to convince them otherwise. He said the City of Mountain View had passed an ordinance specifically for their type of practice. A new category was created that exempted non-licensed massage practitioners from the standard massage licensing requirements. She said most of the south Bay Area establishments did not require licensing or fees that had the same type of business as theirs. Babs Mitchell stated that the Palo Alto Police Officers had placed restrictive requirements on various equipment and cleaning procedures in her establishment and stated the issues in question should be revisited. She felt that any establishment that practiced any type of massage should be under one ordinance. Dainuri Rott spoke in support of the Happy Feet Foot Spa. He said the services they offered were the only healthcare he used and were affordable. He asked the City to not enforce an ordinance that would force the establishment to discontinue their practice in Palo Alto. Robin Malmquist stated that the definition of the term “therapist”, “technician”, and “practitioner” used in the Ordinance did not coincide with the definition used by CAMTC. They should be the same, consistent, and easily understood. He asked that the Ordinance not be implemented until after all CAMTC applicants were certified. Applicants waiting to be certified were placed in a state of limbo and faced with having to make a choice to either follow the Ordinance route or CAMTC regulations. Council Member Klein asked if the state would occupy the massage field if the City did not move forward on the revision, and that the speakers at this evening’s meeting may or may not be governed by the state. Assistant City Attorney, Donald Larkin clarified that the state’s intent was to not occupy the field of massage if the City did not move forward on the proposed changes. The state’s attempt was to create a permitting system 5 that would take people away from local regulations. He said the Council had three options: 1) to allow massage practice with a state permit enforced through an ordinance, which was similar to the ordinances in neighboring cities. 2) the City allow people to opt out of local regulations by getting state-certified, which the enacted ordinance change would do, and 3) to repeal the City’s Massage Ordinance and not require practitioners to obtain state certification and the option for no regulations. Council Member Klein restated that if the City did nothing, and the City repealed the City’s Ordinance, which was inconsistent with the state law, there would be no regulations at all. Mr. Larkin said practitioners would not be required to be state-certified and there would be no regulation at all. Council Member Klein asked how was this issue handled in unincorporated areas. Mr. Larkin said they were governed by a County ordinance. Council Member Klein said the state provided the City with a system where the City could opt in and state regulations would take over. Mr. Larkin said that was correct. The state preempted the City from regulating anyone certified by the state but did not preempt the City from anyone who was not state-certified. The state placed the responsibility on the City to regulate non-state certified practitioners. Council Member Klein asked if the City could adopt an ordinance that would require practitioners to pay an annual permit fee of $1 if the City felt it did not require any type of regulations. Mr. Larkin said the City could repeal the existing ordinance and not have any regulations or to have a level of regulation such as a $1 annual permit fee to track permitted practitioners. Council Member Klein asked Mr. Larkin if the City repealed the Ordinance and had no regulations, would there be no regulations set by the state. Mr. Larkin said that was correct. Council Member Klein asked if that had been done elsewhere. Mr. Larkin said not in the local area but could not confirm for statewide. 6 Council Member Klein said there was an issue in the 1970’s and asked if the City had encountered issues in the field of massage within the last 30-years. He asked if this discussion would be taking place if the state had not enacted their law. Code Enforcement Officer, Heather Johnson said possibly. She stated that the CMTC was a voluntary, non-profit, program the City could opt into. The state would not take precedence if Palo Alto did not have a set of regulations. People with no formal training in the field of massage would be able to practice in Palo Alto. She said she could not identify cities that did not have ordinance regulations because the focus was on cities that had and studied their municipal code. Council Member Klein said the City had an Ordinance for 15 years that was in a state of suspense and asked if there had been any problems. Ms. Wagner said no. She said in an attempt to be a little more compliant to the changing regulations only portions of the existing Ordinance were suspended. The City continued to allow new practitioners to practice and did background checks. No fees were charged, and no site inspections were made. Council Member Klein said the massage field had its share of problems with prostitution and asked if there had been problems along those lines or in the practice of massage in Palo Alto in the past 30 years. Ms. Johnson said there had been problems. She said 99.9 percent of the therapists did a great job and provided a good service but a small portion did not. Council Member Klein asked about the Reflexology issue. Ms. Johnson said adopting an ordinance to accommodate Reflexology seemed reasonable. Businesses that were discussed at this evening’s meeting did not fall into the category of Reflexology. The Happy Feet Foot Spa practice fell into the description of massage. Their technique was not limited to touching hands, feet, and ears as regulations defined by the Reflexology Association of California. The issue of Reflexology was not addressed because patrons had described the service they received from the Happy Feet Foot Spa fit the definition of massage. Council Member Klein asked about the situation in the Cities of Mountain View and Los Altos. 7 Ms. Wagner stated that the City of Mountain View accommodated a non- certified massage establishment. The establishment and therapist paid fees but was exempted from education requirements. Council Member Klein said his understanding was that there was intent to exempt sole proprietorship. Ms. Wagner said that was incorrect. She said the definition of a sole proprietor was a single person, massage establishment. It basically was a person practicing massage in a rented room in an office space. Charlie Cullen, Deputy Director of Technical Services, clarified that was prohibited under the old Ordinance and a new category was created in order to certify sole proprietors. The City of Mountain View’s situation was an exception to the rule and had a special category that most other municipalities did not support in their ordinance. The City of Los Altos was on tract to require CMATC certification only and not provide any another method to qualify under their local ordinance. Council Member Klein said it was still unclear what was being accomplished for a sole proprietorship massage establishments. Ms. Wagner said in the effort to try to identify massage therapists they were not aware of that were practicing in Palo Alto, they discovered a large number of individuals who had their own personal offices, their own businesses that were single individuals, renting spaces and had clients. The PAPD deemed Palo Alto as a city that should be pro-business. They felt it was inappropriate to have 75 percent of the therapist not be state-certified. This was an incentive to work with these individuals to allow them to run a successful business, which meant having to change current regulations and to allow single persons to have sole proprietorship establishments. Council Member Klein asked if that individual was being regulated. Ms. Wagner said yes, if they were not state-certified. Council Member Klein said he was having trouble with the language as written in the Municipal Code. He said 4.54.020 defined a massage establishment as any establishment with more than one massage technician. Ms. Wagner said that was correct. It was a single person acting as a business owner and a massage technician. 8 Council Member Klein said his interpretation of the code was that this was one individual not subjected to the City’s regulation. Mr. Larkin said the individual was not subjected to the establishment regulations but was subjected to the individual permit regulations. Council Member Klein asked Mr. Larkin where that statement was located and if it referred to the statement “the technician permit would be required.” Mr. Larkin said yes. Council Member Schmid stated the document did not state this was a Police Department matter and needed clarification on why a law enforcement officer was representing the City. Ms. Wagner stated that a Code Enforcement Officer’s position was charged with enforcing this statute. The position assumed the permitting of taxicabs, alarms, massage establishments, solicitors, but she was not sure how far back the history was of the Code Enforcement Officer assuming the responsibility of permitting. Council Member Schmid said Council Member Klein mentioned there were problems in the field of massage in the 70’s and asked if there had been any problems since. He raised concerns that the Police Department was occupied with critical activities and asked if the field of massage was one of them. Ms. Wagner said 99.9 percent of the time there were none but could be a pervasive problem in communities. She confirmed that Palo Alto had its share of illicit activities but no recent incidents had been identified in massage parlors. Passage of the Ordinance would bring the issue to state law and help the Code Enforcement Officer oversee that the practice of massage functioned accordingly in the community. Council Member Schmid said his contact with the Police was through the Police Blotter in the newspaper and had assumed that every police call was listed. He said he did not recall seeing incidents or complaints that pertained to illicit sexual activities. Ms. Wagner confirmed they had gotten calls and some that required special investigation procedures but none were in massage establishments. Council Member Schmid said it would be helpful and important to have a statement that identified these issues in terms of the number of past and 9 present complaints along with the number of incidents that occurred in neighboring cities. The information would identify that these issues were activities handled by the Police Department and not by another City department. Mr. Cullen clarified that historically the issues that Council Member Klein referred to in the 70’s became an enforcement issue for the Police Department. The enforcement permitting process fell under the Police Department’s jurisdiction when the Ordinance was enacted and remained with the Police Department. The Police Department’s Code Enforcement Officer was a non-sworn, civilian, officer who enforced a number of other ordinances and in charge of permitting, ensured that practitioners complied with the rules and the Ordinance. The Code Enforcement Office could initiate an investigation if she saw an illicit activity occurring but the criminal aspect would be investigated by a sworn officer. Council Member Schmid raised concerns that the CAMTC was a non-profit organization that provided education and certification and that a CAMTC permitted practitioner would be outside the local code enforcement. He asked if that implied that a CAMTC permitted individual was not in danger of illicit activity. Ms. Wagner clarified that the CAMTC had a rigorous application process and had the ability to suspend, revoke, or deny a permit based on a complaint. CAMTC thresholds of complaints were low. Their investigation process was extensive and a practitioner under investigation would face heavy scrutiny. Mr. Larkin clarified that the CAMTC was a non-profit organization, a public benefit corporation created by the state government and a quasi- governmental agency similar to the state bar for attorneys. It was not an independent, non-profit without government functions. Council Member Schmid raised concerns regarding establishments to maintain a logbook. Ms. Wagner clarified the logbook was similar to a hotel registry. Law enforcement officers could review the information but would require a court order. The method was to assist both in the defense or prosecution of a therapist working at a business. Council Member Schmid asked if other professions such as physical therapist or personal trainers were asked to maintain a logbook. 10 Ms. Wagner said they did kept records that contained contact information, such as name, address, phone number and services performed. Hair dressers often maintained a logbook for the purpose of sending out mailers. Council Member Schmid stated that would be different than a logbook that contained specific dates, times, and detailed descriptions of services received. Mr. Cullen clarified that the Police Department was sensitive to the issues involved. Customer records in massage establishments would require a subpoena in order for a law enforcement officer to view the records. The process would be similar to any other business that faced a criminal investigation. He wanted to make clear that the subpoena requirement was added to the regulations. Council Member Schmid said the definition of a massage was touching of the exterior space of the body and could include several areas. He felt the definition of massage was too broad. Reflexology stated they did not have the same temptations that led to past abuses. He asked what definition did the Police Department use and if they felt it was too broad. Ms. Wagner stated the practice of massage involved the manipulation or applying pressure to the body. There was the threat of possible injury to the body during manipulation as well as criminal or sexual aspect that could occur. The definition of massage needed to be broad. The intent of the Ordinance was not to focus on the Reflexologist’s scope of work limited to the hands, feet, and ears but work that extended to the manipulation, applying pressure, and touching all over the body. Council Member Schmid noted that one of the speakers stated that half of the states make a distinction between massage therapy and Reflexology. He said the definition was not a standard definition but an interpretation and broader than others used. Council Member Espinosa stated what the Committee was hearing were issues of trying to determine a problem and how to fix it. There was the issue of illicit activities in Palo Alto and for the Council to support the Police Department to quickly address the situation. The other was how the proposed Ordinance change would impact the massage businesses in terms of people getting healthcare services, training requirements for employees, and wanting to protect the public. The impacts would affect the massage business, entrepreneurs, and small businesses without a real good cause and change an industry on services they were able to provide in the 11 community. He asked what Staff’s thoughts were on his comments and if there were concerns in respect to the development of the Ordinance. Ms. Wagner said everyone’s needs were considered in developing the Ordinance. She said that the category “sole proprietorship” was created to allow businesses to occur, to define massage and that all establishments played by the same rules. Additionally, state-certified people would be exempted. Council Member Espinosa asked if information could be collected regarding illicit activities, not on individual cases, if the Committee wanted to get a better understanding if the problem was significant enough to move forward to consider other impacts. Ms. Wagner explained that the nature of illicit activities occurred behind closed doors and did not know if accurate data could be obtained on the number of illicit activities that occurred. Council Member Espinosa asked if full cost recovery was the goal of the price point. Mr. Cullen said cost recovery probably did not cover Staff’s time spent in the implementation and moving forward on permitting. Council Member Espinosa asked Staff what the timeline would be to carve out the Reflexology portion and to come back to the Committee to address the issue. Ms. Wagner said it could take a few months. There were establishments that referred to themselves as Reflexology and performed other services. She did not think it would be necessary to develop an Ordinance solely for Reflexology. She said a definition could be added to the Ordinance to exempt Reflexology. Council Member Espinosa said the speakers touched on issues the Police Department felt that needed stricter regulations such as the method used to wash down equipment, separate faucets to accommodate hot and cold running water, terminology issues, and implementation dates. He asked if Staff could respond to these issues, was Staff in disagreement, or if further discussions needed to occur. Ms. Wagner said the intent was to apply regulations governed by state laws for municipalities to enforce health and safety rules that applied to massage businesses. She said the terminology issues could be revisited to see if a 12 better term could be used to define “technicians”, “practitioners” and therapists”. Mr. Larkin stated that Staff attempted to answer many of the questions during individual meetings with the practitioners and Staff would revisit comments that were overlooked. Council Member Schmid said Reflexology was an alternative type of practice and had a separate form of certification process. He felt that the Happy Feet Foot Spa was not Reflexology or the standard therapy and appeared to be innocuous. He said there was a spectrum of activities that seemed outside the boundaries that was focused on in reviewing the definitions. He suggested looking at how neighboring jurisdictions dealt with their ordinances, not just in a general sense, but what were the differences and how they might apply to what the City was dealing with. Ms. Wagner said they had reviewed other city ordinances and found there were different distinctions. She disagreed with the statement that the situation of having clothes on in an open room was different from clothes off in a closed room. She felt because there was a layer of clothing between the person’s hands and the body they were working on that through pressure and manipulation did not mean a criminal act could not occur. Happy Feet Foot Spa practiced Reflexology but the major portion of their service was full body massage. She understood why people appreciated the low-cost massage option. The intent of the Police Department was not to put anyone out of business. The Happy Feet Foot Spa proprietors were offered solutions to comply with the proposed Ordinance and time for their employees to get proper training. Mr. Bertelsen’s response was that Happy Feet Foot Spa would be put out of business if the employees received the proper education and would leave for better jobs. The Police Department wanted to see the Happy Feet Foot Spa to continue their operations in Palo Alto; however, their practices met the definition of massage and would need to comply with the same rules as other massage businesses in Palo Alto. MOTION: Council Member Klein moved, seconded by Council Member Espinosa that Staff return to the Policy and Services Committee with revised language for the recommended ordinance that excludes Reflexology. Council Member Klein stated that businesses were not always regulated. Regulations came about because of abuses in one form or another. One issue that resulted from licensing was people tried to move around boundaries to have lower-cost alternatives. Society did not allow people who were not appropriately state-certified to do things that were close to what licensed people did and resulted in disagreements. He said he would 13 be willing to exempt Happy Feet Foot Spa on the same basis as a Reflexology, but if their practice fitted the definition of massage they would need to comply with the same rules. He asked if Reflexology should have a licensing procedure. Mr. Larkin agreed. Council Member Espinosa said he agreed with Council Member Klein’s comments, but not for all the same reasons. He was in agreement of moving the item forward but did not agree that the City needed broad regulations around the field of massage. He felt that when the item was brought back to the full Council there would be Council Members that will raise the question of what was the problem that Staff was trying to resolve, why the proposed revision was needed, and how the Ordinance would solve those problems. He supported the Motion. Council Member Schmid suggested having a clear statement that identified the problem and how the regulations would deal with the problem. He said it would be helpful for Staff to return with more information regarding the ordinances in other cities. The City could do a comparison to what other municipalities were doing in regards to their ordinances. Ms. Tucker said in moving forward it might be helpful for Staff to come back with information regarding historical investigations and arrests around this type of behavior both locally as well as surrounding jurisdictions. The information provided would be done on general information and not individual cases. MOTION PASSED 3-0, Holman Absent City of Palo Alto (ID # 2708) Policy and Services Committee Staff Report Report Type: Meeting Date: 4/10/2012 April 10, 2012 Page 1 of 5 (ID # 2708) Summary Title: Massage Ordinance Follow-up Title: Review and Recommend Council Approval of Proposed Updated Massage Ordinance From: City Manager Lead Department: Police Recommendation Staff recommends that the Policy and Services Committee review the proposed updated Massage Ordinance and recommend approval of the ordinance to the City Council. Executive Summary The draft ordinance was presented to the Policy and Services Committee on February 14, 2012. Committee members requested additional information be prepared and changes be considered to the draft ordinance. Staff has reviewed the proposed ordinance and completed modifications taking into consideration the requests of the Committee and community members. Staff is also prepared to further discuss the modifications and address the questions brought forth at the previous meeting. Background At the February 14, 2012, Policy and Services Committee meeting staff presented proposed revisions to the existing Massage Ordinance, Palo Alto Municipal Code 4.54. Changes to the ordinance are necessitated by new state legislation that changed municipalities’ ability to regulate the practice of massage. Palo Alto’s existing ordinance is in violation of the new state law. Staff revised the ordinance to comply with state law and made additional changes to facilitate the ability of existing practitioners to remain in business. At the meeting, staff outlined the applicable state laws relating to massage regulation and described the input from 1 Packet Pg. 4 April 10, 2012 Page 2 of 5 (ID # 2708) the massage community from several previous meetings. Staff explained how that input was taken into account when drafting the ordinance and how the proposed fee structure was derived. After much discussion from staff and community members, the Policy and Services Committee recommended that modifications to the ordinance be considered and the following questions be addressed at a follow-up meeting on April 10, 2012: 1. Why is it necessary to make the proposed ordinance changes? 2. Why is it necessary to regulate massage at all in the City of Palo Alto? 3. Does the City of Palo Alto have problems with crimes related to massage? 4. Why is there a need for massage establishments to keep client contact records? 5. Are there ordinance language changes that can be made for the establishment requirements in the areas of hot/cold water, table coverings, and the need for safety boxes? 6. What do other cities do with massage and reflexology regulation? 7. What type of language can be added to the ordinance to cover reflexologists and reflexology-only businesses? Discussion Staff conducted additional research and is prepared to address the questions and changes requested by the Committee. 1) Why is it necessary to make the proposed ordinance changes? The current ordinance is out of compliance with state law changes that were made in September 2009. The City of Palo Alto has regulated massage since 1974 when questionable massage establishments were flourishing on El Camino Real. Most states within our country regulate massage to some 1 Packet Pg. 5 April 10, 2012 Page 3 of 5 (ID # 2708) degree and most cities within our’s and adjacent counties have massage ordinances. 2) Why is it necessary to regulate massage at all in the City of Palo Alto? Massage therapy involves full body touching, unlike any other therapy outside of the medical profession. Due to the nature of massage, the predominant types of crimes reported in the massage setting are sexual in nature. Studies have shown that sexual assault crimes are vastly underreported and are likely to happen to many females in a variety of settings, both public and private. The Police Department has received complaints of unwanted sexual contact from customers of massage businesses. In addition, during a community meeting, several massage practitioners told staff they have been victims of unwanted sexual contact by clients. Illegitimate massage businesses have a high likelihood of using victims of Human Trafficking in their business. As most municipalities in the Bay Area have some form of Massage regulation, there is a real risk of attracting illegitimate enterprises to an unregulated environment. 3) Does the City of Palo Alto have problems with crimes related to massage? Over the past 10 years, ten sexual assault-type crimes have been investigated at Palo Alto massage establishments. Research into the availability of adult sensual massage in Palo Alto revealed multiple websites advertizing business to persons in Palo Alto. The crime of prostitution does occur in Palo Alto but is difficult to prosecute without complicated police sting operations. Data from the Records Management System shows Police and Fire responded to 67 calls for service at the three largest massage establishments since the beginning of 2005. 4) Why is there a need for massage establishments to keep client contact records? The purpose of client contact records is to assist law enforcement in fact- finding when criminal allegations are made involving massage therapists. Most other municipalities require client contact reords to be kept. The 1 Packet Pg. 6 April 10, 2012 Page 4 of 5 (ID # 2708) information would only be available to law enforcement with a court order. Client records could aid in an investigation, either to prove or disprove allegations of misconduct against massage practitioners or clients. 5) Are there ordinance language changes that can be made for the establishment requirements in the areas of hot/cold water, table coverings, and the need for safety boxes? Staff reviewed the sections pertaining to hot and cold water availability in establishments and did not make any changes. Staff believes that the existing language allows for flexibility in how hot and cold water is provided. Staff reviewed the section pertaining to establishment table covering material and did not make any changes, because the existing language only requires that tables and table coverings be washable. Specific coverings are suggested, but not required. Staff reviewed the section of hand-drying options and added electric hand-drying devices as an allowable option. Staff reviewed the section requiring locked boxes for personal possessions and removed the requirement. Refer to Attachment A. 6) What do other cities do with massage and reflexology regulation? Many cities in Santa Clara and San Mateo Counties have massage ordinances. Please refer to Attachment B for a comparison of Palo Alto with 13 other cities. Only one city surveyed, Citrus Heights, included a reflexology exemption in its massage ordinance. 7. What type of language can be added to the ordinance to cover reflexologists and reflexology-only businesses? In response to requests from reflexologists who attended the February 14th Committee meeting, staff reviewed the draft ordinance and added a definition for “reflexology” based on definitions from other states that regulate reflexology. Additional language was added to the ordinance to exempt reflexologists when practicing in Palo Alto. 1 Packet Pg. 7 April 10, 2012 Page 5 of 5 (ID # 2708) Resource Impact The revised ordinance will have no fiscal impact on the City. The code enforcement officer who administers the massage permitting program will have additional duties and responsibilities. Timeline Staff recommends presenting the draft ordinance changes to City Council at the next available meeting following approval by the Policy and Services Committee. Attachments: -: Attachment A - PAMC 4.54 (PDF) -: Attachment B - Massage Spreadsheet 032612 (PDF) -: Attachment C - February P&S - Massage Ordinance Minutes -EXCERPT (PDF) Prepared By: April Wagner, Police Lieutenant Department Head: Dennis Burns, Police Chief City Manager Approval: ____________________________________ James Keene, City Manager 1 Packet Pg. 8 1 ***Proposed Massage Municipal Code*** 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 the owners and all practitioners are CAMTC certified. 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 or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. (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 as the principal functions. 1.a Packet Pg. 9 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 2 (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 technician 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 non- profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. (11) “Accessory Technician Permit” A technician 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. 4.54.030 Massage establishment permit required. (a) Except as otherwise provided, it is unlawful for any person to engage in, conduct or carry on, 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. A massage establishment permit shall be issued to any person who has complied 1.a Packet Pg. 10 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 3 with the requirements of Sections 4.54.050 and 4.54.110 of this chapter, and all other applicable 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 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. 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. 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 1.a Packet Pg. 11 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 4 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 addition 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 of the stock of the corporation. If the 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; 8. The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the 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. 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 1.a Packet Pg. 12 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 5 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 of this 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. (b) A permit issued by the chief of police is not required for any massage technician and massage establishments if the owners and 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. 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. 1.a Packet Pg. 13 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 6 (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 the 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 of time. 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 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. 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 reasons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. The chief 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 applicant; (5) Written evidence that the applicant is at least eighteen years of age; 1.a Packet Pg. 14 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 7 (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. 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 proof that 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 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 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 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician 1.a Packet Pg. 15 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 8 permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. 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. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those certified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (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. (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 and/or 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 1.a Packet Pg. 16 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 9 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 into 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 and 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 clean 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 (17), shall not apply to CAMTC certified establishments: (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. (11 p.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 for the 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; 1.a Packet Pg. 17 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 10 (ii) The criteria outlined in Section 4.54.030 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the 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) Every massage establishment and sole proprietor massage establishment shall keep written client records of the following: the date and hour of each service; the name, contact information and sex of each patron; the service provided, and the technician administering the service. A massage establishment is not required to provide client records to the City or any other enforcement agency without an order from a court of competent jurisdiction authorizing the release. (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. 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 time 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. 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. 4.54.140 Business location change. 1.a Packet Pg. 18 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 11 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. 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 a result 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 each such sale or transfer. 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. 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. (4) Reflexologists performing reflexology; however any reflexologist engaged in massage shall be required to comply with the provisions of this Chapter. 4.54.180 Grounds for denial, probation, and disciplinary action. 1.a Packet Pg. 19 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 12 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. 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. 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. 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. 1.a Packet Pg. 20 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) Massage Ordinance Comparison-April 2012 Agency Education Client Records Liability Insurance City Permit Option Exempt Foot Massage Reflexology Language Belmont 500 yes $500,000 yes no no Burlingame 500 yes $500,000 yes no no CAMTC 250 no no n/a no no Citrus Heights* 200 no $2,000,000 yes no yes-exempt reflexology Foster City 500 yes $500,000 yes no no Los Gatos 300 yes $100,000 yes no no Millbrae 500 yes $500,000 yes no uses term 'reflexology' but requires the same permit as massage Mountain View 100 no no yes no but they have 'noncertified' massage establishments no PA(Proposed) 200 yes $100,000 yes considering considering Redwood City CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only San Carlos CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only San Mateo 200 yes $100,000 practitioner $500,000 est.yes no no SMCSO CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only Sunnyvale 100 yes $1,000,000 yes no no *only example of reflexology exemption 1.b Pa c k e t P g . 2 1 -: Attachment B - Massage Spreadsheet 032612 (2708 : Massage Ordinance Follow-up) 1 POLICY AND SERVICES COMMITTEE EXCERPT Regular Meeting February 14, 2012 Chairperson Price called the meeting to order at 6:04 p.m. in the Council Conference Room, 250 Hamilton Avenue, Palo Alto, California. Present: Espinosa, Klein, Schmid Absent: Holman (Chair) 1. Request Policy and Service Committee Review of the Proposed Ordinance Changes to Section 4.54 Massage Establishments. Assistant to the City Manager, Sheila Tucker stated she would be Staffing the Policy and Services Committee this year and looked forward to working with the Council and serving the Committee. Palo Alto Police Lieutenant, April Wagner stated that the City Attorney’s Office and Police Department Staff members had worked on the proposed Ordinance change for over a year. She said that the Palo Alto Municipal Code Ordinance 4.54 was enacted in 1974 to ensure lawful commerce of massage businesses in Palo Alto. The Palo Alto Police Department (PAPD) was responsible for enforcing the Ordinance. In 1996, state laws were anticipated to change the regulation of massage businesses. The City suspended enforcement on portions of the Ordinance that included, permit renewals, fee collections, and site inspections. Background checks and permitting of new massage applicants continued. The current Ordinance, as written, violated state law. The City had 191 City permitted or California Massage Therapy Council (CAMTC) certified massage therapists. Palo Alto had three permitted massage establishments; Water Course, Body Kneads, and the Massage Therapy Center. There were four establishments that should have been permitted under the current regulations. A City audit revealed two dozen unpermitted massage establishments in Palo Alto. The adoption of Senate Bill 731 (SB731) in September 2009 impacted the ability of municipalities to regulate the practice of massage and the CAMTC, a 1.c Packet Pg. 22 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 2 public, non-profit, benefit corporation was created. The corporation standardized and regulated the issuance of certificates to massage therapists and practitioners. Adoption of Assembly Bill 619 (AB619) in 2011, continued legislative work on portions of SB731 that were going to expire. Fifty percent of the massage therapists in Palo Alto were not state-certified. Many local municipalities revisited their ordinance since the passage of SB731. Staff reviewed local updated ordinances and worked with CAMTC Board Members in creating the document. An outreach program was conducted that involved citizens and therapists in a modification review of the Ordinance. Key objectives were to comply with State regulations, to insure qualified trained workers, exempted CAMTC certified practitioners or be permitted by the City, and allowed sole proprietorships in Palo Alto. The final draft change added language to exempt CAMTC holders from obtaining additional City massage permits, increased education from 100 to 200 hours from an accredited school, added sole proprietorship, required malpractice insurance, must display City permits as required by State law, and to maintain limited client records and made available by a court order. The new Ordinance eliminated special building and zoning requirements by State law and added the ability to deny a City permit to an applicant who had been denied, suspended, or had a CAMTC certificate revoked. The cost recovery fees for the program and Staff time were changed to be consistent with other cities. New establishment fees were $750, renewal fee $450; sole proprietorship fee $350, renewal fee $150; massage technician permit $300, renewal fee $150 for people that did not want to be state certified. A 2-year CAMTC certificate fee was $150, plus a $90 Livescan fingerprint or a criminal history check fee. Practitioners were required to have 250 hours and therapists 500 hours of education from an accredited school. CAMTC certified therapists not establishments. In conclusion, the proposed Ordinance would recognize and allow massage practice to occur in Palo Alto, allowed existing therapists and establishments to continue doing business, and allowed time for the therapists to comply with the requirements. Those who chose to patronize the establishments could feel confident that the therapist had met standardized qualifications. The Ordinance was consistent with other municipalities and state requirements. CAMTC Board Members found the draft Ordinance to be compliant with the state law. The passage of the Ordinance would allow the City to resume consistent enforcement on the massage businesses in Palo Alto. Mark Petersen-Perez, PaloAltoFreePress, spoke that massage therapists and practitioners had the right to deny law enforcement officials the ability to view the records unless they had a court order. The information was sensitive and confidential. 1.c Packet Pg. 23 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 3 Vice President Susan Mix, Reflexology Association of California (Association), stated that the Ordinance revision did not unfairly encompass Reflexology within the Massage Ordinance. She said the scope of practice of Reflexology was a non-invasive, natural system of stress reduction and worked on a fully clothed person and only shoes and socks were removed. Work was done from the ankle to the tips of the toes, from the wrists to the tips of the fingers and the outer ear. Reflexologists do not rub backs of a client. The average price charged per session in the Bay Area was $50 to $100. She raised concerns that there may be establishments that were misclassified in Palo Alto as Reflexology and were included in the Ordinance. She urged the City to adopt an exemption to the Massage Ordinance and to create a separate ordinance for professional Reflexologists to protect the public. She said the Association was willing to work with the PAPD to craft an exemption. Vicky Venter, Reflexologist, stated that Reflexology was not massage. The practice of Reflexology was to bring the body back to balance through relaxation through the nervous system and not the musculature system. She said Reflexology should not be governed under massage laws and should have its own laws to include setting educational standards to support public safety concerns. Christine Issel, Reflexologist and Representative of the American Reflexology Certification Board (ARCB), spoke regarding the regulation and licensing of Reflexology businesses. She said some of the requirements that needed to be considered for licensing were evidence of an ARCB certification, proof of membership from one of the professional organization such as the Reflexology Association of California, proof of practitioner liability insurance, Livescan fingerprints, a government issued identification and to require the disclosure form from the California Business and Professional Code. She suggested setting educational standards and fingerprint requirements with the license application to prevent blurring the law and operating under misleading premises. Beverly D’Urson stated that she patronized Happy Feet Foot Spa in Palo Alto. She opposed the revision to the Ordinance because it would take away the ability to choose certain healing techniques. She said the Happy Feet Foot Spa specialized in a certain massage technique and the revised ordinance would force their staff members to obtain a massage permit. Robert Hessen spoke in support of the Happy Feet Foot Spa and asked that new restrictions not be imposed on the establishment. He clarified that the operation functioned in a transparent, open atmosphere that did not encourage inappropriate behavior. He urged the decision-making members 1.c Packet Pg. 24 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 4 to examine the service that the Happy Feet Foot Spa offered before making a final decision. David Bertelsen, Happy Feet Foot Spa owner, raised concerns that the revision to the Ordinance would require staff members to be licensed under the new law. He urged the Council to reject the changes because anyone that practiced any form of massage would be grouped under one umbrella and would require unnecessary licensing. Ping Bertelsen, Happy Feet Foot Spa owner, stated neighboring cities did not require licensing for businesses similar to theirs and that Palo Alto law enforcement officers tried to convince them otherwise. He said the City of Mountain View had passed an ordinance specifically for their type of practice. A new category was created that exempted non-licensed massage practitioners from the standard massage licensing requirements. She said most of the south Bay Area establishments did not require licensing or fees that had the same type of business as theirs. Babs Mitchell stated that the Palo Alto Police Officers had placed restrictive requirements on various equipment and cleaning procedures in her establishment and stated the issues in question should be revisited. She felt that any establishment that practiced any type of massage should be under one ordinance. Dainuri Rott spoke in support of the Happy Feet Foot Spa. He said the services they offered were the only healthcare he used and were affordable. He asked the City to not enforce an ordinance that would force the establishment to discontinue their practice in Palo Alto. Robin Malmquist stated that the definition of the term “therapist”, “technician”, and “practitioner” used in the Ordinance did not coincide with the definition used by CAMTC. They should be the same, consistent, and easily understood. He asked that the Ordinance not be implemented until after all CAMTC applicants were certified. Applicants waiting to be certified were placed in a state of limbo and faced with having to make a choice to either follow the Ordinance route or CAMTC regulations. Council Member Klein asked if the state would occupy the massage field if the City did not move forward on the revision, and that the speakers at this evening’s meeting may or may not be governed by the state. Assistant City Attorney, Donald Larkin clarified that the state’s intent was to not occupy the field of massage if the City did not move forward on the proposed changes. The state’s attempt was to create a permitting system 1.c Packet Pg. 25 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 5 that would take people away from local regulations. He said the Council had three options: 1) to allow massage practice with a state permit enforced through an ordinance, which was similar to the ordinances in neighboring cities. 2) the City allow people to opt out of local regulations by getting state-certified, which the enacted ordinance change would do, and 3) to repeal the City’s Massage Ordinance and not require practitioners to obtain state certification and the option for no regulations. Council Member Klein restated that if the City did nothing, and the City repealed the City’s Ordinance, which was inconsistent with the state law, there would be no regulations at all. Mr. Larkin said practitioners would not be required to be state-certified and there would be no regulation at all. Council Member Klein asked how was this issue handled in unincorporated areas. Mr. Larkin said they were governed by a County ordinance. Council Member Klein said the state provided the City with a system where the City could opt in and state regulations would take over. Mr. Larkin said that was correct. The state preempted the City from regulating anyone certified by the state but did not preempt the City from anyone who was not state-certified. The state placed the responsibility on the City to regulate non-state certified practitioners. Council Member Klein asked if the City could adopt an ordinance that would require practitioners to pay an annual permit fee of $1 if the City felt it did not require any type of regulations. Mr. Larkin said the City could repeal the existing ordinance and not have any regulations or to have a level of regulation such as a $1 annual permit fee to track permitted practitioners. Council Member Klein asked Mr. Larkin if the City repealed the Ordinance and had no regulations, would there be no regulations set by the state. Mr. Larkin said that was correct. Council Member Klein asked if that had been done elsewhere. Mr. Larkin said not in the local area but could not confirm for statewide. 1.c Packet Pg. 26 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 6 Council Member Klein said there was an issue in the 1970’s and asked if the City had encountered issues in the field of massage within the last 30-years. He asked if this discussion would be taking place if the state had not enacted their law. Code Enforcement Officer, Heather Johnson said possibly. She stated that the CMTC was a voluntary, non-profit, program the City could opt into. The state would not take precedence if Palo Alto did not have a set of regulations. People with no formal training in the field of massage would be able to practice in Palo Alto. She said she could not identify cities that did not have ordinance regulations because the focus was on cities that had and studied their municipal code. Council Member Klein said the City had an Ordinance for 15 years that was in a state of suspense and asked if there had been any problems. Ms. Wagner said no. She said in an attempt to be a little more compliant to the changing regulations only portions of the existing Ordinance were suspended. The City continued to allow new practitioners to practice and did background checks. No fees were charged, and no site inspections were made. Council Member Klein said the massage field had its share of problems with prostitution and asked if there had been problems along those lines or in the practice of massage in Palo Alto in the past 30 years. Ms. Johnson said there had been problems. She said 99.9 percent of the therapists did a great job and provided a good service but a small portion did not. Council Member Klein asked about the Reflexology issue. Ms. Johnson said adopting an ordinance to accommodate Reflexology seemed reasonable. Businesses that were discussed at this evening’s meeting did not fall into the category of Reflexology. The Happy Feet Foot Spa practice fell into the description of massage. Their technique was not limited to touching hands, feet, and ears as regulations defined by the Reflexology Association of California. The issue of Reflexology was not addressed because patrons had described the service they received from the Happy Feet Foot Spa fit the definition of massage. Council Member Klein asked about the situation in the Cities of Mountain View and Los Altos. 1.c Packet Pg. 27 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 7 Ms. Wagner stated that the City of Mountain View accommodated a non- certified massage establishment. The establishment and therapist paid fees but was exempted from education requirements. Council Member Klein said his understanding was that there was intent to exempt sole proprietorship. Ms. Wagner said that was incorrect. She said the definition of a sole proprietor was a single person, massage establishment. It basically was a person practicing massage in a rented room in an office space. Charlie Cullen, Deputy Director of Technical Services, clarified that was prohibited under the old Ordinance and a new category was created in order to certify sole proprietors. The City of Mountain View’s situation was an exception to the rule and had a special category that most other municipalities did not support in their ordinance. The City of Los Altos was on tract to require CMATC certification only and not provide any another method to qualify under their local ordinance. Council Member Klein said it was still unclear what was being accomplished for a sole proprietorship massage establishments. Ms. Wagner said in the effort to try to identify massage therapists they were not aware of that were practicing in Palo Alto, they discovered a large number of individuals who had their own personal offices, their own businesses that were single individuals, renting spaces and had clients. The PAPD deemed Palo Alto as a city that should be pro-business. They felt it was inappropriate to have 75 percent of the therapist not be state-certified. This was an incentive to work with these individuals to allow them to run a successful business, which meant having to change current regulations and to allow single persons to have sole proprietorship establishments. Council Member Klein asked if that individual was being regulated. Ms. Wagner said yes, if they were not state-certified. Council Member Klein said he was having trouble with the language as written in the Municipal Code. He said 4.54.020 defined a massage establishment as any establishment with more than one massage technician. Ms. Wagner said that was correct. It was a single person acting as a business owner and a massage technician. 1.c Packet Pg. 28 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 8 Council Member Klein said his interpretation of the code was that this was one individual not subjected to the City’s regulation. Mr. Larkin said the individual was not subjected to the establishment regulations but was subjected to the individual permit regulations. Council Member Klein asked Mr. Larkin where that statement was located and if it referred to the statement “the technician permit would be required.” Mr. Larkin said yes. Council Member Schmid stated the document did not state this was a Police Department matter and needed clarification on why a law enforcement officer was representing the City. Ms. Wagner stated that a Code Enforcement Officer’s position was charged with enforcing this statute. The position assumed the permitting of taxicabs, alarms, massage establishments, solicitors, but she was not sure how far back the history was of the Code Enforcement Officer assuming the responsibility of permitting. Council Member Schmid said Council Member Klein mentioned there were problems in the field of massage in the 70’s and asked if there had been any problems since. He raised concerns that the Police Department was occupied with critical activities and asked if the field of massage was one of them. Ms. Wagner said 99.9 percent of the time there were none but could be a pervasive problem in communities. She confirmed that Palo Alto had its share of illicit activities but no recent incidents had been identified in massage parlors. Passage of the Ordinance would bring the issue to state law and help the Code Enforcement Officer oversee that the practice of massage functioned accordingly in the community. Council Member Schmid said his contact with the Police was through the Police Blotter in the newspaper and had assumed that every police call was listed. He said he did not recall seeing incidents or complaints that pertained to illicit sexual activities. Ms. Wagner confirmed they had gotten calls and some that required special investigation procedures but none were in massage establishments. Council Member Schmid said it would be helpful and important to have a statement that identified these issues in terms of the number of past and 1.c Packet Pg. 29 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 9 present complaints along with the number of incidents that occurred in neighboring cities. The information would identify that these issues were activities handled by the Police Department and not by another City department. Mr. Cullen clarified that historically the issues that Council Member Klein referred to in the 70’s became an enforcement issue for the Police Department. The enforcement permitting process fell under the Police Department’s jurisdiction when the Ordinance was enacted and remained with the Police Department. The Police Department’s Code Enforcement Officer was a non-sworn, civilian, officer who enforced a number of other ordinances and in charge of permitting, ensured that practitioners complied with the rules and the Ordinance. The Code Enforcement Office could initiate an investigation if she saw an illicit activity occurring but the criminal aspect would be investigated by a sworn officer. Council Member Schmid raised concerns that the CAMTC was a non-profit organization that provided education and certification and that a CAMTC permitted practitioner would be outside the local code enforcement. He asked if that implied that a CAMTC permitted individual was not in danger of illicit activity. Ms. Wagner clarified that the CAMTC had a rigorous application process and had the ability to suspend, revoke, or deny a permit based on a complaint. CAMTC thresholds of complaints were low. Their investigation process was extensive and a practitioner under investigation would face heavy scrutiny. Mr. Larkin clarified that the CAMTC was a non-profit organization, a public benefit corporation created by the state government and a quasi- governmental agency similar to the state bar for attorneys. It was not an independent, non-profit without government functions. Council Member Schmid raised concerns regarding establishments to maintain a logbook. Ms. Wagner clarified the logbook was similar to a hotel registry. Law enforcement officers could review the information but would require a court order. The method was to assist both in the defense or prosecution of a therapist working at a business. Council Member Schmid asked if other professions such as physical therapist or personal trainers were asked to maintain a logbook. 1.c Packet Pg. 30 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 10 Ms. Wagner said they did kept records that contained contact information, such as name, address, phone number and services performed. Hair dressers often maintained a logbook for the purpose of sending out mailers. Council Member Schmid stated that would be different than a logbook that contained specific dates, times, and detailed descriptions of services received. Mr. Cullen clarified that the Police Department was sensitive to the issues involved. Customer records in massage establishments would require a subpoena in order for a law enforcement officer to view the records. The process would be similar to any other business that faced a criminal investigation. He wanted to make clear that the subpoena requirement was added to the regulations. Council Member Schmid said the definition of a massage was touching of the exterior space of the body and could include several areas. He felt the definition of massage was too broad. Reflexology stated they did not have the same temptations that led to past abuses. He asked what definition did the Police Department use and if they felt it was too broad. Ms. Wagner stated the practice of massage involved the manipulation or applying pressure to the body. There was the threat of possible injury to the body during manipulation as well as criminal or sexual aspect that could occur. The definition of massage needed to be broad. The intent of the Ordinance was not to focus on the Reflexologist’s scope of work limited to the hands, feet, and ears but work that extended to the manipulation, applying pressure, and touching all over the body. Council Member Schmid noted that one of the speakers stated that half of the states make a distinction between massage therapy and Reflexology. He said the definition was not a standard definition but an interpretation and broader than others used. Council Member Espinosa stated what the Committee was hearing were issues of trying to determine a problem and how to fix it. There was the issue of illicit activities in Palo Alto and for the Council to support the Police Department to quickly address the situation. The other was how the proposed Ordinance change would impact the massage businesses in terms of people getting healthcare services, training requirements for employees, and wanting to protect the public. The impacts would affect the massage business, entrepreneurs, and small businesses without a real good cause and change an industry on services they were able to provide in the 1.c Packet Pg. 31 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 11 community. He asked what Staff’s thoughts were on his comments and if there were concerns in respect to the development of the Ordinance. Ms. Wagner said everyone’s needs were considered in developing the Ordinance. She said that the category “sole proprietorship” was created to allow businesses to occur, to define massage and that all establishments played by the same rules. Additionally, state-certified people would be exempted. Council Member Espinosa asked if information could be collected regarding illicit activities, not on individual cases, if the Committee wanted to get a better understanding if the problem was significant enough to move forward to consider other impacts. Ms. Wagner explained that the nature of illicit activities occurred behind closed doors and did not know if accurate data could be obtained on the number of illicit activities that occurred. Council Member Espinosa asked if full cost recovery was the goal of the price point. Mr. Cullen said cost recovery probably did not cover Staff’s time spent in the implementation and moving forward on permitting. Council Member Espinosa asked Staff what the timeline would be to carve out the Reflexology portion and to come back to the Committee to address the issue. Ms. Wagner said it could take a few months. There were establishments that referred to themselves as Reflexology and performed other services. She did not think it would be necessary to develop an Ordinance solely for Reflexology. She said a definition could be added to the Ordinance to exempt Reflexology. Council Member Espinosa said the speakers touched on issues the Police Department felt that needed stricter regulations such as the method used to wash down equipment, separate faucets to accommodate hot and cold running water, terminology issues, and implementation dates. He asked if Staff could respond to these issues, was Staff in disagreement, or if further discussions needed to occur. Ms. Wagner said the intent was to apply regulations governed by state laws for municipalities to enforce health and safety rules that applied to massage businesses. She said the terminology issues could be revisited to see if a 1.c Packet Pg. 32 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 12 better term could be used to define “technicians”, “practitioners” and therapists”. Mr. Larkin stated that Staff attempted to answer many of the questions during individual meetings with the practitioners and Staff would revisit comments that were overlooked. Council Member Schmid said Reflexology was an alternative type of practice and had a separate form of certification process. He felt that the Happy Feet Foot Spa was not Reflexology or the standard therapy and appeared to be innocuous. He said there was a spectrum of activities that seemed outside the boundaries that was focused on in reviewing the definitions. He suggested looking at how neighboring jurisdictions dealt with their ordinances, not just in a general sense, but what were the differences and how they might apply to what the City was dealing with. Ms. Wagner said they had reviewed other city ordinances and found there were different distinctions. She disagreed with the statement that the situation of having clothes on in an open room was different from clothes off in a closed room. She felt because there was a layer of clothing between the person’s hands and the body they were working on that through pressure and manipulation did not mean a criminal act could not occur. Happy Feet Foot Spa practiced Reflexology but the major portion of their service was full body massage. She understood why people appreciated the low-cost massage option. The intent of the Police Department was not to put anyone out of business. The Happy Feet Foot Spa proprietors were offered solutions to comply with the proposed Ordinance and time for their employees to get proper training. Mr. Bertelsen’s response was that Happy Feet Foot Spa would be put out of business if the employees received the proper education and would leave for better jobs. The Police Department wanted to see the Happy Feet Foot Spa to continue their operations in Palo Alto; however, their practices met the definition of massage and would need to comply with the same rules as other massage businesses in Palo Alto. MOTION: Council Member Klein moved, seconded by Council Member Espinosa that Staff return to the Policy and Services Committee with revised language for the recommended ordinance that excludes Reflexology. Council Member Klein stated that businesses were not always regulated. Regulations came about because of abuses in one form or another. One issue that resulted from licensing was people tried to move around boundaries to have lower-cost alternatives. Society did not allow people who were not appropriately state-certified to do things that were close to what licensed people did and resulted in disagreements. He said he would 1.c Packet Pg. 33 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 13 be willing to exempt Happy Feet Foot Spa on the same basis as a Reflexology, but if their practice fitted the definition of massage they would need to comply with the same rules. He asked if Reflexology should have a licensing procedure. Mr. Larkin agreed. Council Member Espinosa said he agreed with Council Member Klein’s comments, but not for all the same reasons. He was in agreement of moving the item forward but did not agree that the City needed broad regulations around the field of massage. He felt that when the item was brought back to the full Council there would be Council Members that will raise the question of what was the problem that Staff was trying to resolve, why the proposed revision was needed, and how the Ordinance would solve those problems. He supported the Motion. Council Member Schmid suggested having a clear statement that identified the problem and how the regulations would deal with the problem. He said it would be helpful for Staff to return with more information regarding the ordinances in other cities. The City could do a comparison to what other municipalities were doing in regards to their ordinances. Ms. Tucker said in moving forward it might be helpful for Staff to come back with information regarding historical investigations and arrests around this type of behavior both locally as well as surrounding jurisdictions. The information provided would be done on general information and not individual cases. MOTION PASSED 3-0, Holman Absent 1.c Packet Pg. 34 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) FILENAME 1 POLICY AND SERVICES COMMITTEE Draft Action Minutes Regular Meeting April 10, 2011 1. Review and Recommend Council Approval of Proposed Updated Massage Ordinance. MOTION: Council Member Klien moved, seconded by Council Member Espinosa, that the Policy and Services Committee refer the Massage Ordinance back to Staff to revise a) eliminate records requirement, b) include exemption for non-certified massage practicioners, and c) review the remaining language to draft as light of an ordinance as possible. MOTION PASSED 4-0. 2. Discussion and Recommendation of Council Priority Setting Process MOTION: Council Member Klein moved, seconded by Council Member Schmid to place a context statement prior to the definition of a priority, to define a priority as an issue or topic which will receive particular, unusual, and significant attention during the year. The only items to be considered for priorities shall be those proposed in writing by Staff a week prior to the annual Council Retreat, or by one Council Member in time for inclusion in the packet for the annual Council Retreat. To have a three year time limit on priorities. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER the Policy and Services Committee will be the focus of establishing the process of integrating input from all Council Members on an equal basis and will start the process three months before the January sesison AMENDMENT TO MOTION: Council Member Espinosa moved, seconded by Chair Holman to include a goal of no more than three priorities in a year. FILENAME 2 AMENDMENT PASSED: 3-1, Klein no MOTION RESTATED: Council Member Klein moved, seconded by Council Member Schmid to place a context statement prior to the definition of a priority, to define a priority as an issue or topic which will receive particular, unusual, and significant attention during the year. There should be no more than three priorities in a year. The Policy and Services Committee would be the focus of establishing the process of integrating input from all Council Members on an equal basis and will start the process three months before the January Retreat. There will be a fixed list of topics to consider at the Retreat. There will be a goal of no more than three priorities per year. To have a three year time limit on priorities. Staff will prepare this proceedure and return to the Committee prior to returning to the Council. MOTION AS AMENDED PASSED: 4-0 3. Discussion on Policy and Services Committee Workplan Prioritization and Process for Handling New Business No Action ADJOURNMENT: Meeting adjourned at 9:43 p.m. City of Palo Alto (ID # 2906) Policy and Services Committee Staff Report Report Type: Meeting Date: 6/12/2012 June 12, 2012 Page 1 of 2 (ID # 2906) Summary Title: Massage Ordinance Title: Review and Recommend Approval of Massage Ordinance From: City Manager Lead Department: Police Recommendation Staff recommends that the Policy & Services Committee review the revised Massage Ordinance and recommend approval to the City Council. Background The Policy & Services Committee reviewed staff’s recommendations for an updated Massage Ordinance on February 14, 2012 and April 10, 2012, and provided direction to staff to modify various provisions of the proposed Ordinance. Attachment C provides the City Manager’s Report and minutes from the February 14, 2012 Committee meeting. Attachment D provides the City Manager’s Report and minutes from the April 10, 2012 Committee meeting. In response to the Committee’s direction on April 10th, staff eliminated the logbook requirement for the establishments, included exemptions for non-certified massage practitioners, and reviewed the proposed ordinance for any areas that may be modified to be less-restrictive. Discussion Staff revised the draft Ordinance as follows: Eliminated the logbook requirement for establishments. Added the therapist classification of Non-certified therapist (exempt from the education requirement). Added the establishment classification of Non-certified establishment (exempts employees of establishment from education requirement). This classification would require non-certified therapists to undergo a background check. The revised Massage Ordinance may be found in Attachment A. Analysis of Potentially Less Restrictive Ordinance The Committee directed staff to review the Ordinance to draft as light of an Ordinance as possible. The proposed Ordinance may be made less restrictive by 1) reducing the educational June 12, 2012 Page 2 of 2 (ID # 2906) requirements for CPA Certification and/or, 2) decreasing or eliminating the requirement of liability insurance. Attachment B provides a comparison of key provisions of Palo Alto’s current and proposed Ordinance with other local municipalities. The Committee may also consider recommending that the City Council eliminate the City’s therapist certification process all together and require only CAMTC (State) certification. This option removes the City from most of the regulation, oversight, and code enforcement requirements of massage establishments and therapists. If this option is considered, staff would recommend that a background check remain for non-certified practitioners for some public protection. Existing practitioners may be given a grace period to come into compliance with CAMTC certification. The City may also choose to include a non-certified classification for clothed massage in an open area. This option would require a significant re-draft of the existing ordinance. Attachments: Attachment A - Proposed Massage Ordinance 061212 (PDF) Attachment B - Other Cities' Comparison (PDF) Attachment C - CMR & Minutes 02-14-12 (PDF) Attachment D - CMR & Minutes 04-10-12 (PDF) Prepared By: April Wagner, Police Lieutenant Department Head: Dennis Burns, Police Chief City Manager Approval: ____________________________________ James Keene, City Manager ***Proposed Massage Municipal Code*** 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. 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 paris of the f human body with the hands or with the aid of any mechanieal orerect:rieal app::rrams;' 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 combiriation of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. (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 as the principal functions. 1 (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, Of? if said school is not located in California, has complied with standards commensurate with those required in said Section 29025. Any school or institution oflearning 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 technician trainee as required by this chapter. (9) "Person" means any individual, firm, association, partnership, corporation, joint venture o~ combination of individuals. (10) "California Massage Therapy Council" (CAMTC) means the governing non­ profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. (11) "Accessory Technician Permit" A technician 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 remains fully clothed and does not disrobe except below the knee. A noncertified practitioner must: (1) apply for and obtain a noncertified practitioner 2 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. (l3) "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. 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.S4.050 and 4.54.110 of this chapter, and all other applicable 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.l, 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 ofthe 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 establishrllents. (7) That the CAMTC has revoked, suspended, or denied the applicant a permit. 3 4.54.040 Massage establishment permit application fee; renewal (a) Any application for a pennit to operate a massage establishinent 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. 4.54.050 Application for massage establishment permit. (a) Any application for a pennit 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 pennit 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 appli9ant. The chief of police may request the applicant to allow fingerprints to be taken when needed for the purpose of establishing identification. In addition to the requirements of Chapter 1.04 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 of the stock of the corporation. If the 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; 8. The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the employment, other than any person permitted pursuant to Section 4.54.060, along with the proposed or actual nature of the work perfonned or to be perfonned, and recent passport-size photographs, suitable to the police officer or designee processing the application, of each such employee. The chief of police may 4 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. 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. 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 1.54.080, 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 ofthe 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) ofthe 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 of this 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. (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 ·5 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. 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 oftwo hundred (200) verifiable hours on the theory, ethics, history, practice, andlormethods 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 the 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 of time. (3) Applicants for noncertified massage practitioner permits or applicants for noncertified massage establishments permits. 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 pennit 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 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. 4.54.080 Application for massage technician permit. 6 (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 reasons for denial thereof. Ifhe takes neither action, the permit shall be deemed to be issued. The chief of police may request the applicant to furnish fingerprints when needed for the purpose of establishing identification. In addition to the requirements of ~;hapter 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 applicant; (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 ofthe 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. 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,-~ma.i.l a written. statementmo£his . .reaoon&JOfGe:aial­ 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 proof that 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 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 7 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 . 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 violation of Sections 311 through 311.7,313.1,314,315,316,318 or 647(a), 647(b), 64?(d) or 647(h) ofthe 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. 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. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those certified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (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 8 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. (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 into 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 and 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 busill8BB is ill e"8l'~Bll. 13Mftt'ttes sftltll ee th6r6t'l~lJ eletmeei 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 clean 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. 9 The following items, (14) through (17), shall not apply to CAMTC certified establishments: (14) Each service offered, the price thereof, and the minimum length oftime 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. (11 p.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 for the 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 4J)4.140 of Chapter 4.04; (ii) The criteria outlined in Section 4.54.030 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the 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 ~stablishment has maintained the criteria specified in Section 4.54.110(a)(16)(B). (16) Off-premises Massage Prohibited. Except as otherwise provided, no person, , shall engage in any ofthe services permitted under this chapter at any place other than an establishment permitted pursuant to Chapter 4.54. 4.54.120 Inspection by officials. 10 (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 Cali fomi a; (3) Barbers and beauticians who are duly permitted under the laws ofthe state of California. (4) Reflexologists performing reflexology; however any reflexologist engaged in massage shall be required to comply with the provisions of this Chapter. 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. 4.54.190 Hearing. Any pennittee whose permit has been suspended or revoked shall proceed pursuant to the appeal and hearing provisions of Chapter 4.04. ' 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 @Efs@tiI;I@ €iat@ 9f~is sHafter sHaH l!@giB ~@ af~li@ati9B ~r9@@BB aB:€i @9tHfj;r wi~ aU application and other requirements within sixty (60) days following the effective date of this chapter. 4.54.210 Application of other code provisions. Chapters 1.08 and 4.04 shall apply to the subject matter ofthis chapter in all respects, including those not specifically mentioned in this chapter. 12 12 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. (4) Reflexologists performing reflexology; however any reflexologist engaged in massage shall be required to comply with the provisions of this Chapter. 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. 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. 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. 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. Ma s s a g e O r d i n a n c e C o m p a r i s o n - J u n e 2 0 1 2 Ag e n c y E d u c a t i o n C l i e n t R e c o r d s L i a b i l i t y I n s u r a n c e R e f l e x o l o g y L a n g u a g e PA ( C u r r e n t ) 1 0 0 n o n o n o PA ( P r o p o s e d ) 2 0 0 n o $ 1 0 0 , 0 0 0 y e s - e x e m p t r e f l e x o l o g y CA M T C 2 5 0 / 5 0 0 n / a n o n o Be l m o n t 5 0 0 y e s $ 5 0 0 , 0 0 0 n o Bu r l i n g a m e 5 0 0 y e s $ 5 0 0 , 0 0 0 n o Cit r u s H e i g h t s * 2 0 0 n o $ 2 , 0 0 0 , 0 0 0 y e s - e x e m p t r e f l e x o l o g y Ea s t P a l o A l t o dip l o m a f r o m a re c o g n i z e d s c h o o l / or p r o o f o f 1 y e a r s e x p e r i e n c e no n o n o Fo s t e r C i t y 5 0 0 y e s $ 5 0 0 , 0 0 0 n o Lo s G a t o s 3 0 0 y e s $ 1 0 0 , 0 0 0 n o Mi l l b r a e 5 0 0 y e s $ 5 0 0 , 0 0 0 use s t e r m ' r e f l e x o l o g y ' b u t r e q u i r e s the s a m e p e r m i t a s m a s s a g e Mo u n t a i n V i e w 1 0 0 n o n o n o Re d w o o d C i t y C A M T C o n l y * * C A M T C o n l y * * C A M T C o n l y * * C A M T C o n l y * * Sa n C a r l o s C A M T C o n l y * * C A M T C o n l y * * C A M T C o n l y * * C A M T C o n l y * * Sa n M a t e o 2 0 0 y e s $1 0 0 , 0 0 0 p r a c t i t i o n e r $5 0 0 , 0 0 0 e s t . no SM C S O C A M T C o n l y * * C A M T C o n l y * * C A M T C o n l y * * C A M T C o n l y * * Su n n y v a l e 1 0 0 y e s $ 1 , 0 0 0 , 0 0 0 n o * o n l y e x a m p l e o f r e f l e x o l o g y e x e m p t i o n ** C A M T C o n l y c e r t i f i e s m a s s a g e t h e r a p i s t a n d m a s s a g e p r a c t i t i o n e r s . C A M T C d o e s n o t c e r t i f y m a s s a g e e s t a b l i s h m e n t s . T h e r e f o r e th e o n l y co m p a r i s o n s w e c a n m a k e w i t h o t h e r j u r i s d i c t i o n s , C A M T C a n d P a l o A l t o r e g u l a t i o n i s i n r e g a r d s t o t h e r a p i s t a n d p r a c t i t i o n e r s , no t es t a b l i s h m e n t s . City of Palo Alto (ID # 2287) Policy and Services Committee Staff Report Report Type:Meeting Date: 2/14/2012 February 14, 2012 Page 1 of 12 (ID # 2287) Summary Title: Massage Ordinance Revision Title: Request Policy and Services Committee Review of the Proposed Ordinance Changes to Section 4.54, Massage Establishments From:City Manager Lead Department: Police Recommendation Staff requests that the Policy and Services Committee review the proposed updated Massage Ordinance and recommend passage of the ordinance to City Council. Background The City of Palo Alto enacted the current massage ordinance, Palo Alto Municipal Code (PAMC) Section 4.54, to regulate the location of and ensure the lawful commerce of massage businesses in Palo Alto. The ordinance was enacted in 1974 (Attachment A). The Police Department has been responsible for compliance with and enforcement of that ordinance. In 1996, in anticipation of pending State legislation and oversight, the City of Palo Alto suspended enforcement of the massage ordinance. For a variety of reasons, the anticipated State legislation was not passed until 2009. During the interim period, the City of Palo Alto informed massage applicants and previously permitted therapists of the ordinance suspension (Attachment B). The Police Department’s Code Enforcement Officer is responsible for massage permitting and compliance with the ordinance. The Police Department recently revisited the ordinance and State regulations. The review included research into the number of massage practitioners in Palo Alto and a comparison of Palo Alto’s ordinance with other municipalities’ ordinances and with the State regulations and requirements. The Police Department reviewed the massage municipal ordinances of Belmont, San Mateo, Los Gatos, Redwood City, Burlingame, Foster City, Mountain View, and Millbrae. There are 195 massage therapists currently working in the City, 111 of whom are CAMTC certified. Sample research to gauge the current number of unpermitted massage therapists in Palo Alto revealed that the California Avenue business area had approximately 24 unregulated therapists. A number of those therapists are working without permits in solo establishments, in violation of the suspended ordinance. There are currently three businesses within Palo Alto that are permitted as massage establishments; Watercourse Way, Body Kneads, and Massage February 14, 2012 Page 2 of 12 (ID # 2287) Therapy Center. There are four similar businesses in Palo Alto that are not permitted as massage establishments: Equinox, La Belle Day Spa, Destino Spa, and Happy Feet. The Police Department contacted the California Massage Therapy Council (CAMTC) for their regulations on massage therapy. The CAMTC is a public nonprofit benefit corporation established by the State legislature in 2009 to regulate massage practice. Based on the CAMTC regulations and the ordinances of other municipalities, the Police Department and City Attorney’s Office determined it was necessary to redraft major portions of the City’s existing ordinance. These recommended changes include adding an additional massage therapist classification, and suggesting changes to permitting fees. The proposed fee adjustments are consistent with the fees charged by other major cities within Santa Clara County and adjacent counties. State Legislation Senate Bill 731 and Business and Professions Code 4600 Senate Bill (SB) 731, adopted in September 2009, enacted legislation impacting the ability of municipalities to regulate massage establishments (Attachment C). It also created a public nonprofit benefit corporation, the California Massage Therapy Council (CAMTC), and authorized CAMTC to regulate and standardize the issuance of massage therapist and practitioner certificates throughout the state. SB 731 prohibited any city or county from enacting ordinances regulating the practice of massage by CAMTC certificate holders. Under SB 731, persons who apply for and are granted a massage therapist or practitioner certificate are exempt from any local ordinances regulating massage. Under State Law (B&P section 4612), massage practitioners with a valid state certificate may practice massage in any jurisdiction, without having to obtain additional permits from any local regulating body (Attachment D). In addition, the code prohibits local regulating bodies from adding massage specific regulations to massage businesses operated by CAMTC certificate holders. The intent of the bill is to provide uniform regulations statewide and to eliminate the disparate treatment of massage establishments. The code allows local jurisdictions to adopt reasonable health and safety requirements for massage establishments and provides the authority for local jurisdictions to establish an application process for massage practitioners and establishments that choose not to certify through CAMTC. The City of Palo Alto’s existing massage ordinance is not consistent with Senate Bill 731 and includes requirements that are prohibited by SB 731. Assembly Bill 619, approved by the Governor August 3, 2011 On January 1, 2012, new legislation went into effect (AB 619), amending SB 731 and expanding the ability of the CAMTC to enact regulatory powers over certified massage practitioners and therapists. AB 619 changed some of the CAMTC certification renewal dates, required certificate holders to display their certificates and removed some certificate holder liability. CAMTC Guidelines February 14, 2012 Page 3 of 12 (ID # 2287) Business and Professions Code 4600 establishes the CAMTC guidelines for two separate classifications for massage workers: Massage Practitioner and Massage Therapist. The application and certification process for both certifications require education hours in excess of what the City of Palo Alto’s suspended massage ordinance currently requires. The CAMTC contracts with investigators to carefully review the background and qualifications of each applicant prior to approving certification. The following is the criteria for certification by the CAMTC: 4601(a) Massage practitioner: ·The applicant must be 18 years or older. ·Must have successfully completed 250 hours of education from a CAMTC approved school. ·Provide proof of official tax returns. ·Pass a DOJ and FBI background check. ·Have no disqualifying criminal history. 4601(c) Massage Therapist: ·The applicant must be 18 years or older. ·Must have successfully completed from a CAMTC approved school 500 hours of education. ·Must pass a massage and bodywork competency assessment test. ·Provide proof of official tax returns. ·Pass a DOJ and FBI background check. ·Have no disqualifying criminal history. State Law Summary ALLOWED PROHIBITED Local agency may verify information and receive the state certificate holder’s history from CAMTC. Local agency cannot require CAMTC certified massage therapists to obtain a license, permit or other authorization to practice massage. Local agency may adopt reasonable health and safety requirements, i.e., cleanliness of massage rooms, towels and linens, reasonable attire and personal hygiene for persons providing massage services providing it does not impose additional qualifications such as medical exams, background checks or other criteria. Local agency cannot enact ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits or zoning requirements that are different than those requirements that are uniformly applied to all individuals and businesses providing professional services. Local agency may require file copies or other evidence of state certification and must have on premise for review. Local agency cannot enact or enforce existing local building code or physical facility requirements that do not uniformly apply to other professional or personal service February 14, 2012 Page 4 of 12 (ID # 2287) businesses. Local agency may require owner or operator to be responsible for conduct of all employees or independent contractors working on premises of the business, and revoke, or suspend for violations on the premises. Local agency cannot require unlocked doors when there is no staff available to ensure security for clients and massage staff who are behind closed doors or require windows that provide a view into the rooms that interfere with the privacy of clients of the massage business. Local agency may conduct reasonable inspections. Local agency may require the owner/operator to notify the city of any change to name, management or conveyance of the business to another person. Local agency can require a background check on an owner who owns more than 5% of the business and is not state certified. The intention of the state law is to enable consumers to identify legitimate and professional massage therapists and businesses by establishing certain standards and requiring background checks and fingerprinting. In addition, the CAMTC investigates and approves schools of massage that meet CAMTC criteria. CAMTC maintains a list of “suspect” schools and has authority to deny or revoke certifications. Other Municipal Massage Ordinances Other local cities and counties such as Redwood City and the San Mateo County Sheriff’s Office are currently updating their municipal codes relating to massage to comply with SB 731 and AB 619. Other municipalities such as the Cities of San Mateo, Foster City, Belmont, and Burlingame continue to operate with their existing city processes and exempt CAMTC certified therapists, practitioners, and establishments from city regulations. A summary of local municipalities’ massage ordinances follows: ·Santa Rosa, San Rafael, and San Carlos have adopted ordinances that remove the option for city permits and require all massage therapists in their respective jurisdictions to be CAMTC certified. Redwood City and the San Mateo County Sheriff’s office are considering similar ordinances. ·Los Gatos recently adopted an ordinance allowing for two methods of obtaining a permit. This system provides the option of two complying permits; either through CAMTC or through the local permitting process. ·Sunnyvale adopted a similar ordinance. Massage practitioners have two options to comply with the ordinance. They can obtain a massage license issued by the director of public safety by meeting City certification requirements or obtain certification February 14, 2012 Page 5 of 12 (ID # 2287) through the CAMTC process. The Sunnyvale ordinance requires a higher minimum of liability coverage than surrounding cities. ·Mountain View recently updated its massage ordinance which also allows two methods of obtaining a massage permit. Mountain View has included unique establishment and practitioner classifications in its massage ordinance that have specific requirements. The classifications are “Non-certified Massage Permit” and “Non-certified Massage Establishment Practitioner.” Mountain View’s defines a non-certified massage practitioner as a massage practitioner who performs massage in an open and common room without partitions, and the individual in receipt of the massage remains fully clothed and does not disrobe except below the knee. Non- certified massage establishments are defined as establishments that employ exclusively non-certified practitioners. Other than this exemption, the same requirements applicable to normal massage establishments apply to non-certified massage establishments. Discussion The City of Palo Alto’s proposed massage ordinance has been revised to comply with current state laws, including revised municipal fees for permits and provides the option of a local permitting process as an alternative to CAMTC certification. City of Palo Alto Massage Ordinance Proposal The City of Palo Alto Massage Ordinance provides for the orderly regulation of massage establishments and massage technicians in the interests of the public health, safety, and welfare by providing certain minimum qualifications for the operators of massage establishments and for massage technicians and trainees. Staff’s proposed ordinance allows two methods for certification. Massage practitioners can obtain a CAMTC certificate, which will permit them to operate without additional requirements or certification. Those practitioners who do not obtain CAMTC certification can obtain a permit from the City. The proposed ordinance mandates non-CAMTC certified applicants obtain a DOJ fingerprint check and criminal history check. Non-CAMTC applicants must have minimum education hours from an accredited school. The proposed ordinance has less stringent requirements for City applicants than the requirements of CAMTC. The educational hours for a City permit are 200; CAMTC requires either 250 or 500 hours depending on certification level. A grace period of 18 months will be granted to previously permitted Palo Alto therapists to allow the therapists to meet the required additional education. The proposed ordinance would require massage therapists to receive education from schools accredited by the Bureau for Private Post Secondary Education, a government institution of the Department of Consumer Affairs. The City of Palo Alto proposed massage ordinance (Attachment F) encompasses the following changes to the 1974 ordinance: February 14, 2012 Page 6 of 12 (ID # 2287) ·Adds language to exempt CAMTC certificate holders from obtaining an additional City massage permit. ·Increases the education hours (from an accredited school) required for therapists from the current 100 hours to 200 hours. ·Creates a new category of establishment, a sole proprietor, allowing a single person massage business to operate at a fixed location and reduces establishment fees. ·Adds the requirement of malpractice insurance, a minimum of $100,000 liability by all establishments, sole proprietors,and businesses supporting accessory massage technicians. ·Adds the requirement that massage technician permits be on display in a conspicuous location in all establishments. ·Requires all establishments to maintain limited client records including contact information, to be furnished upon court order to investigating City officials. ·Eliminates any special building requirements for massage establishments, as required by SB 731. ·Eliminates zoning requirements specifically targeting massage establishments. ·Adds the ability to deny massage technician permit issuance to any person the CAMTC has previously revoked, suspended, or denied. Permitting fees were determined by estimating staff time required for the permitting process and a survey of surrounding agencies’ fees (Attachment G). The City of Palo Alto’s review of those fees concluded that reasonable annual massage therapist and establishment rates for the City are as follows: Massage Establishments (New) $750 (Renewal) $450 Sole Proprietor establishment (New) $350 (Renewal) $150 Massage Technician (New) $300 (Renewal) $150 Community Discussion Following the creation of the draft ordinance, police staff posted the draft ordinance on the City’s website. Staff invited massage therapists and establishment proprietors operating in Palo Alto to a series of community meetings. The two meetings were attended by police staff and the Assistant City Attorney on April 5, 2011 and June 2, 2011. A CAMTC Board Member attended the June 2nd meeting. On May 18, 2011, Police Department staff held a multi- jurisdictional meeting with the CAMTC board members and staff from other municipalities to clarify the intent and reading of SB 731. The following paragraphs outline the specific meeting dates and discussion. April 4, 2011-Meeting with Watercourse Way Representatives Police Department staff met with the business owner and an administrator from Watercourse Way (WCW), a massage establishment in Palo Alto. WCW staff expressed concerns about the February 14, 2012 Page 7 of 12 (ID # 2287) potential impact the updated massage ordinance would have on their business. WCW staff felt that the ordinance did not comply with B&P 4601 as it was written and that it was unfairly targeting their business. WCW staff thought the fees were unfair and questioned why they were going to be assessed after 15 years of no enforcement. WCW staff was also concerned about the change in zoning ordinances for massage business and the possibility of additional competition. Department staff noted all of the concerns and WCW representatives were included in subsequent discussions and review of the draft ordinance. Community Meeting on April 5, 2011 On April 5, 2011, a general community meeting was held in the Council Chambers to discuss the draft ordinance. The meeting was attended by police staff and the Assistant City Attorney. Approximately 60-70 persons, many of whom were practitioners, attended the meeting. The proposed changes to the ordinance were read aloud for the community members. Staff explained the reasons for updating the ordinance and acknowledged that considerable time had passed since the City stopped assessing fees for massage permitting and enforcing of the existing ordinance. Staff explained the review process of other municipal ordinances and the research conducted into new State laws regulating the massage industry. Staff also supplied printed copies of the draft ordinance. Community members voiced a number of concerns during the meeting. A principal concern with the initial draft was a requirement that all establishments must maintain a “log book,” recording information about the client including contact information, services rendered, and date and time of service, to be furnished to Police personnel upon request. Other municipalities have this requirement to assist in criminal investigations. Massage establishment proprietors challenged the legality of the log book. Community members also wanted to eliminate the requirement of a citizen needing a physician’s note to allow in-home or “outcall” massage practice, feeling it was an undue burden on the therapist and client. In addition, some practitioners did not think it was necessary to have to provide a locked receptacle for securing client’s personal items. Members requested a “grandfather” provision, waiving additional education requirements for therapists currently permitted with the City. Staff assured the community members that all of their input and concerns would be considered before a final draft of the ordinance was authored. May 5, 2011 meeting with Happy Feet owner Police Department staff met with the owner of Happy Feet in Palo Alto, Mr. Bertlesen. Happy Feet is an unpermitted massage establishment that offers low cost full body massage with the clients fully clothed. Mr. Bertlesen does not feel that his business of “reflexology” and “foot massage” met the definition of “massage” as defined in the City’s ordinance. Mr. Bertlesen believes that his employees should be exempt from meeting the education requirements of the ordinance and that they should not have to be permitted as massage technicians with the City. His employees are not CAMTC certified. Happy Feet employees do not have any verifiable education in massage technique. Mr. Bertlesen stated the employees of Happy Feet are paid February 14, 2012 Page 8 of 12 (ID # 2287) low wages, and only for the actual time they spend doing massage. Happy Feet’s business model keeps his low-cost massage business operating, and Mr. Bertlesen stated if his employees were required to meet certification standards they would leave his business for other employment. Staff listened to Mr. Bertlesen’s concerns and reviewed the definition of “massage” with him. The hands-on nature of the full body massage that Happy Feet provides clearly puts the business within the category of a massage establishment. Staff discussed the possibility of allowing an exemption for a foot massage only business. Staff advised Mr. Bertlesen that if his business provided full body massage the therapists would be required to meet the certification standards in the ordinance. Staff offered suggestions such as allowing extra time for him to bring in a CAMTC certified trainer who spoke other languages, so that his staff could meet the education requirements of the City’s ordinance. May 18, 2011-Multi-Jurisdictional CAMTC Meeting In order to fully understand and comply with SB 731 regulations, police staff organized a meeting with CAMTC board members to explain the State Council’s purpose and regulatory function. Representatives from other cities were invited to the meeting and were in attendance. The CAMTC board members clarified how municipalities can enforce their own massage ordinances. The CAMTC recommended the option that cities adopt a rule to only allow CAMTC certified practitioners and therapists to operate within their jurisdiction. That option would allow for very little oversight and regulation as CAMTC certificate holders are exempt from the City permit process to practice massage. The CAMTC also has stringent education guidelines, completes thorough background checks, and has the ability to suspend or revoke certifications upon validated complaints. The requirements for CAMTC certification are more stringent than the proposed City ordinance. If the City of Palo Alto adopted an ordinance that only CAMTC certified therapists work within the city approximately 50 percent of the current therapists would not be able to work until they gained the required certification. May 19, 2011 and May 26, 2011-Small Group Massage Therapist Meetings Staff met one on one with therapists representing large businesses, as well as sole- proprietorships. The meetings were held to discuss areas of contention and to review an updated draft of the ordinance. The topics of discussions included displaying photographs of the permit holders, appropriate closing times for establishments, and outcall issues. Final Draft changes Following the community meetings, the meeting with CAMTC, and the one on one meeting with massage therapists, staff re-visited several major portions of the draft ordinance. The ordinance was changed taking into consideration the concerns of the massage practitioners and business owners. The following changes were made: February 14, 2012 Page 9 of 12 (ID # 2287) ·Logbooks: Many cities require massage establishments to maintain client records reflecting type of service rendered and basic client contact information. The records are supposed to be made available for law enforcement inspection upon the complaint of criminal activity that may have occurred at the establishment, to aid in the investigation. The logbook mandate is a legal request from municipalities. In order to address privacy concerns, the proposed ordinance requires that client information be recorded in some manner; however the information would be made available to law enforcement personnel only pursuant to a court order. ·Education:The existing ordinance required 100 hours of education prior to permit issuance. That requirement is far below the 500 hours required of CAMTC certified therapists and well below the requirements of other comparable municipalities. The proposed ordinance requires 200 hours of education. A grace period of 18 months would be granted to previously permitted therapists to allow the therapists to meet the required additional education. The staff recommendation is acceptable to most members of the massage community. ·Definition: Staff recommends keeping the definition of “massage establishment” as follows; “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 or carried on massages, baths, or health treatments involving massage or baths, where massage is part of primary function of the business.Only one currently unpermitted establishment disagreed with this definition, contending that full body massage with clothing on did not fall under the category of a massage establishment. ·Wording: The massage community at large felt the wording in previous drafts was unclear in respect to differentiating between state certification and city permits. Staff made changes to the ordinance to clearly establish that state certified massage therapists and technicians were exempt from City permitting requirements. ·Ability to Deny Permit: In section 4.54.030, staff added the ability to deny permit issuance if a person had previously been revoked, suspended, or denied a permit from the CAMTC. No persons contested this addition. ·Photos:The original draft ordinance contained a provision mandating permit holders display their City massage technician permit with photograph at their place of work for clients to view (CAMTC certified persons must do this). Community members commented that they felt the photo requirement was unfair and that clients may see photos and choose a therapist based on their appearance. Staff agreed the establishments can meet this requirement of public display by maintaining a permit binder to be furnished upon client request. ·Outcall: Staff recommends that the City not issue permits to allow massage practitioners to perform “outcall massage.”. This is consistent with the current practices of many municipalities. The existing ordinance allowed outcall only with a doctor’s prescription. This exception rarely occurred and proved difficult for City staff to verify. Staff February 14, 2012 Page 10 of 12 (ID # 2287) recommends prohibiting outcall for all City-permitted therapists and allowing outcall for state-certified therapists in accordance with state law. Second Community Meeting-June 2, 2011 Staff held a second community meeting to address issues with the updated draft ordinance. Community members were able to review the draft prior to the meeting. Staff reviewed the areas of discussion and highlighted the changes. There was little discussion or questions after the review of the final draft. Options for Regulating Massage Staff has drafted a proposed ordinance that brings it into compliance with State Law. The City has several options on how it may regulate massage practice. Those options are: 1. Allow CAMTC certified workers and businesses only. The benefits of this approach would allow for consistency among workers and businesses as to rules and regulations. The City would be unable to regulate such workers and businesses differently than other professional services. In Palo Alto, 50 percent of persons operating as permitted massage therapists do not have state certification. Staff believes having a state certification only policy is unfair to current practitioners that have been working for years in the City without state certification. The three current establishments in Palo Alto are not state certified. Under existing state law, a worker would have had until January 1, 2012 to demonstrate that they have the equivalent experience and education to justify certification without meeting the 250-500 hour requirement from an approved school, pass the background process, and pay state fees. The massage community of Palo Alto was not in favor of this approach, as many persons would be unable remain working in the city due to the amount of time it takes to receive approved education and complete the state certification process. 2. Create a hybrid approach with one set of regulations for City permitted workers and businesses and a separate set of regulations for CAMTC certified workers and businesses. This allows the City to retain its authority over those workers and businesses that do not become state certified and allows the City to retain authority in limited areas over state certified workers and businesses. The disadvantage of this approach is that it is cumbersome, creates additional work, and causes potential confusion between the two processes. 3. Continue with the existing City process, with modification for state regulations, and exempt CAMTC certified workers and establishments from the City regulation. The benefit of this approach is that it is simple and involves no substantial change to existing city law, with the exception of the state-mandated changes. This allows for currently working therapists to continue working in Palo Alto as they have been, after obtaining a City permit. Recommendation February 14, 2012 Page 11 of 12 (ID # 2287) Staff recommends the adoption of Option #3. Staff recommends updating the existing ordinance to comply with state law. This is the best option for both the City and the therapists who work in Palo Alto. The community meetings provided the opportunity for the massage community to have input and voice concerns about the proposed changes to the ordinance. Those concerns were identified, vetted, and addressed in the follow-up community meetings and the one-on-one meetings with community members. Individual members of the massage community assisted in the final review of the proposed ordinance. The proposed ordinance was revised with consideration of the input from the meeting participants. The proposed ordinance recognizes the needs of the massage community and represents compromise by the City and the massage community. The proposed ordinance recognizes and allows the practice of massage therapy in the City of Palo Alto. The ordinance allows existing massage technicians and establishments to continue doing business, and provides a reasonable timeline for therapists to comply with the educational requirements of the ordinance. The intent of the ordinance is to ensure that those who offer massage services are qualified, trained, and conduct their work in a lawful and professional manner. Persons who choose to patronize the therapists within Palo Alto can have confidence that the therapists have successfully met standardized qualifications. The proposed ordinance is consistent with other local municipalities and State standards. The ordinance also allows greater flexibility for business persons to operate within the City in a safe and reasonable manner. The passage of the proposed ordinance will allow the City to resume consistent enforcement of massage practice within Palo Alto. Resource Impact The passage of the proposed ordinance will require considerable staff time to get all current therapists permitted and sole proprietorships and establishments permitted/inspected. The ordinance establishes a grace period of 18 months for educational requirements and 60 days for massage establishments to become compliant. The ordinance requires annual inspections by a Police Department staff member that can be completed within the existing job classification of Code Enforcement Officer and within the existing Police Department budget. Larry Perlin, from the Planning Department, was consulted and a building inspector will be notified of inspection times and days so they may send a representative when available. Staff costs will be recovered through the collection of permit fees. Attachments: ·Attachment A -PAMC 4.54 (PDF) ·Attachment B -Temp Permit (PDF) ·Attachment C -SB 731 (PDF) February 14, 2012 Page 12 of 12 (ID # 2287) ·Attachment D -B&P Code 10.5 (PDF) ·Attachment E -AB 619 (PDF) ·Attachment F -Proposed PAMC 4.54 (PDF) ·Attachment G -Other Cities'Fees (PDF) ·Attachment H -Letters to Council re Massage Ordinance 020812 (PDF) Prepared By:April Wagner, Police Lieutenant Department Head:Dennis Burns, Police Chief City Manager Approval: ____________________________________ James Keene, City Manager Attachment A Sections: Palo Alto Municipal Code Chapter 4.54 MASSAGE ESTABLISHMENTS 4.54.010 Purpose and intent. 4.54.020 Definitions. 4.54.030 Massage establishment license required. 4.54.040 Massage establishment license application fee. 4.54.050 Application for massage establishment license. 4.54.060 Massage technician permit required. 4.54.070 Massage technician application fee. 4.54.080 Application for massage technician permit. 4.54.090 Massage technician trainee. 4.54.100 Appeal. Page lof12 4.54.110 Massage establishment facilities and operations requirements. 4.54.120 Inspection by officials. 4.54.130 Business name. 4.54.140 Business location change. 4.54.150 Sale or transfer of massage establishment interest. 4.54.160 Display of permits, licenses. 4.54.170 Exemptions. 4.54.180 Grounds for denial, probation, and disciplinary action. 4.54.190 Hearing. 4.54.200 Application to existing establishments and technicians. http://www.amlegal.comlalpscripts/get-content.aspx 11/22/2011 Page 20f12 4.54.210 Application of other code provisions. 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. (Ord.2833 § 1 (part), 1974) 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 establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on massages, baths or health treatments involving massage or baths as the principal functions. (3) "Massage technician" 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. (4) "Recognized school of massage" means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage, which school or institution of learning requires a residence course of study of not fewer than seventy hours to be given in not more than three calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which 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." (5) "License" means the business license to operate a massage establishment as required by this chapter. (6) "Permit" means the permit to engage in the activities of a massage technician or a massage technician trainee as required by this chapter. http://www.amlegal.com/alpscriptsl get ~content.aspx 11/22/2011 Page 3 of 12 (7) "Person" means aJ1Y individual, firm, association, partnership, corporation, joint venture or combination of individuals. (Ord. 2833 § 1 (part), 1974) 4.54.030 Massage establishment license required. (a) It is unlawful for any person to engage in, conduct or carry on, in or upon any premises within the city the operation of massage establishment without the license obtained from the chief of police as required by this chapter. A massage establishment license 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 of this code; unless grounds for denial of such license 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 license; (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, 3l3.1, 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. (Ord. 3113 § 4, 1979: Ord. 2946 § 1, 1976: Ord. 2921 § 9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.040 Massage establishment license application fee. Any application for a license 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. A license to operate a massage establishment shall be renewed annually. The renewal fee shall be as set forth in the municipal fee schedule. (Ord. 2960 § 27, 1976: Ord.2921 § 1, 1976: Ord. 2833 § 1 (part), 1974) http://www.amlegal.comlalpscripts/get-content.aspx 11122/2011 Page 4 of 12 4.54.050 Application for massage establishment license. (a) Any application for a license to operate a massage establishment shall be made with the chief of police. Within thirty working days following receipt of a completed application, the chief of police shall either issue the pennit 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 therefor, 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 addition to the requirements of Chapter 4.04 and this section, any applicant shall furnish the following information: (1) 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; (2) Written proof that the applicant is at least eighteen years of age; (3) Applicant's height, weight, color of eyes and hair; (4) The applicant shall allow the police officer processing the application to take photographs of the applicant; (5) Business, occupation or employment history ofthe applicant for the three years immediately preceding the date of the application; (6) 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 of the stock of the corporation. If the 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; (7) The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the employment, other than any person licensed 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 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 licensee 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; (8) Such other information as may be deemed necessary by the chief of police. (Ord.2946 § 2, 1976: Ord. 2921 § 9, 1976: Ord. 2833 § 1 (part), 1974) http://www.amlegal.comlalpscripts/get-content.aspx 11122/2011 Page 5 of 12 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. A massage technician permit shall be issued to any person who has fulfilled the requirements of Section 4.54.080, and all other applicable provisions of this code; 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 license; (2) The applicant has, within five years immediately preceding the date of the flling 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 of this chapter, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage establishments or massage technicians. (Ord. 3113 § 5, 1979: Ord. 2921 §§ 2, 9, 1976: Ord. 2833 § 1 (part), 1974) 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 license to operate a massage establishment and who desires to act as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. (Ord.2960 § 28,1976: Ord. 2921 § 3,1976: Ord. 2833 § 1 (part), 1974) 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, 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. The chief 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 information: http://www.arnlegal.com/alpscripts/ get -content.aspx 1112212011 Page 6 of 12 (1) Name, residence address and telephone number; (2) Social security number and drivds license number, if any; (3) Applicant's weight, height, color of hair and eyes; (4) The applicant shall furnish a recent photograph of applicant to the police department official who processes the application; (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 the applicant showing the applicant has completed not fewer than seventy hours of instruction, or written and verified proof that applicant has had at least five hundred hours' experience in the profession, work and method of massage as of the effective date of the ordinance codified in this chapter. (Ord. 2921 §§ 4, 9, 1976: Ord. 2833 § 1 (part) 1974) 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, 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 the requirements of Section 4.54.080 and who produces written proof that the applicant is currently emolled in a recognized school of massage, as defined in this chapter; of the date the applicant emolled in the recognized school of massage; and the scheduled date of graduation; and that the applicant has completed 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 licensed 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 ofthis 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 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 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. http://www.amlegal.com/alpscripts/get-content.aspx 11122/2011 Page 7 of 12 The trainee permit shall allow the student to work 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; provided, however, no licensed massage technician shall be permitted to supervise more than two persons issued a trainee permit. The trainee permit shall expire three months from the date of issuance and shall not be renewed unless good cause is shown by the applicant for such renewal. 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. (Ord. 2960 § 29, 1976: Ord. 2921 §§ 5,9, 1976: Ord. 2833 § 1 (part), 1974) 4.54.100 Appeal. In the event a permit or license application has been denied, the applicant shall proceed pursuant to the appeal and hearing provision in Chapter 4.04. (Ord. 2833 § 1 (part), 1974) 4.54.110 Massage establishment facilities and operations requirements. (a) All massage establishments shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (2) A minimum of one tub or shower, and 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. (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. http://www.amlegal.com/alpscripts/ get -content.aspx 11122/2011 Page 8 of12 (7) All lavatories or wash basins shall be provided with hot and cold running water, soap and single-service towels in wall-mounted dispensers. (8) Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patron shall be available for the protection of the valuables of the patrons. (9) Every portion of a massage establishment, including appliances, apparatus and personnel, shall be kept clean and operated in a sanitary condition. (10) All massage establishments shall be provided with 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 fust been laundered. Heavy white paper may be substituted for sheets; provided, that such paper is used once for each person and then discarded into a sanitary receptacle. (11) 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 and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use. (12) 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. (13) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof materiaL (14) (A) To protect patrons from potential health and sanitary hazards, all employees, massage technicians and massage technician trainees shall be clean 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 whep 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. (15) Each service offered, the price thereof, and the minimum length of time such service shall be performed shall be posted in a conspicuous public location in each massage establishment. All letters and numbers shall be capitals, and not less than one-half inch in height. (16) (A) Massage establishments shall close and remain closed from eleven p.m. to nine 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 for the 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 of this chapter; http://www.am1egal.comlalpscripts/get-content.aspx 1112212011 Page 9 of 12 (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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal ofthe underlying license 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 4.54.11 0(a)(16)(B). (17) No massage establishment shall be allowed in the following locations: (A) Within two hundred fifty feet of the exterior property limits of any public or private elementary school, junior high school or high school; (B) Within two hundred fifty feet of the exterior limits of any district where residential use is the principal permitted use, including all R and RM districts, O-S districts, and any P-C or P-F districts where the principal use permitted or maintained is residential; or (C) Within twelve hundred feet of the ex-terior property limits of any other premises lawfully occupied by a massage establish-ment, by any establishment subject to the provisions of Chapter 4.55, any cardroom or hot tub/sauna establishment. For the purpose of determining compliance with this standard, as to, between and with respect to establishments lawfully in operation on the effective date of this section, priority between such existing establishments shall be assigned in accordance with the dates upon which said establishments commenced such lawful operations. All massage establishments lawfully in operation on the effective date of this section shall within sixty days of said date apply to the chief of police for a determination as to compliance with the provisions of this section. Said application shall be in such form as prescribed by the chief of police. Any massage establishment legally existing on the effective date of this subsection and which is not in compliance with the provisions of this subsection shall comply with said provisions on or before May 24, 1987; provided, however, that any such establishment which intends to in any way transfer ownership or alter or change the nature of any such massage establishment on or after the effective date of this subsection shall comply with the provisions of this subsection prior to such transfer, alteration or change. Any such use which at the expiration of said period is not in compliance with the provisions of this subsection shall at that time discontinue and abate its operation. Any massage establishment lawfully in operation upon the effective date of this subsection failing to comply with the provisions of this subsection shall be issued a limited-term license in lieu of its current license, containing a statement on its face reciting such noncompliance and the date by which compliance must be accomplished, and that said license shall not be renewed beyond said date. All distances referred to in this subsection shall be measured between the closest points on the http://www.am1egal.comlalpscripts/get-content.aspx 11122/2011 Page 10 of12 exterior property lines or area boundaries of the parcels or areas involved~ except that when a massage establishment subject to the provisions of this section occupies one unit of a multi-unit structure located on a single parcel~ distances shall be measured from the exterior boundaries of the unit so occupied. (18) Outcall Prohibited. No person shall engage in any of the services permitted under this chapter at any place other than an establishment licensed pursuant to Chapter 4.54, unless the patron possesses and presents a valid prescription or other writing from a licensed physician to the effect that the patron of such services cannot be treated at a licensed massage establishment. A record of every such prescription or other writing shall be obtained and kept by the person rendering the services for a period of one year. Such record shall show the name and address of the doctor, the date, and any prescription number. (Ord. 4642 § 3, 2000: Ord. 3592 § 1, 1985: Ord. 3113 § 6, 1979: Ord. 3095 § I, 1978: Ord. 2946 § 3, 1976: Ord. 2921 § 6, 1976: Ord. 2833 § 1 (part), 1974) 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 time 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. (Ord.2833 § 1 (part), 1974) 4.54.130 Business name. No person licensed to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the license. (Ord. 2833 § 1 (part), 1974) 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 oflocation 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. (Ord. 2960 § 30, 1976: Ord. 2921 §§ 7, 9, 1976: Ord. 2833 § 1 (part), 1974) 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 license, 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 a result of such sale or transfer, and if such person http://www.amlegal.comlalpscripts/get-content.aspx 1112212011 Page 11 of12 satisfies the requirements relating to massage establishment license applicants, the existing license 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 each such sale or transfer. (Ord. 2960 § 31,1976: Ord. 2921 §§ 8,9,1976: Ord. 2833 § 1 (part), 1974) 4.54.160 Display of permits, licenses. The owner or operator of a massage establishment shall display the massage establishment license 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. Passport-size photographs of the licensee and permittees shall be affixed to the respective license and permits on display pursuant to this section. Home addresses of massage technicians and massage technician trainees need not be displayed. (Ord. 2833 § 1 (part), 1974) 4.54.170 Exemptions~ (a) 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 licensed to practice their respective professions in the state of California; . (2) Nurses registered under the laws of the state of California; (3) Trainers of any amateur, semiprofessional or professional athlete or athletic team; (4) Barbers and beauticians who are duly licensed under the laws of the state of California. (Ord. 2833 § 1 (part), 1974) 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 licenses and permits required under this chapter. Any circumstances constituting grounds for denial shall also constitute grounds for revocation, suspension or disciplinary action. (Ord. 3113 § 7,1979: Ord. 2833 § 1 (part), 1974) 4.54.190 Hearing. Any licensee or permittee whose license or permit has been suspended or revoked shall proceed pursuant to the appeal and hearing provisions of Chapter 4.04. http://www.amlegal.com/alpscriptslget-content.aspx 1112212011 Page 12 of 12 (Ord. 2833 § 1 (part)~ 1974) 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 comply with all application and other requirements within thirty days following the effective date of this chapter. (Ord. 2833 § 1 (part)~ 1974) 4.54.210 Application of other code provisions. Chapter 4.04 shall apply to the subject matter of this chapter in all respects, including those not specifically mentioned in this chapter. (Ord. 2833 § 1 (part), 1974) Pi~~I~im~G This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing Corporation provides these documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. For further information regarding the official version of any of this Code of Ordinances or other documents posted on this site, please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588. © 2011 American Legal Publishing Corporation techsupport@.~rnLegaJ.com 1.800.445.5588. http://www.amlegal.comlalpscriptslget-content.aspx 11122/2011 Attachment B January 25, 2011 Ideal Health Chiropractic 744 San Antonio Rd., Ste. 10 Palo Alto, California 94303 Dear Mr. ~i!y 9£ Palo Alto Police Department The normal permit renewal process for massage permits has been suspended due to pending changes to Palo Alto's massage ordinance. This letter will serve as your temporary massage technician permit. This permit will allow you to provide massage as an accessory service at Ideal Health Chiropractic, located at 744 San Antonio Rd., Ste. 10, Palo Alto, CA 94303, provided total massage services (other than those based on a diagnosed condition and completed within the scope of a State issued license) do not exceed 25% of the businesses overall activity. It will remain valid until after a new substantially modified massage code is enacted. This temporary permit will terminate at such time as the future massage code indicates as the date certain by which all permittees must have renewed their permits under the authority of the reenacted massage code. Please retain this permit. Until such time as a revised massage ordinance takes effect, massage will continue to be governed by Palo Alto's current Municipal Code Chapter 4.54. You will t;>e advised of meeting dates as the proposed ordinance moves forward. Sincerely, Heather Johnson Code Enforcement Officer Palo Alto Police Department 275 Forest Avenue Palo Alto, CA 94301 Direct: (650) 329-2147 Fax: (650) 326-8819 Email: heather.johnson@cityofpaloalto.org Website: www.city.palo-alto.ca.us/ Cc: Dr. Fax: Printed with soy-based inks on 100% recycled paper processed without chlorine 275 Forest Avenue Palo Alto, CA 94301 650.329.2406 650.329.2565 fax 650.617.3120 Administration fax Attachment C Senate Bill No. 731 CHAPTER 384 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. [Approved by Governor September 27, 2008. Filed with Secretary of State September 27, 2008.J 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 alTested for, and charged with, specified crimes. The bill would make it an unfair business practice for a person to state, advertise, or represent that he or she is certified or licensed by a governmental agency as a massage therapist or practitioner, or to make other false representations, as specified. The bill would prohibit a city, county, or city and county from enacting certain ordinances regulating the practice of massage by a certificate holder, as specified. The bill would make its provisions subject to review by the Joint Committee on Boards, Commissions, and Consumer Protection. The bill would repeal these provisions on January 1,2016. 90 Ch.384 2- The people of the State of California do enact asfollows: SECTION 1. It is the intent of this act to create a voluntary certification for the massage therapy profession that will enable consumers to easily identify credible certified massage therapists; assure that certified massage therapists have completed sufficient training at approved schools; phase in increased education and training standards consistent with other states; assure that massage therapy can no longer be used as a subterfuge to violate subdivision (a) or (b) of Section 647 of the Penal Code; and to provide a self-funded nonprofit oversight body to approve certification and education requirements for massage therapists. SEC. 2. Chapter 10.5 (commencing with Section 4600) is added to Division 2 of the Business and Professions Code, to read: CHAPTER 10.5. MASSAGE THERAPISTS 4600. As used in this chapter, the following terms shall have the following meanings: (a) "Approved school" or "approved massage school" means a facility that meets minimum standards for training and curriculum in massage and related subjects and that is approved by any of the following: (1) The Bureau for Private Postsecondary and Vocational Education pursuant to former Section 94739 of the Education Code prior to July 1, 2007, and as of the date on which an applicant met the requirements of paragraph (2) of subdivision (b) or subparagraph (A) of paragraph (2) of subdivision (c) of Section 4601. (2) The Department of Consumer Affairs. (3) An institution accredited by the Accrediting Commission for Senior Colleges and Universities or the Accrediting Commission for Community and Junior Colleges of the Western Association of Schools and Colleges and that is one of the following: (A) A public institution. (B) An institution incorporated and lawfully operating as a nonprofit public benefit corporation 'pursuant to Part 2 (commencing with Section 511 0) 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 of the criteria in subparagraph (B) that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 511 0) 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. 90 -3 Ch.384 (5) A school of equal or greater training that is approved by the corresponding agency in another state or accredited by an agency recognized by the United States Department of Education. (b) "Compensation" means the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. (c) "Massage therapist," "bodyworker," "bodywork therapist," or "massage and bodywork therapist" means a person who is certified by the Massage Therapy Organization under subdivision (c) of Section 460 I and who administers massage for compensation. (d) "Massage practitioner," "bodywork practitioner," or "massage and bodywork practitioner" means a person who is certified by the Massage Therapy Organization under subdivision (b) of Section 460 I 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 50 I (c )(3) ofTitle 26 of the United States Code. The organization may commence activities as authorized by this section once it has submitted a request to the Internal Revenue Service seeking this exemption. (f) "Registered school" means a facility that meets minimum standards for training and curriculum in massage and related subjects and that either was recognized by the Bureau for Private Postsecondary and Vocational Education pursuant to Section 94931 of the Education Code prior to July 1,2007, and as of the date on which an applicant met the requirements of paragraph (2) of subdivision (b) or subparagraph (A) of paragraph (2) of subdivision (c) of Section 460 I, or is recognized by the Department of Consumer Affairs, by an institution accredited by the senior commission or the junior commission of the Western Association of Schools and Colleges as defined in paragraph (2) of subdivision (a) of Section 4600, by a college or university of the state higher education system as defined in Section 100850 of the Educatiol1 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 oftwo 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 persons: 90 [ I 11 I I I Ch.384 4- (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 other professional directors as determined by the board. (2) The initial board of directors shall establish the organization, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the organization. The initial board of directors, in its discretion, may immediately undertake to issue the certificates authorized by this chapter after adopting the necessary bylaws or other rules, or may establish by adoption of bylaws the pennanent governing structure prior to issuing certificates. (c) The board of directors shall establish fees reasonably related to the cost of providing services and carrying out its ongoing responsibilities and duties. Initial and renewal fees shall be established by the board of directors annually, (d) The meetings of the organization shall be subject to the rules of the Bagley-Keene Open Meetings Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Goverrunent Code). , 4601. (a) The organization shall issue a certificate under this chapter to an applicant who satisfies the requirements of this chapter. (b) (1) In order to obtain certification as a massage practitioner, an applicant shall submit a written application and provide the organization with satisfactory evidence that he or she meets all of the following requirements: (A) The applicant is 18 years of age or older, (B) The applicant has sllccessfully 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, 90 -5-Ch.384 (C) All fees required by the organization have been paid. (2) New certificates shall not be issued pursuant to this subdivision after December 31,201 S. 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, an applicant shall submit a written application and provide the organization with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant satisfies at least one of the following requirements: (A) He or she has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours. Of this 500 hours, a minimum of250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved or registered schools, or from continuing education providers approved by, or registered with, the organization or the Department of Consumer Affairs. After December 31, 2015, applicants may only satisfy the curricula in massage and related subjects from approved schools. (B) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the board. The successful completion of this examination may have been accomplished before the date the organization is authorized by this chapter to begin issuing certificates. (3) All fees required by the organization have been paid. (d) The organization shall issue a certificate to an applicant who meets the other qualifications of this chapter and holds a current and valid registration, certification, or license from any other state whose licensure requirements meet or exceed those defined within this chapter. The organization shall have discretion to give credit for comparable academic work completed by an applicant in a program outside of California. ( e) An applicant applying for a massage therapist or massage practitioner certificate shall file with the organization a written application provided by the organization, showing to the satisfaction of the organization that he or she meets all of the requirements of this chapter. (f) Any certification issued under this chapter shall be subject to renewal every two years in a manner prescribed by the organization, and shall expire unless renewed in that manner. The organization may provide for the late renewal of a license. (g) (1) The organization shall have the responsibility to detennine that the school or schools from which an applicant has obtained the education required by this chapter meet the requirements of this chapter. If the organization has any reason to question whether or not the applicant received the education that is required by this chapter from the school or schools that the applicant is claiming, the organization shall investigate the facts to 90 Ch.384 -6- determine that the applicant received the required education prior to issuing a certificate, (2) For purposes of paragraph (1) and any otheq)rovision ofthis chapter for which the organization is authorized to receive factual information as a condition of taking any action, the organization shall have the authority to conduct oral interviews of the applicant and others or to make any investigation deemed necessary to establish that the information received is accurate and satisfies any criteria established by this chapter, 4601.2, No certificates shall be issued by the organization pursuant to this chapter prior to September 1, 2009, 4601.3, (a) Prior to issuing a certificate to the applicant or designating a custodian of records, the organization shall require the applicant or the custodian of records candidate to submit fingerprint images in a form consistent with the requirements of this section, The organization shall submit the fingerprint images and related information to the Department of Justice for the purpose of obtaining information as to the existence and nature of a record of state and federal level convictions and of state and federal level arrests for which the Department of Justice establishes that the applicant or candidate was released on bailor on his or her own recognizance pending triaL Requests for federal level criminal offender record infonnation received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice, The Department of Justice shall review the information returned from the Federal Bureau ofInvestigation, 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 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 sllbmitted 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 investi gation process delineated in Section 4601,3, 4602. (a) The organization may discipline a certificate holder by any, or a combination, of the following methods: (1) Placing the certificate holder on probation. (2) Suspending the certificate and the rights conferred by this chapter on a certificate holder for a period not to exceed one year, (3) Revoking the certificate. 90 -7 Ch.384 (4) Suspending or staying the disciplinary order, or portions of it, with or without conditions. (5) Taking other action as the organization, as authorized by this chapter or its bylaws, deems proper. (b) The organization may issue an initial certificate on probation, with specific terms and conditions, to any applicant. (c) (1) Notwithstanding any other provision of law, if the organization receives notice that a certificate holder has been arrested and charges have been filed by the appropriate prosecuting agency against the certificate holder alleging a violation of subdivision (b) of Section 647 of the Penal Code or any other offense described in subdivision (h) of Section 4603, the organization shall take all of the following actions: (A) Immediately suspend, on an interim basis, the certificate of that certificate ho lder. (B) Notify the certificate holder within 10 days at the address last filed with the organization that the certificate has been suspended, and the reason for the suspension. (C) Notify any business within 10 days that the organization has in its records as employing the certificate holder that the certificate has been suspended. (2) Upon notice to the organization that the charges described in paragraph (1) have resulted in a conviction, the suspended certificate shall become subject to permanent revocation. The organization shall provide notice to the certificate holder within 10 days that it has evidence of a valid record of conviction and that the certificate will be revoked unless the certificate holder provides evidence within 15 days that the conviction is either invalid or that the information is otherwise erroneous. (3) Upon notice that the charges have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the certificate shall be immediately reinstated and the certificate holder and any business that received notice pursuant to subparagraph (C) of paragraph (1) shall be notified of the reinstatement within 10 days. 4602.5. (a) Upon the request of any law enforcement agency or any other representative of a local government agency with responsibility for regulating, or administering a local ordinance relating to, massage or massage businesses, the organization shall provide information concerning a certificate holder, including, but not limited to, the current status of the certificate, any history of disciplinary actions taken against the certificate holder, the home and work addresses of the certificate holder, and any other 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. 90 Ch.384 -8 4603. It is a violation of this chapter for a certificate holder to commit, and the organization may deny an application for a certificate or discipline a certificate holder for, any of the following: (a) Unprofessional conduct, including, but not limited to, denial of licensure, revocation, suspension, restriction, or any other disciplinary action against a certificate holder by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence of these actions. (b) Procuring a certificate by fraud, misrepresentation, or mistake. (c) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision or term of this chapter or any rule or bylaw adopted by the organization. (d) Conviction of any felony, or conviction of a misdemeanor that is substantially related to the qualifications or duties of a certificate holder, in which event the record of the conviction shall be conclusive evidence of the crime. (e) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to under this chapter for the issuance of a certificate. (f) Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a certificate. (g) Committing any fraudulent, dishonest, or corrupt act that 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 procedure that conforms to the requirements of subdivision (c) is fair and reasonable, but a court may also find other procedures to be fair and reasonable when the full circumstances of the certificate denial or certificate holder discipline are considered. (c) A procedure is fair and reasonable when the procedures in subdivision (c) of Section 4602 are followed, or if all of the following apply: (1) The provisions of the procedure have been set forth in the articles or bylaws, or copies of those provisions are sent mmually 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. (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 90 9 Ch.384 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. Ifthe action is successful, the court may order any relief, including reinstatement, that it finds equitable under the circumstances. (1) This section governs only the procedures for certificate denial or certificate holder discipline and not the substantive grounds therefor. A certificate denial or certificate holder discipline based upon substantive grounds that violates contractual or other rights of the member or is otherwise unlawful is not made valid by compliance with this section. (g) A certificate applicant or certificate holder who is denied or disciplined shall be liable for any charges incurred, services or benefits actually rendered, dues, assessments, or fees incurred before the certificate denial or certificate holder discipline or arising from contract or otherwise. 4603.5. It shall be the responsibility of any certificate holder to notify the organization of his or her home address, as well as the address of any business establishment where he or she regularly works as a massage therapist or massage practitioner, whether as an employee or as an independent contractor. A certificate holder shall notify the organization within 30 days of changing either his or her home address or the address of the business establishment where he or she regularly works as a massage therapist or massage practitioner. 4604. (a) Notwithstanding Section 4601, the organization may grant a massage practitioner certificate to any person who applies on or before January 1, 2012, with one of the following: (1) A current valid massage permit or license from a California city, county, or city and county and documentation evidencing that the person has completed at least a 100-hour course in massage at a state-approved or registered school, or out-of-state school recognized by the organization as providing comparable education, has been practicing for at least three years, and has provided at least 1,000 hours of massage to members of the public for compensation. (2) Documentation evidencing that the person has completed at least a 100-hour course in massage at a state-approved or registered school, or out-of-state school recognized by the organization as providing comparable education, has been practicing for at least three years, and has provided at least 1,750 hours of massage to members of the public for compensation. For purposes of this subdivision, evidence of practice shall include either of the following: (A) A W-2 form or employer's affidavit containing the dates of the applicant's employment 90 Ch.384 -10- (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 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 ofthis 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. 90 I -11 Ch.384 4605. It is an unfair business practice for any person to state or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that he or she is certified, registered, or licensed by a governmental agency as a massage therapist or massage practitioner. 4606. It is an unfair business practice for any person to hold oneself out or use the title of "certified massage therapist" or "certified massage practitioner" or any other term, such as "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 person acts as a massage practitioner or massage therapist in violation ofthe 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, pyrmit, or other authorization, except as provided in this section, to engage in that practice. (2) Notwithstanding any other provision of law, a city, county, or city and county shall not enact an ordinance that requires a license, permit, or other authorization to practice massage by an individual who is certified pursuant to this chapter and 'who is practicing consistent with the qualifications established by his or her certification. No provision of any ordinance enacted by a city, county, or city and county that is in effect before the effective date of this chapter, and that requires a license, permit, or other authorization to practice massage, may be enforced against an individual who is certified pursuant to this chapter. (3) Except as provided in subdivision (b), nothing in this section shall be interpreted to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, and reasonable health and safety requirements for massage establishments or businesses. Subdivision (b) shall not apply to any massage establishment or business that employs or uses persons to provide massage services who are not certified pursuant to this chapter. (b) (1) This subdivision shall apply only to massage establishments or businesses that are sole proprietorships, where the sole proprietor is certified pursuant to this chapter, and to massage establishments or businesses that employ or use only persons ce11ified pursuant to this chapter to provide massage services. For purposes ofthis subdivision, a sole proprietorship is 90 Ch.384 -12 a business where the owner is the only person employed by that business to provide massage services. (2) (A) Any massage establishment or business described in paragraph (1) shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified. (B) Nothing in this section shall preclude a city, county, or city and county from induding 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 licensing fee sufficient to cover the costs of the business licensing activities established by a local ordinance described in this section. (4) Nothing in this section shall prohibit a city, county, or city and county from adopting land use and zoning requirements applicable to massage establishments or businesses, provided that these requirements shall be no different than the requirements that are 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 is no staff available to assure security for clients and massage staff who are behind closed doors, or (B) require windows that provide a view into massage rooms that interfere with the privacy of clients of the massage business. (6) A city, county, or city and county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to, requirements for cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services, provided that nothing in this paragraph shall be interpreted to authorize adoption of local ordinances that impose additional qualifications, such as medical examinations, background checks, or other criteria, upon any person certified pursuant to this chapter. (7) Nothing in this section shall preclude a city, county, or city and county from doing any of the following: (A) Requiring an applicant for a business license to operate a massage business or establishment to fill out an application that requests the applicant to provide relevant information. (B) Making reasonable investigations into the information so provided. (C) Denying or restricting a business license ifthe 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, 90 13 Cb.384 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. (2) Requires an owner or operator to notify the city, county, or city and county of any intention to rename, change. management, or convey the business to another person. 4613. (a) Nothing in this chapter shall restrict or limit in any way the authority of a city, county, or city and county to adopt a local ordinance governing any person who is not certified pursuant to this chapter. (b) Nothing in this chapter is intended to affect the practice rights of any person licensed by the state to practice or perform any functions or services pursuant to that license. 4615. This chapter shall be subject to the review required by Division 1.2 (commencing with Section 473). 4620. This chapter shall remain in effect only until January 1,2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. o 90 I Attachment D Ii DIVISON 2 OF THE BUSINESS AND PROFESSIONS CODE. CHAPTER 10.5. SECTION 460Q GUIDE DEVELOPED BY THE CALIFORNIA MASSAGE THERAPY COUNCIL 4600 ....................................................................................... Meanings of Terms 4600.S ............................................... Massage Therapy Organization (CAMTC) 4601 ............................................................... .Issuance of Massage Certificates 4601.2.., ................................................................................. September 1, 2009 4601.3 .................................................................................. OOJ and FBI Reports 4602 .................................................... CAMTC Disciplinary & Denial Authority 4602.5 .. " ................................ CAMTC & Municipalities Information Exchange 4603 ................................................ Causes for Denials or Disciplinary Actions 4603.5 ............................................................... Change of Address Notification 4604 ......................................................... Grandfathering Prior to January 1, 2012 4605 .............................................................................. Unfair Business Practice 4606 .................................................................................. · .... CMT and CMPTitle 4607 ....................................................... " ................................... Court Restraint 4608 ..................................................................... Freedom to Provide Services 4612 (a) (1 & 2) ......................................... Exemption from Local Ordinances 4612 (a) (3} ..................................................................... Municipalities' Rights 4612 (b) (1) ............................................................ Establishment Exemptions 4612 (2) (A) .................................................. Proof of Certificates on Premises 4612 (2) (B) .................................................. Register with Local Municipality 4612 (3) ............................................................................ Business License Fee 4612 (4) ............................................................ Uniform Land Use and Zoning 4612 (S) ........................................................................ Uniform Building Code 4612 (6) ....................................... Reasonable Health & Safety Requirements 4612 (7) (A, B, & CJ ................... Municipal Business License & Investigation 4612 (7) (c) ...................................... Owner Responsible for Conduct of Staff 4612 (7) (d) (1) .................................... : ............ Municipality Right to Inspect 4612 (7) (d) (2) ................... Owner Notification to Municipality of Changes 4613 ..................................... Municipal Governance of Non-Certified Person 4615 ....................................................... 11 .............. Chapter Subj ect to Review 4620 ............................................................................ Sunset January 1, 2016 California Massage Therapy Council \ cg,mt~..@aJ.1.'llQ.:~:)Up~.us I (916) 669-5336\ www.camtc.org REGULATION OF MASSAGE BUSINESSES UNDER B&P SECTION 4600 (SB 731) Cities still have some authority over massage businesses even if all of the therapists are certified -it gives the cities information about the true owners, provides for business licensing, and gives the cities a means of confirming that the therapists are indeed certified .. On the zoning and land use side, it puts massage businesses on par with other businesses that provide personal and professional services. The key lies in Section 4612. Section 4612(a) provides that local authorities can't require a license or permit to practice massage by an individual already certified by the CAMTC. A city or county can still adopt a local ordinance governing zoning, business licensing, and reasonable health and safety requirements for massage establishments and massage businesses. But, Section 4612 provides some important rules of the road when a business has taken the time to hire only therapists certified by the CAMTC. The rules go both ways -the establishment must do some things and the local authorities must give on some things. So, here it is. If an establishment or business employs ONLY persons certified by the CAMTC, the following applies: • Section 4612 (b) 2 (A) The establishmentlbusiness must maintain on its premises, and available to local authorities, evidence demonstrating that all persons providing massage are certified by the CAMTC. • Section 4612 (b) 2 (B) The city or county can require the establishmentlbusiness to file copies or other evidence of certificates held by persons providing massage. • Section 4612(b)3 The city or county can charge an establishmentlbusiness a business licensing fee to cover the costs of business licensing activities described here. Section 4612(b)4 The city or county can have land use and zoning requirements applicable to massage establishments as long as the requirements are no different than requirements that are uniformly applicable to other professional or personal service businesses. .. Section 4612(b)5 Local building code or facility requirements applicable to establishments can't require additional restrooms, shower, or other facilities that aren't uniformly applicable to other professional or personal service businesses -nor can the requirements be such that there are unlocked doors when no staff is available to assure security for clients and employees or require windows with a view into massage rooms. Page 10f2 Section 4612(b)6 The city or county can adopt reasonable health and safety requirements, including requirements for cleanliness of rooms, towels and linens, and reasonable attire and personal hygiene requirements for therapists (but can't interpret this to authorize medical exams, background checks or other criteria on CAMTC .. certified therapists) .. • Section 4612(b) 7 (A-C) The city or county CAN still require an application for a business license to operate a massage business or massage establishment and can require completion of an application requesting relevant information.. The city or county can make reasonable investigation into the information so provided and deny or restrict a business license if the applicant provided materially false information. • Section 4612 (c) provides that a massage establishment owner or operator is responsible for the conduct of all employees or independent contractors on its premises. A local ordinance can authorize suspension, revocation or other restriction of a business license issued to a massage business/establishment if a violation of the state law or local ordinance occurs on the premises. San Rafael is requiring a "certificate of exemption" for massage businesses in which all therapists are CAMTC certified. If illicit activities occur on the premises, the· owner, who is held responsible, can lose the certificate. Once the certificate is revoked, the business is subject to all establishment regulations required of non-exempt massage businesses. This makes it easier to close the business than red light abatement. Cotati is proposing a "zoning waiver" which will provide the same type of protection for the city. Pacifica requires all CAMTC certified massage therapists to register with the city .. •. CMT's and CMP' s are required to notify the CAMTC within 30 days of any change of work or home status .. Once the information is received, notice goes out to the registered city contact. Page 2of2 ., . .~ CALIFORN IA ~~ tv-\r\.sS.I\G!: THERAPY COUNCIL MEETS STANDARDS CURRENTLY ESTABLISHED BY CITIES AND COUNTIES AND ALSO BENEFITS CITIES AND COUNTIES: I. Meets Standards Established by Cities and Counties: • • • • • • • • Applicants for state certification undergo criminal background checks including fingerprints. (Section 4601 .3(a». CAMTC is mandated to request subsequent arrest notification service from the Department of Justice for all applicants for licensure for whom fmgerprints are submitted. (Section 4601.3(d». CAMTC is authorized to investigate the education of applicants, including their certificates of completion (transcripts), and to reject those it determines to be fraudulent. CAMTC may also request additional information regarding an applicant's education if a transcript from a particular school is not deemed sufficient proof of adequate education.. (Section 4601(g)(1) and (2». CAMTC is authorized to discipline certificate holders through probation, suspension, revocation, or other means it deems proper. (Section 4601(a». CAMTC is required to permanently revoke the certificate of anyone violating subdivision (b) of Section 647 of the Penal Code of any offense described in subdivision (h) of Section 4603. The law requires the CAMTC to immediately suspend the certificate, notify the certificate holder and any business employing the certificate holder of such suspension. Upon notice that the charges have resulted in a conviction, the CAMTC has authority to revoke the certificate. (Section 4602(c». CAMTC is authorized to deny or revoke certificates for 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. (Section 4603(a». CAMTC may also deny or revoke a certificate for the following: procuring a certificate by fraud, misrepresentation, or mistake; 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 the law or any rule or bylaw adopted by the organization; 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; impersonating an applicant or acting as a proxy for an applicant in any examination referred to under the law for the issuance of a certificate; impersonating a certified pmctitioner or therapist, or permitting or allowing an uncertified person to use a certificate; committing any fraudulent, dishonest, or COlTIlpt act that is substantially related to the qualifications or duties of a certificate holder; committing any act punishable as a sexually related crime. (Section 4603(a)-(h)). It is an unfair business practice to state that one is certified, registered or licensed by a governmental agency (the CAMTC is a private not-for-profit with legislative oversight) as a massage therapist or practitioner. (Section 4605). 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 as "licensed," "registered," or "CMT," that implies or suggests that the person is certified as a massage therapist or practitioner without meeting the requirements of the law. (Section 4606). Page 1 of2 II. Allows Cities and Counties to Know Who is Practicing in Their Jurisdiction: • • • Section 4600 gives CAMTC broad authority to share information with local authorities. The CAMTC is authorized to provide to local authorities information concerning a certificate holder, including but not limited to, the current status of the certificate holder, address of the certificate holder (home and work), history of disciplinary actions against the certificate holder (including revocation), and any other information necessary to verify facts relevant to administering a local ordinance (Section 4602.5(a». CAMTC must also accept information provided by local authorities, and has a responsibility to review information received and take action warranted by that information. (Section 4602.5(b». CAMTC is required to request subsequent arrest notification service from the Department of Justice for all applicants for licensure. (Section 4601.3(d». CAMTC can share this information with local authorities, as stated above. In. Important Authority Retained by Cities and Counties under SECTION 4600 • Cities and counties retain authority over any person not certified pursuant to Section 460'0. (Section 4613(a». • • • • • • • • Section 4600 specifies that the superior court in and for the county in which any person acts as a massage practitioner or massage therapist in violation ofthe provisions of the law, 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) ofTitle 7 of Part 2 of the Code of Civil Procedure. (Section 4607). A city or county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to: (Section 4612(b)(6» . .( Cleanliness of rooms .( Cleanliness of towels and linens ./ Reasonable attire and personal hygiene requirements A city or cOlmty may require an applicant for a business license to operate a massage establishment to fill out an application providing relevant infonnation and make reasonable investigation into the information provided. (Section 4612(b )(7)). Local authorities can deny or restrict a business license if the applicant has provided materially false information (Section 4612(b )(7). The owner/operator of a massage establishment is responsible for the conduct of all employees or independent contractors working on the premises. Local authorities can still suspend, revoke or otherwise restrict the license issued to a massage establishment for violations of Section 4600 or local ordinances. (Section 4612(c». Local authorities may have and enforce an ordinance that is applicable to massage businesses or establishments that provides duly authorized officials of the city or county the right to conduct reasonable inspections during regular business hours, to ensure compliance with the law, the local ordinance, or other applicable fire and health and safety requirements. Such ordinances may require an owner or operator to notify the city or county of any intention to rename, change management, or convey the business to another person. (Section 4612( d». Local authorities may require a massage establishment to maintain on its premises for review evidence demonstrating that all persons providing massage services are certified. A local authority may require a business to file copies or provide other evidence of the certificates held by persons providing massage services at the business. Section 4612(b)(2)(A)-(B). Cities and counties may adopt land use and zoning requirements applicable to massage establishments provided that the requirements are no different than those uniformly applied to other professional or personal services businesses. (Section 4612(b)«4». Page 2 of2 CAMTC Review Process Professional Standards Division Application Sent to P5D for Review P5D Reviews and Makes a Factual Finding Evidence Standard is No CALIFORNIA. MASSAGE T.HERAPY COUNCIL www.camtc.org More Probable rhan Not >-----------------., Yes Memo to Coun sel Drafted by P5D Proposed Denial Letmr Sent by Counsel to Applicant Hearing Requested (0131 or Written) P5D Holds Denial Hearing Proposed Denial is Upheld Final Letter of Denial is 5ent by Counsel Applicant May Reapply After One Year No No No Denial Automatically Effective Notify 5taff of Denial Return to Staff for Processing California Massage Therapy Council lOne Ca-eitol Mall, Suite 320 I Sacramento, CA 95814 I 916.669.53361 www.camtc.org tet < •• \ RE~{"'fll 11 n c ~ A r' t\"'f",' ]::(""')R CC It-A 'I' CE'Rl-IF~ CA'l"ION ~~ f\.LfvLtJ J 1 ._, , ;, .... JVl , .. ,11 • 1 _,_ .,' Starting January 31,2011, applicants seeking a Conditional CMP (CCMP) certificate with 100- 249 hours of massage education completed after March 15, 2010, must submit a transcript from an approved school whose 100 .. 249 hour entry-level program was specifically approved by BPPE or BPPVE. Please note that no applications for CCMP certification will be accepted after December 31, 2011. Starting January 1, 2012, all applicants will need a minimum of 250 hours of massage education at an approved school to be considered for CAMTC certification. In order to maintain your Conditional Certification as a Massage Practitioner (CCMP), you are required to provide evidence of a minimum of 30 hours of continuing massage education each year, until your total massage education totals 250 hours. Once you have completed a minimum of 250 hours of massage education, you must apply for an upgrade to CMP. You may apply for an upgrade at the time you reach 250 hours or at the time of your next renewal. If you are unsure where to obtain your continuing education, visit the National Certification Board for Therapeutic Massage & Bodywork (www.ncbtmb.org/ceproviders.php) or Bureau for Private Postsecondary Education (www.bppe.ca.gov) for a list of providers/schools. Please note: not all transcripts will serve as sole proof of education, so please check our website regularly for a list of schools where additional proof of education, beyond a transcript, will be requested. !. ~ I Attachment E , . .. ,. BILL NUMBER: AB619 BILL TEXT CHAPTER 162 CHAPTERED FILED WITH SECRETARY OF STATE AUGUST 3, 2011 APPROVED BY GOVERNOR AUGUST 3, 2011 PASSED THE SENATE JULY 11, 2011 PASSED THE ASSEMBLY JULY 14, 2011 AMENDED IN SENATE JULY 1, 2011 AMENDED IN SENATE JUNE 7, 2011 AMENDED IN SENATE JUNE 2, 2011 AMENDED IN ASSEMBLY APRIL 25, 2011 AMENDED IN ASSEMBLY APRIL 13, 2011 AMENDED IN ASSEMBLY MARCH 31, 2011 INTRODUCED BY Assembly Member Halderman FEBRUARY 16, 2011 An act to amend Sections 4600, 4600.5, 4601, 4601.3, 4601.4, 4602, 4602.5, 4603, 4603.1, 4603.5, 4604, 4612, and 4615 of, and to add Sections 4603.7 and 4616 to, the Business and Professions Code, relating to massage therapy. LEGISLATIVE COUNSEL'S DIGEST AB 619, Halderman. Massage therapy. (1) Existing law, until January 1, 2015, provides for the voluntary certification of massage practitioners and massage therapists by a nonprofit Massage Therapy Organization, as defined. Existing law requires the initial board of directors to, among other things, establish the organization. This bill would specify that the Massage Therapy Organization is to be known as the California Massage Therapy Council, as defined. (2) Existing law requires applicants for initial certification as massage practitioners and massage therapists to pay a specified fee and meet certain educational requirements. This bill would require a certificate holder to include certain identifying information in any advertising, and to display his or her certificate at his or her place of business. (3) Existing law prohibits the holder of a certificate or a certificate applicant from being disciplined or denied a certificate unless certain procedural requirements are met. Existing law requires actiqns challenging a denial or discipline to be commenced within a year after the date of the denial or discipline. Under existing law, applicants and certificate holders are liable for charges incurred before the certificate denial or certificate holder discipline, or other specified charges. This bill would delete that liability requirement and would require the council to be sued only in the county of its principal office. (4) Existing law prohibits a city, county, or city and county from enacting an ordinance, or enforcing an existing ordinance, that requires a license, permit, or other auth<;>rization to practice massage by an individual who is certified pursuant to existing law, as specified. This bill would instead prohibit those local governments from Page 1 of12 h«p:llwww.leginfo.ca.gov/pubI11-12Ibill/asmlab_0601-0650/ab_619 _bill_20110803_cha... 10/28/2011 AB 619 Assembly Bill-CHAPTERED . enacting an ordinance or enforcing an existing ordinance that requires a license, permit, or other authorization to provide massage for compensation against an individual certified under existing state law or against a massage business or massage establishment that employs or uses only persons who are so certified. Existing law authorizes a city, county, or city and county to charge a massage business or massage establishment a business licensing fee sufficient to cover the costs of the licensing activities, as specified. This bill would require that the fee be no different than the fee that is uniformly applied to all other individuals and businesses providing professional services, as defined and specified. Existing law authorizes a city, county, or city and county to require a background check of any person certified to practice massage. This bill would authorize such a background check of an owner of 5% or more of a massage business or massage establishment, as specified. The bill would make various conforming changes, including with regard to the failure of an owner or operator of a massage business or establishment to comply with the provisions that apply to the practice of massage therapy. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 4600"of the Business and Professions Code is amended to read: 4600. As used in this chapter, the following terms shall have the following meanings: (a) "Approved school" or "approved massage school" means a school approved by the council that meets minimum standards for training and curriculum in massage and related subjects and that meets any of the following requirements: (1) Is approved by the Bureau for Private Postsecondary Education. (2) Is approved by the Department of Consumer Affairs. (3) Is 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 of the criteria in subparagraph (B) that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, that has been in continuous operation since April 15, 1997, and that is not managed by any entity for profit. (4) Is a college or university of the state higher education system, as defined in Section 100850 of the Education Code. (5) Is a school of equal or greater training that is recognized 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. Page 2ofl2 http://www.leginfo.ca.gov/pub/11-12/bilVasm/ab_0601-0650/ab_ 619 _ bill_ 20110803 _cha... 10128/2011 AB 619 Assembly Bill -CHAPTERED (cl "Massage therapist," "bodyworker," "bodywork therapist," or "massage and bodywork therapist" means a person who is certified by the California Massage Therapy Council under subdivision (cl of Section 4601 and who administers massage for compensation. (d) "Massage practitioner," "bodywork practitioner," or "massage and bodywork practitioner" means a person who is certified by the California Massage Therapy Council under subdivision (b) of Section 4601 and who administers massage for compensation. (e) "Council" means the California Massage Therapy Council 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 council may commence activities as authorized by this section once it has submitted a request to the Internal Revenue Service seeking this exemption. Whenever the term "organization" is used in this chapter, it shall mean the council, except where the context indicates otherwise. (f) "Registered school" means a school approved by the council that meets minimum standards for training and curriculum in massage and related subjects and that either is approved by the Bureau for Private Postsecondary Education or the Department of Consumer Affairs, or is an 'institution accredited by the senior commission or the junior commission of the Western Association of Schools and Colleges as defined in paragraph (3) of subdivision (a), is a college or university of the state higher education system as defined in Section 100850 of the Education Code, or is 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. SEC. 2. Section 4600.5 of the Business and Professions Code is amended to read: 4600.5. (a) The California Massage Therapy Council, as defined in subdivision (e) of Section 4600, shall be created and shall have the responsibilities and duties set forth in this chapter. The council 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. (bl (1) The council 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 council. 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 persons: (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. (ClOne 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. Page 3 of12 http://www.leginfo.ca.gov/pubI11-12lbilVasmiab _060 1-0650/ab _ 619 _ bill_ 20110803_ cha... 10/28/2011 I 1 i [I Ii AB 619 Assembly Bill -CHAPTERED (E) One member appointed by the Office of the Chancellor of the California Community Colleges, 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 council's bylaws shall establish a process for appointing other professional directors as determined by the board. (2) The initial board of directors shall establish the council, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the council. 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. (dl The meetings of the council shall be subject to the rules of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). SEC. 3. Section 4601 of the Business and Professions Code is amended to read: 4601. (a) The council shall issue a certificate under this chapter to an applicant who satisfies the requirements of this chapter. (b) (1) In order to obtain certification as a massage practitioner, an applicant shall submit a written application and provide the council 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 council have been paid. (2) New certificates shall not be issued pursuant to this subdivision after December 31, 2015. Certificates issued pursuant to this section or subdivision (a) or (c) of Section 4604 on or before December 31, 2015, shall, after December 31, 201 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, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant satisfies at least one of the following requirements: (A) He or she has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours. Of this 500 hours, a minimum of 250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved or registered schools, or from continuing education providers approved by, or registered with, the councilor the Department of Consumer Page4of12 http://www.leginfo.ca.gov/pub/11-12Ibilllasmlab _0601-0650/ab_619 _bilt20110803 _cha... 10/28/201 ~ AB 619 Assembly Bill -CHAPTERED Affairs. After December 31, 2015, applicants may only satisfy the curricula in massage and related subjects from approved schools. (B) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the board. The successful completion of this examination may have been accomplished before the date the council is authorized by this chapter to begin issuing certificates. (3) All fees required by the council have been paid. (d) The council 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 council shall have discretion to give credit for comparable academic work completed by an applicant in a program outside of California. ) An applicant applying for a massage therapist certificate shall file with the council a written application provided by the council, showing to the satisfaction of the council that he or she meets all of the requirements of this chapter. (f) Any certification issued under this chapter shall be subject to renewal every two years in a manner prescribed by the council, and shall expire unless renewed in that manner. The council may provide for the late renewal of a license. (g) (1) The council shall have the responsibility to determine that the school or schools from which an applicant has obtained the education required by this chapter meet the requirements of this chapter. If the council 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 council 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 council is authorized to receive factual information as a condition of taking any action, the council 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. SEC. 4. Section 4601.3 of the Business and Professions Code is amended to read: 4601.3. (a) Prior to issuing a certificate to the applicant or designating a custodian of records, the council 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 council 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 bailor on his or her own recognizance pending trial. Requests for federal level criminal offender record information received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice. The Department of Justice shall review the information returned from the Federal Bureau of Investigation, and shall compile and disseminate a fitness determination regarding the applicant or candidate to the council. (b) The Department of Justice shall provide information to the council pursuant to subdivision (p) of Section 11105 of the Penal Page 5 of12 http://www.leginfo.ca.gov/pub/11-121hill/asm/ab_0601-0650/ab_619 _bill_20110803 _cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED Code. (c) The Department of Justice and the council shall charge a fee sufficient to cover the cost of processing the request for state and federal level criminal offender record information. (d) The council 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. SEC. 5. Section 4601.4 of the Business and Professions Code is amended to read: 4601.4. Council directors, employees, or volunteer individuals may undergo the background investigation process delineated in Section 4601.3. SEC. 6. Section 4602 of the Business and Professions Code is amended to read: 4602. (a) The council may discipline a certificate holder by any, or a combination, of the following methods: (1) Placing the certificate holder on probation. (2) Suspending the certificate and the rights conferred by this chapter on a certificate holder for a period not to exceed one year. (3) Revoking the certificate. (4) Suspending or staying the disciplinary order, or portions of it, with or without conditions. (5) Taking other action as the council, as authorized by this chapter or its bylaws, deems proper. (b) The council may issue an initial certificate on probation, with specific terms and conditions, to any applicant. (c) (1) Notwithstanding any other provision of law, if the council 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 council shall take all of the following actions: (A) Immediately suspend, on an interim basis, the certificate of that certificate holder. (B) Notify the certificate holder within 10 days at the address last filed with the council that the certificate has been suspended, and the reason for the suspension. (C) Notify any business within 10 days that the council has in its records as employing the certificate holder that the certificate has been suspended. (2) Upon notice to the council that the charges described in paragraph (1) have resulted in a conviction, the suspended certificate shall become subject to permanent revocation. The council shall provide notice to the certificate holder within 10 days that it has evidence of a valid record of conviction and that the certificate will be revoked unless the certificate holder provides evidence within 15 days that the conviction is either invalid or that the information is otherwise erroneous. (3) Upon notice that the charges have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the certificate shall be immediately reinstated and the certificate holder and any business that received notice pursuant to subparagraph (C) of paragraph (1) shall be notified of the reinstatement within 10 days. SEC. 7. Section 4602.5 of the Business and Professions Code is amended to read: Page 6 of 12 http://www.leginfo.ca.gov/pubI11-12lbilUasmlab_0601-0650/ab_619_ bill_ 20110803_ cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED 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 council shall provide information concerning a certificate holder, including, but not limited to, the current status of the certificate, any history of disciplinary actions taken against the certificate holder, the home and work addresses of the certificate holder, and any other information in the council's possession that is necessary to verify facts relevant to administering the local ordinance. (b) The council 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 council shall have the responsibility to review any information received and to take any actions authorized by this chapter that are warranted by that information. SEC. 8. Section 4603 of the Business and Professions Code is amended to read: 4603. It is a violation of this chapter for a certificate holder to commit, and the council 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 council. (d) Conviction of any felony, or conviction of a misdemeanor that is substantially related to the qualifications or duties of a certificate holder, in which event the record of the conviction shall be conclusive evidence of the crime. (e) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to under this chapter for the issuance of a certificate. (f) Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a certificate. (g) Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder. (h) Committing any act punishable as a sexually related crime. SEC. 9. Section 4603.1 of the Business and Professions Code is amended to read: 4603.1. (a) No certificate holder or certificate applicant may be disciplined or denied a certificate pursuant to Section 4603 except according to procedures satisfying the requirements of this section. A denial or discipline not in accord with this section or subdivision (c) of Section 4602 shall be void and without effect. (b) Any certificate applicant denial or certificate holder discipline shall be done in good faith and in a fair and reasonable manner. Any procedure that conforms to the requirements of subdivision (c) is fair and reasonable, but a court may also find other procedures to be fair and reasonable when the full Page 7of12 http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0601-0650/ab_619 _bill_20110803 _cha... 10/28/2011 AB 619 Assembly Bill-CHAPTERED 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. (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 council'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) The council shall be sued only in the county of its principal office. SEC. 10. Section 4603.5 of the Business and Professions Code is amended to read: 4603.5. It shall be the responsibility of any certificate holder to notify the council of his or her home address, as well as the address of any business establishment where he or she regularly works as a massage therapist or massage practitioner, whether as an employee or as an independent contractor. A certificate holder shall notify the council within 30 days of changing either his or her home address or the address of the business establishment where he or she regularly works as a massage therapist or massage practitioner. SEC. 11. Section 4603.7 is added to the Business and Professions Code, to read: 4603.7. A certificate holder shall include the name under which he or she is certified and his or her certificate number in any and all advertising and shall display his or her certificate at his or her place of business. SEC. 12. Section 4604 of the Business and Professions Code is amended to read: 4604. (a) Notwithstanding Section 4601, the council 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 an Page 8of12 http://www.leginfo.ca.gov/pub/II-12Ibilllasmlab_0601-0650/ab_ 619 _bill_2011 0803_ cha... 10/2812011 AB 619 Assembly Bill-CHAPTERED approved or registered school, or out-of-state school recognized by the council 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 an approved or registered school, or out-of-state school recognized by the council 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 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 council 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 council 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 council shall issue a certificate to the person that is not conditional. (4) A conditional certificate issued to any person pursuant to this subdivision shall immediately be nullified, without need for further action by the council, if the time period specified in paragraph (2) expires without proof of completion of the requirements having been filed with the council. (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 councilor the Department of Consumer Affairs. (D) A provider that establishes to the satisfaction of the council Page 9 of 12 http://www.leginfo.ca.gov/pubI11-12Ibilllasmlab_0601-0650/ab_619 _ bill_ 20110803_ cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED that its course or courses are appropriate educational programs for this purpose. ( d) exercising respect to SEC. 13. Nothing in this section shall preclude the council from any power or authority conferred by this chapter with a conditional certificate holder. Section 4612 of the Business and Professions Code is amended to read: 4612. (a) (1) The holder of a certificate issued pursuant to this chapter shall have the right to practice massage, consistent with this chapter and the qualifications established by his or her certification, in any city, county, or city and county in this state and shall not be required to obtain any other license, permit, or other authorization, except as provided in this section, to engage in that practice. (2) Notwithstanding any other provision of law, a city, county, or city and county shall not enact an ordinance that requires a license, permit, or other authorization to provide massage for compensation by an individual who is certified pursuant to this chapter and who is practicing consistent with the qualifications established by his or her certification, or by a massage business or massage establishment that employs or uses only persons who are certified pursuant to this chapter to provide massage for compensation. 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 provide massage for compensation, may be enforced against an individual who is certified pursuant to this chapter or against a massage business or massage establishment that employs or uses only persons who are certified pursuant to this chapter to provide massage for compensation. (3) Except as provided in subdivision (b), nothing in this section shall be interpreted to prevent a city, county, or city and county from adopting or enforcing any local ordinance that provides for 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 establishments or businesses that employ or use only persons certified pursuant to this chapter to provide massage services. For purposes of this subdivision, a sole proprietorship is a business where the owner is the only person employed by that business to provide massage services. (2) (A) Any massage establishment or business described in paragraph (1) shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified. (B) Nothing in this section shall preclude a city, county, or city and county from including in a local ordinance a provision that requires a business described in paragraph (1) to file copies or provide other evidence of the certificates held by the 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 licensing fee, provided that the fee shall be no different than the fee that is uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Page 10 of 12 http://www.leginfo.ca.gov/pubI11-12lhill/asm/ab_060l-0650/ab_619 _bile 20110803 _cha... 10/28/2011 AB 619 Assembly Bill -CHAPTERED Code. (4) Nothing in this section shall prohibit a city, county, or city and county from enacting ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits, or zoning requirements applicable to an individual certified pursuant to this chapter or to a massage establishment or business that uses only individuals who are certified pursuant to this chapter to provide massage for compensation, provided that, unless otherwise exempted by this chapter, these ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits, and zoning requirements shall be no different than the requirements that are uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code. No provision of any ordinance, regulation, rule, requirement, restriction, land use regulation, moratoria, conditional use permit, or zoning requirement enacted by a city, county, or city and county that is in effect before the effective date of this chapter, and that is inconsistent with this paragraph, may be enforced against an individual who is certified pursuant to this chapter or against a massage business or massage establishment that uses only individuals who are certified pursuant to this chapter to provide massage for compensation. (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 is no staff available to ensure security for clients and massage staff who are behind closed doors, or (B) require windows that provide a view into massage rooms that interfere with the privacy of clients of the massage business. (6) A city, county, or city and county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to, requirements for cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services, provided that nothing in this paragraph shall be interpreted to authorize adoption of local ordinances that impose additional qualifications, such as medical examinations, background checks, or other criteria, upon any person certified pursuant to this chapter. (7) Nothing in this section shall preclude a city, county, or city and county from doing any of the following: (A) Requiring an applicant for a business license to operate a massage business or establishment to fill out an application that requests the applicant to provide relevant information. (B) Making reasonable investigations into the information so provided. (C) Denying or restricting a business license if the applicant has provided materially false information. (c) An owner or operator of a massage business or establishment subject to subdivision (b) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. Failure to comply with this chapter may result in revocation of the owner's or operator's certificate in accordance with Section 4603. 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, Page 11 of 12 http://www.leginfo.ca.gov/pubI11-12lhill/asm/ab_0601-0650/ab_619 _ bill_ 20110803 _ cha... 10128/2011 AB 619 Assembly Bill-CHAPTERED occur on the business premises. (d) Nothing in this section shall preclude a city, county, or 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 requirements. (2) Requires an owner or operator to noti the city, county, or city and county of any intention to rename, change management, or convey the business to another person. (e) Nothing in this chapter shall be construed to preclude a city, county, or city and county from requiring a background check of an owner or operator of a massage establishment who owns 5 percent or more of a massage business or massage establishment and who is not certified pursuant to this chapter. The background check may consist of an application that requires the applicant to state information, including, but not limited to, the applicant's business, occupation, and employment history for the five years preceding the date of application, the inclusive dates of same, and the name and address of any massage business or other like establishment owned or operated by any person who is subject to the background check requirement of this subdivision. SEC. 14. Section 4615 of the Business and Professions Code is amended to read: 4615. This chapter shall be subject to the review required by Article 7.5 (commencing with Section 9147.7) of Chapter 1.5 of Part 1 of Division 2 of the Government Code. SEC. 15. Section 4616 is added to the Business and Professions Code, to read: 4616. This chapter shall be liberally construed to effectuate its purposes. If any provision of this chapter or the application thereof to any person or circumstance is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. Page 12 of12 http://www.leginfo.ca.gov/pub/II-12Ibilllasmlab_0601-0650/ab_619 _ bill_20 11 0803_ cha... 10/28/2011 ***Proposed Massage Municipal Code*** 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 the practitioners are all CAMTC certified. 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 or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. (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 as the principal functions. 1 (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) "Permit" means the permit to engage in the activities of a massage technician or a massage technician trainee as required by this chapter. (8) "Person" means any individual, firm, association, partnership, corporation, joint venture or combination of individuals. (9) “California Massage Therapy Council” (CAMTC) means the governing non- profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. (10) “Accessory Technician Permit” A technician 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. 4.54.030 Massage establishment permit required. (a) Except as otherwise provided, it is unlawful for any person to engage in, conduct or carry on, 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. 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 of this code or state law, as applicable; unless grounds for denial of 2 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. 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. 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 3 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 addition 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 of the stock of the corporation. If the 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; 8. The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the 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. 4.54.060 Massage technician permit required. 4 (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 of this 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. (b) A permit issued by the chief of police is not required for any massage technician and massage establishments if the owners and 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. 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 5 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 the 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 of time. 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 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. 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 reasons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. The chief 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 applicant; 6 (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. 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 proof that 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 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 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 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. 7 Any massage technician trainee who, during the life of the trainee permit, completes the instruction required of a massage technician, shall be issued a massage technician permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. 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. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those certified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (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. (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 in wall-mounted dispensers. (8) Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patron shall be available for the protection of the valuables of the patrons. 8 (9) Every portion of a massage establishment, including appliances, apparatus and personnel, shall be kept clean and operated in a sanitary condition. (10) 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 into a sanitary receptacle. (11) 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 and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use. (12) 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. (13) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof material. (14) (A) To protect patrons from potential health and sanitary hazards, all employees, massage technicians and massage technician trainees shall be clean 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, (15) through (18), shall not apply to CAMTC certified establishments: (15) 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. (16) (A) Massage establishments shall close and remain closed from eleven p.m. (11 p.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 for the exemption. The chief of police, 9 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 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the 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). (17) Every massage establishment and sole proprietor massage establishment shall keep written client records of the following: the date and hour of each service; the name, contact information and sex of each patron; the service provided, and the technician administering the service. This log may be inspected only pursuant to a court order. (Ord. 2833 § 1 (part), 1974) (18) 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. 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 time 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. 4.54.130 Business name. 10 No person permitted to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the permit. 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. 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 a result 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 each such sale or transfer. 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. 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; 11 12 (4)Barbers and beauticians who are duly permitted under the laws of the state of California. 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. 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. 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. 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. o 1=! ~ (l) ] ~ ~ LOCAL SURROUNDING CITIES MASSAGE TECHNICIAN RATES SAN MATEO MILLBRAE NEW MASSAGE TECHNICIAN PERMIT $323.00 $697.00 MASSAGE TECHNICIAN RENEWAL .. $188~00 $209.0Q. BELMONT SUNNYVALE MOUNTAIN VIEW PALO ALTO $500.00 $223.00 $409.00 $157.00 $150.00 $223.00 _. $203.00 _ $81.00 NEW MASSAGE TECHNICIAN PERMIT AVERAGE: $385 MASSAGE TECHNICIAN RENEWAL AVERAGE: $176 _ NEW MASSAGE TECHNICIAN PERMIT _MASSAGE TECHNICIAN RENEWAL ~ <v ~ ~O ~~ ~~ <Q<VV ~~ ~~ ~o ~ o «~ c:>"::> ~ 0"::> ~ LOCAL SURROUNDING CITIES MASSAGE ESTABLISHMENT RATES NEW ESTABLISHMENTS ESTABLISHMENT RENEWALS $2,000.00 $1,800.00 $1,600.00 $1,400.00 $1,200.00 $1,000.00 $800.00 $600.00 $400.00 $200.00 $0.00 ~<v0 ~ ~~ SJ ~ ~v <::>~ SAN MATEO $427.00 L... $142.00 t-<v ~O ~~ MILLBRAE $697.00 $209.00 ~ ~~ BELMONT SUNNYVALE MOUNTAIN VIEW PALO ALTO $500.00 $841.00 $811.00 $1,790.00 $150.00 $777.00 $409.00 $810.00 NEW MASSAGE ESTABLISHMENT AVERAGE: $844 MASSAGE ESTABLISHMENT RENEWAL AVERAGE : $416 ,,0 ~ .NEW ESTABLISHMENTS • ESTABLISHMENT RENEWALS <Qo/ ~~ <::>'5 ~~ ~ 0'5 ':YO <l.~ ~ ~~_'"._,~ __ , ............... ::.:: ~. _...;::.~~;.;;=-"o...; .. ~==_~_=~· =.='...:..:..::....---.:;-""""'..o...t..,~~-_~==, ______ _ Minor, Beth From: Sent: To: Subject: Dear City Council T Lance Welsh Oance@lwelsh.coml Monday. February 06,20127:27 PM Council, City Massage Ordinance Thank you for taking the time to read what must be volumes of email{ on this and other issues. Please know that I'm another Palo Alto resident who is surprised to. hear that we need reformed massage ordinances. As a resident for over 20 years, I have seen no evidence that there is a problem here that needs fixing. EspeCially when the cost of even a well-intentioned proactive law would put a burden on some establishments like Happy Feet. I live In Baron Park and visit when work becomes stressful. It's wonderful to live nearby, and nothing against Watercourse Way or other high-end spas{ but even if I could afford it, I'm glad to have the choice to not spend that much money. I've had nothing but good healthy clean service from Happy Feet and am proud to live In a community that hasn't gentrified so much as to wipe out these more affordable shops and services. Please reconsider whether we need to make new laws for problems that don't exist, or at least consider making them with minimal harm to good businesses a.nd our community. Perhaps I'm wrong -if there are problems and compelling reasons for new laws, please enlighten me. Sincerely, Lance Welsh 3885 Magnolia Drive Palo Alto, CA ~4306 1 Teixeira, Barbara From: Sent: To: Minor, Beth on behalf of Council, City Wednesday, February 08, 2012 7:50 AM Teixeira, Barbara Page I of 1 Subject: FW: Massage Ordinance Revision (PD) Agenda Item, February 14, 2012 Policy & Services meeting Attachments: ARCB RAA Brochure 2012 1.6. 12.pdf -1 .. pdf; ARCB Palo Alto. pdf; Califomia Statutes. pdf; Citrus Heights Exemption.pdf; RAC 2011 Brochure.pdf; Reflexology vs Massage (4).pdf; Palo Alto Llr· Whitaker-Harvey. pdf; NIH NCCAM.doc.pdf Hi Barb, This should also go with the massage ordinance report. B- From: Susan Mix [mailto:MlxReflexology@comcast.netj Sent: Tuesday, February 07,20126:05 PM To: Council, aty Subject: Massage Ordinance Revision (PD) Agenda Item, February 14,2012 Policy & Services meeting February 7, 2012 Palo Alto City Council 250 Hamilton Avenue Palo Alto CA 94301 Re: Massage Ordinance Revision (PD) Agenda Item, February 14, 2012 Policy & Services meeting As a representative of the Reflexology Association of California (RAe), I request time for myself and a few other professional reflexologlsts to speak against the issue of amending the Massage Ordinance to include reflexology under the massage regulations. A brief summary of information regarding professional reflexology and legislation pertaining to its practice is attached to this e-mail. Some of the attached documents reference other documents that we will bring to the meeting. Sincerely, Susan l. Mix RAC Vice President 408-829-6249 2/8/2012 Reflexology is: Reflexology is a non-invasive comple­ mentlIY practice involving the use of alternating pressure applied to the re­ flexes withln the reflex maps of the body located on the fcet, hands and outcrcars. A Typical Reflexology Session: o Is performed on the fect, hands and outer ears. • Only footwear is removed o Average session length is 60 minutes. The Legitimate Reflexology Professional is: o A graduate of a reflexology pro­ gmm consisting of at least 200 hours of Imining. o Certified through a national certification board. o Certified through an accredited vocational school. Posted Credentials May Include: o Diploma of Reflexology edw;ation. o Certificate ofCcrtification. o MemheIShip in RAA and the state reflexology ao;;soc1atiOD. o Continuing Education Certificates. o Code of Ethlcs and Business S tan­ dards. o Whom to contact with a grievance. History and Science: The art and science of Reflexology is hased on the work of three 20th century medical doetors and a physio­ therapist • Dr. William Fitzgerald (USA) • Dr. Joe Shelby Riley (USA) o Dr. Panl Nogier (France) o Eunice Ingham (USA) Reflexology is: o SUpPOrted hy over 300 global research stodies. • Funded by two research gran1s (of several million dollars each) by the National Cancer Institote. • Recognized by the National Center for Complementary and Alternative Medicine as a separate integrative therapy. © 2012 RAAI ARCB ldenti fjin g the Legitimate ReJeXDlogy Practice Etbics and Business Standards An unethical, but growing trend in the USA is the operation of "reflexology parlors or studios" that front for operations of human trafficking and prostitution. All,professi(>nal reflexology form. Professional reflexologists adhere to a strict Code of Ethics and Business Standards set forth by national organizations, educational institutions, and state legislation. Resources For more infonnation or to report a potential case of human tmfficking, please contact your local law enforcement, or. National Human Trafficking Resource Center 1-888-373-7888 www.traffickingresoureecenter.com Professional Organizations in the Reflexology Field Both these Reflexology organizations are independent non-profit corporations governed by their own Board of Directors and work in cooperation with each other. ARCB American Reflexology Certification Board The primary aim of ARCB is to protect the public through certifying the eompetency of tmined reflexology practitioners. To aid the public in locating ARCB eertificants in their area it also provides a national referral directory through their website. Established in 1991, ARCB is a non-profi~ independent national testing agency. As such ARCB is not affiliated with any schooL instructor, business, or association. ARCB 303-933-6921 www.arcb.net RAA Reflexology Association of America RAA, established in 1995, is a member­ ship association open to reflexologists, reflexology scbools, and to those who are outside the field, but wish to support reflexology. RAA's primary goals include: • Advancing its members' interests, • • • • Sponsoring a bieunial conference, Acting as a national referral board for its member practitioners. Educating the public on reflexology and its benefits. Acting as a clearinghouse for infor­ mation about reGexology to the fed­ eral government, the public and its membership. RAA 980-234-0159 W1\o"W.rdlexology-usa.org Michael Rainone Scarsdale, NY PresiJttl~ Lucy Scarhrough jackson, TN Viet' Pr ... sident Janet Q'Foalin LllgUJlll NigueL CA BartI'd S~(retm'Y Perry Dickinson Topeka. KS TrY4Surer Mary Ann Stimmell rvIar~hfie1J, \vr Dij>ccwr Allnalise EveUS()il Old Green\vich, CT Diuctor Shat,+on Vetmeulen Grand Rapid." M( Adminimati!'! Secretary Chd8tine Issei AubuITt,CA Lrgistativc COilJllitaJJt ARCB • PO Box 141553 • Grand Rapids MI 49514 P -303.933.692'1 • f -303.904.0460 tofo@arcb.net • www.arcb.net 7 February 2012 To Whom It May Concern: The challenge faced today is how to regulate and license reflexology businesses that are potentially doing harm without severely restricting the ethical professional practicing reflexologist as an integrative therapist while ensuring public safety. A properly trained and nationally certified reflexologist will have met competency standards. Educational standards are important so that harm does not occur; however, reflexology does not involve invasive techniques, pharmaceutical substances, or is it to be used as a diagnostic tecbnique; therefore it is a low risk practice. Nationally evidence of physical harm due to an incompetent reflexologist has never been reported. Furthermore, the National Center for Complementary and Alternative Medicine (NCCAM) has found those who seek out complementary therapies to be well educated. This in and of itself lends an element to public safety. The decision \0 seek reflexology is controlled by the client (self-referred) and well-educated clients are more likely to know when to seek legal recourse and have adequate resources to pursue damages. Public welfare is served by consumers having broad access to reflexology and knowing that all service providers meet basic standards to perform their work. On the attached page is a list of suggested professional practitioner standards to be met allowing public safety. ARCB is willing to meet with the committee to discuss how best to address the issues it is faced with if further information is required. For immediate response I may be contacted bye-mail at quantumreflexology@earthlink.net or directly by telephone at 530-887-1364. Sincerely, Christine Issel Since .1.99.1 setting the bighr:st testing standards t,) which professional r~~c:xologists aspire Professional Practitioner Standards Setting standards for public safety would include reflexologist providing; a. Proof of U.S. reflexology education of at least 200 hours for each practitioner (if not G.S. then some kind of proof of education). b. National certification with the American Reflexology Certification Board (ARCB). In this way the state, city andfor county do not have to evaluate educational backgrounds and conduct psychometrically valid certification exam testing. See attached brochure for testing prerequisites. The testing process often takes 18 months from submission of the application to grading of documentations. If a reflexologist hss applied for testing, then a letter from ARCB stating the person is a candidate would suffice. c. Membership in professional association(s), the Reflexology Association of America (RAA) and/or the Reflexology Association of California (RAC). Membership also provides a system for grievances to be presented and resolved. ARCB, RAA & RAC investigate complaints and reprimand or otherwise discipline practitioners for a breach in the Code of Ethics and Business Practices. d. Proof of practitioner liability insurance-i.e., liability insurance policy number for each reflexologist. e. And required use of a Full and Fair Disclosure form as mandated by Statute 2053.5-6 of the California Business & Professions Code (Health Freedom of Access to CAM Therapies) which provides guidelines on how CAM therapy practitioners must present themselves. 2007 Profile of a Reflexologist Based on the responses provided in the ARCB National 2007 Job Analysis Survey, the "typical" reflexologist is a 52 year old, Caucasian female who is self-employed in reflexology and practices in a suburban area of New York. "Zoe" has been practicing for about 10 years, sees less than 10 clients per week and carries practice liability insurance. Although, Zoe conducts the majority of her sessions in a private practice at her home, she occasionally makes "outcalls" to her clients' homes. Zoe's sessions last about an hour. For most, reflexology is a mid-life career change. In addition to her "formal" education, from which she hss a four-year degree, Zoe's initial reflexology training consisted of a 200 hour program. To date, she has at least 500 hours of training in reflexology. She likely gained the additional hours of training through attendance at the workshops and conferences held by the state, national and international associations of which she is a member. During the course of her work, Zoe varies the pressure during her thumb and finger movements, uses circular pressure and avoids using her knuckles on the reflex points. She is careful to check with her clients intermittently throughout the session regarding their pressure preferences. She doesn't use tools, but occasionally uses lubricants during her work. Zoe always works on the feet and increasingly is incorporating work on the hands into her sessions. She is less apt to work on the ears. Following a code of ethics and business standards, Zoe doesn't provide psychological counseling, but does engage in active listening. She will often give her clients homework for self-help and will refer them to other health care providers on an "as-needed" basis. Zoe follows a combination ofthe stress reduction, medical and energy models of reflexology, but also believes that there are contraindications that always have to be considered. California Statutes of BUSINESS AND PROFESSIONS CODE Chapter 5 -Medicine -SECTION 2053.5-6 (AKA Health Freedom of Access ofeAM Therapies) 2053.5. (a} Notwithstanding any other provision 0= law, a person who complies with the requirements of Section 2Q53.6 shall not be in violation 0: Section 2051 or 2052 unless that person does any of the following: (1) Conducts surgery or any other procedure on another person that punctures the skin or harmfully invadesthe body. {2) Administers or prescribes ~ray radiation to another person. (3) Prescribes or administers legend drugs or controlled s'..lbstances to another person. (4) Recor.tmends the di8contin'Jance 0: legend drugs or controlled substances prescribed by an appropriately licensed practitioner. (5) Willfully diagnoses and treats a physical or mental condition of any person under circut:lstances or conditions that cause or create a risk of great bodily harm, serious physical or mental illness, or death. (6) Bets fractures. (7) Treats lacerations or abrasions through electrotherapy. (8) Holds out, states, indicates I advertises, or implies to a client or prospective client that he or she is a physician, a surgeon, or a physician and surgeon. (b) A person who advertises any services that are not 'Jl1lawful under Section 2051 or 2052 pursuant to subdivision (a) shall disclose in the advertisement that he or she is not licensed by the state as a healing arts practitioner. 2053.6. (a) A person who provides services pursuant to Section 2053.5 that are not unlawful under Section 2051 or 2052 shall, prior to providing those services, do the following: {l) Disclose to the clie~t in a written statement using plain language the following informati~: {A) That he or she is not a licensed physician. (B) That the treatment is alternative or complementary to healing arts services lice~sed by the state. {C) That the services to be provided are not licensed by the state. (D) The nature of the services to be provided. (E) The theory of treatment upon which the services are based. (F) His or her ed~cational, training, experience, and other qualifications regarding the services to be provided. (2) Obtain a written acknowledgment from theclient stating that ce or she has been provided with the information described in paragraph (1). The client shall be provided with a copy of the written acknowledgement I which shall be maintained by the person providing the service for three years. Cb) The in::ormation required by subdivision (a) shall be provided in a language that the client understands. (c) Nothing in this section or in Section 2053.5 shall be construed to do the following: (1) Affect the scope of practice of licensed physicians and surgeons. (2) Limit the right any other civil remedy to the req'..lirements of of any person to against a person this section, seek relief for negligence or providing services subject CODE OF ORDINANCES City of CITRUS HEIGHTS, CALIFORNIA Codified through Ordinance No. 2011-003, adopted March 24,2011. Chapter 22 -Businesses Article VIII Massage Establishments Sec. 22-600. -Title. Sec. 22-60 I. -Authority. Sec. 22-602. -Purpose and intent. Sec. 22-603. -Application of article to persons engaged in massage as of the effective date of this article; grandfather clause. Sec. 22-604, -Construction of this article with other city codes. Sec. 22-605. -Definitions. Sec. 22-606. -Exemptions from article. ,Secs. 22-607-22-609. -Reserved. Sec. 22-600. -Title. This article shall be known as the "Massage Establishment Licensing Law of the City of Citrus Heights." Sec. 22-605 Definitions The definitions contained in this section shall govern the construction of this article. Words contained in this article but not defined by this section shall be construed according to the ordinary and common usage of the word, taking into consirlemtion the context of the language and the definition of the word as provided in a standard English language dictionary. Applicant means any person who applies for a license as required by this article. In the event the applicant is a non-natural person (e.g. a corporation), the term applicant shaH also include a natural person legally authorized to act on behalf of the applicant and the person submitting the application to the city pursuant to this article. Approved national massage organization or association means an organization recognized by the City of Citrus Heights, specifically the: American Massage Therapy Association (AMTA) or the Associated Bodywork and Massage Professionals (ABMP), or a similar organization which requires: Completion of at least 100 hours of massage training or experience; possession of practitioner's liability insurance coverage in the minimum amount of$2,000,000.00 per event; adherence to a code of ethics; and renewal of an annual membership. Certificate or AlTO certificate means the certificate, or conditional certificate, issued by the massage thempy organization to massage therapists, pursuant to Business and Professions Code § 460 I (c) and to massage practitioners pursuant to subdivision 4601(b), or 4604(a), 4604(c), that entitles the holder to practice massage. When used in this article, "MTO certification" means a person who has a valid, unexpired MTO certificate. Certificate holder means a person who has an valid, unexpired certificate from the MTO to practice massage, who is in good standing with the MTO. Certified massage establishment mean a massage establishment that employs or uses only massage therapists with MTO certification to perfonn massage services. Certified sole proprietorship means a sole proprietorship where the owner has received MTO certification and is the only person employed by that business (0 provide massage services. Chief of police means the Citrus Heights Police Department Chief of Police or hislher designee. City means the City of Citrus Heights. City clerk means the City Clerk of the City of Citrus Heights or hislher designee. City council means the City CA)uncii of the City of Citrus Heights. Continuing education means a class or seminar in massage therapy or related educational subjects, including classes related to anatomy and physiology, contraindications, health and hygiene, provided by a recognized massage school, facility or organization approved by a national massage organization or association, or a state-approved school, or any other certification organization recognized by the finance director. Employee means a person who perfonns any massage service on the premises of a massage establishment on a full-time, part-time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not the person is paid a salary, wage or other compensation by the massage establishment. Finance director means the City of Citrus Heights Finance Director or hislher designee. Home occupation massage therapist means a massage therapist who engages in the business of massage therapy in hislher home or residence, or who engages in massage therapy in both hislher home or residence and in a massage establishment. Licensee means any person operating or maintaining a massage establishment pursuant to a massage establishment license. Massage means any method of pressure on, or friction against, or stroking, kneadiug, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the human body below the neck with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances, or with or without supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointroents or other similar preparations commonly used in the practice of massage. Massage establishment means a fixed place of business where any person engages in or carries on massage, as defined by this section, in exchange for any form of consideration. Massage establishment license or license means a license issued by the finance director and required pursuant to this article, to operate or maintain a massage establishment within the city, issued to the massage establishment owner. Massage therapist means any person who gives or administers a massage to another person, for any form of consideration whatsoever. Unless otherwise specified massage therapist includes those persons with MTO certification and those individuals classified by his/her school of education as bodyworkers, bodywork therapists, massage practitioner, bodywork practitioner or massage technicians. Massage therapist permit or permit means a permit issued by the city to a person, which authorizes the person to engage in the business of massage therapy within the city. Massage therapy organization or "MTO" means the nonprofit massage therapy organization established pursuant to Business and Professions Code § 4600 et seq. that has the authority to issue certificates to qualified massage therapists and massage practitioners. Offpremises massage therapist means massage therapists who provide off-premises massage services and who are self-employed and/or who contract with or work for a business other than a massage establishment Massage therapists who conduct massage as a home occupation are engaged in off-premises massage therapist businesses. Permittee means the person issued a massage therapist permit pursuant to this article. Person means any individual, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character. Recognized massage school means a facility that (I) teaches the theory, ethics, practice, profession or work of massage; 2) requires a resident course of stady before the student shall be furnished with a diploma or a cenificate of graduation from such school or institution of learning following the successful completion of such course' of stody or learning; and 3) meets the minimum standards for training and curriculum in massage and related subjects and that was either recognized by the Bureau of Private Postsecondary and Vocational Education pursuant to former Section 94739 of the California Education Code prior to July 1, 2007, and on the date the received hislher certificate, or is recognized by the department of consumer affairs, by an institution accredited by the Accrediting Commission for Senior Colleges and Universities Or the Accrediting Commission for Community and Junior colleges of tho Western Association for Schools and Colleges and that is one ofthe following: (a) a public institution, (b) an institution incorporated and lawfully operating as a nonprofit public benefit corporation under the state of California laws, and that is not managed by an entity for profit; (c) a for-profit institution; (d) an institution incorporated that does not meet all of the criteria in subparagraph (b) that is incorporated and lawfully operating as a nonprofit public benefit corporation, that has been continuously operating since April 15, 1997; (d) a college or university of the state of higher education system, as defined in Education Code § 100850; or (e) a school of greater or equal training that is approved by the corresponding agency recognized by the U.S. Department of Education. Schools or institutions oflearning offering a correspondence course not requiring actual attendance shall not be deemed a recognized massage school. The applicant shall provide the documentation necessary, to the satisfaction of the finance director, to provide proof that his/her school is a recognized massage school. Reflexology means a non-invasive complementary modality involving the use of alternating pressure applied to the reflexes within the reflex maps of the body located on the feet, hands, and outer ears. Responsible person means the person designated by a partnership, finn, association, joint stock company, corporation, limited liability corporation, to be responsible for the operation of the massage establishment. The responsible person must meet the qualifications under this article to receive a massage therapist permit from the city, including the educational requirements, and he/she must also provide documentation to the city evidencing that the corporation, partnership or entity that owns the massage establishment has designated himlher as the responsible person. Specified anatomical areas means, less than completely and opaquely covered: human genitals, public regions, buttocks, or female breasts below a point immediately above the top of the areola, and human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. No. 2008-10, § 1,5-8-2008; Ord. No. 2009-005, § 1,12-10-2009) Sec. 22-606 Exemptions from article This article shall not apply to the following classes ofindividuals and, except as provided in subsections (4) and (5) below, a massage establishment license or massage therapist permit shall not be required of such persons while engaged in the perfurmance of the duties of their respective professions, but such persons must comply with the sanitation and decency requirements of this article: (1) Physicians, surgeons, nurses, chiropractors, osteopaths, acupuncturists, naturopathic doctors and physical therapists who are duly licensed to practice their respective professions in the state, and massage therapists working under the direct supervision of such duly licensed physicians, snrgeons, chiropractors, osteopaths, acupuncturists, naturopathic doctors and physical therapists; (2) Trainers of any amateur, semiprofessional or professional athlete or athletic team; (3) Hospitals, nursing homes, or persons working in any such establishments; (4) Barbers or cosmetologists lawfully carrying out their particular occupation or business, and holding a valid, unrevoked license or certificate of registration issued by the State of California, and where massage comprises not more thaIi 25 percent of the square footage of the establishment; however, any massage therapist engaged in massage at such establishment shall be required to obtain a massage therapist pennit; (5) Athletic clubs or fitness facilities, where such facility is designed and equipped for indoor sports, exercise, or physical education and where massage comprises not more than ten percent of the square footage of the establishment shall not be required to obtain license pursuant to this article; however, any massage therapists engaged in massage at such establishment shall be required to obtain a massage therapist permit. (6) A recognized school ofrnassage which: (i) teaches the theory, ethics, practice, profession and work of massage; (ii) requires a residence course of study to be given before the student is furnished with a diploma or certificate of learning or completion; and (iii) has been approved pursuant to Education Code § 94915, or, if said school is not located in California, has complied with the standards commensurate with those specified in Education Code § 94915, (7) Reflexologists performing reflexology; however, any reflexologist engaged in massage shall be required to obtain a massage therapist pemlit, unless he/she has an MfO certificate, (Ord, No, 2008-10, § 1,5-8-2008; Ord, No, 2009-005, § 2,12-10-2009) P.o.BOX4286 Lakewood, CA 00711 How to Join ow-mission is !O assist each member co ~ rhf!ir viS>m bringing <M communlly roged1er through sIIilred ilt'fMl~ Md enhandng _ pto(€5$iofl as ~ whcle mrongllM!IV1t>m communication and iKtion. We make it eIlSy for )'tJu to got started in what is trIJIy ytIIoIr Association: Go to _.lIefIenlog,<A.arg to apply for membership onlil1e, Or phone us at (310) 899- 6289 to request an appHc.ation by mail. While on the ~ den'l (0IJ1& ro d1fc~ our the flW'1l' member bel>efJl;sI Professional Membership You qualify when you ptOIIlcie proof of either a 2OO-hour l'I!IlelroIogy training school tertifiC3tioll, or natiOnal board tertificatlon. Anlltlill Profe~llJm!,< $75 Associate Membership Associate membership are avajble to reflexology students, accredited reflexology schools, to private business and individuals. Annual Assoda Ie Due, $50 Dr. William Fitzgerald Histor.y Per HeruikLing (1872-1942) (Modern Originator) (1776-1839) Reflexology is the Definition Massage is the systematic application of specific and seientific manipulation pressures to reflex points in of the soft tissues of the the hands and feet Sr;;ol1~of f{actll;~ b.ady The extremities. From the Entirehody ankles and wrists distally to the tips ofthe toes and Basic Premise fingers There are zones and reflex Stroldng restores metabollc areas in the reet and hands imhalance within the soft correspondmg to all lJody tissue. Massage works parts. Reflexology worb through the musculature through the nervous system Body of Knowledge 40+ hooks solely on reflexology Books on massage Separate Reflexology Separate massage schools, schools, associations--local, assoeiations & a national state national, mtemational, certification hody & a national certification body Techniques & Alternating pressure Terminology Tapping Thumb. walking Kneading Fmger wallcing Stroldng Hook and hack-up Friction Rotation on a reflex Shaking Hands, ftJet, & possibly ears AppficaOOn Of To the entire hody Only $hoes & socks Techntques Client undresses . removed National certification Education Educati.onal programs requires a minimum of 200 ~ange from 100-1,OOQhours bours of study & often mcorporating other documented practice of touch modalities relle)(olQgy Scientific research studies Research Worldwide research studies conducted in USA, documenting the Australia, Denmark, Chma therapeutic value of, and elsewhere proving massage . effectiveness ofrefleJtology @ 199_6 American Refiexoloty Certification Board 7 February 2012 To Whom It May Concern: I am a reflexologist working with the Whitaker Wellness Clinic Medical Institute. Reflexology has been used at this internationally recognized clinic for nearly 20 years. The professional application of reflexology and massage as distinct forms of complementary therapies are offered to patients among other doctor ordered procedures. As separate disciplines they utilize different techniques and philosophical approaches resulting in outcomes unique to each' modality. Reflexology works primarily through the nervous system versus the soft tissue. Reflexology has been billed through CAM, PPO of America, Inc. a credentialed national alternative medicine network of providers. CAM PPO maintains an exclusive focus on building a comprehensive, holistic medicine network, ensuring that employees of Parker Hannifin Engineering in our area, with 10,000 covered members, for over 20 years have access to qualified CAM practitioners. With CAM providers in a variety of specialties and extensive online educational resources for members, CAM PPO of America, Inc. encourages CAM use, promoting health and well ness by identifying and credentialing the most qualified CAM practitioners and makes their services available at an affordable cost to patients. It would be a disservice to regulate reflexology under the massage. The issue before you is complex and hopefully working together we can come up with a solution that honors the business owner, reflexologists, and massage therapists while protecting public safety, Sincerely, Paul Harvey, C.R. 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" MU : t d . , b o d y _ m e d i c i o , e 1« ~ - o o W< l Y 3 to: h a r ~ a M ' mi r n f ~ ~ _ ~ . : n i ~ . ~ : ~ , ~ i ~ ~ , ~ J b e ~ fac t o o _ m < a ~ il·- p e r s o n ' i l1e . a t t h -"E x 3 m ~ !i} ( ' ~ . r n « t i t . n i O r \ c ~, ~ Y P 9 a , 1 POLICY AND SERVICES COMMITTEE EXCERPT Regular Meeting February 14, 2012 Chairperson Price called the meeting to order at 6:04 p.m. in the Council Conference Room, 250 Hamilton Avenue, Palo Alto, California. Present: Espinosa, Klein, Schmid Absent: Holman (Chair) 1. Request Policy and Service Committee Review of the Proposed Ordinance Changes to Section 4.54 Massage Establishments. Assistant to the City Manager, Sheila Tucker stated she would be Staffing the Policy and Services Committee this year and looked forward to working with the Council and serving the Committee. Palo Alto Police Lieutenant, April Wagner stated that the City Attorney’s Office and Police Department Staff members had worked on the proposed Ordinance change for over a year. She said that the Palo Alto Municipal Code Ordinance 4.54 was enacted in 1974 to ensure lawful commerce of massage businesses in Palo Alto. The Palo Alto Police Department (PAPD) was responsible for enforcing the Ordinance. In 1996, state laws were anticipated to change the regulation of massage businesses. The City suspended enforcement on portions of the Ordinance that included, permit renewals, fee collections, and site inspections. Background checks and permitting of new massage applicants continued. The current Ordinance, as written, violated state law. The City had 191 City permitted or California Massage Therapy Council (CAMTC) certified massage therapists. Palo Alto had three permitted massage establishments; Water Course, Body Kneads, and the Massage Therapy Center. There were four establishments that should have been permitted under the current regulations. A City audit revealed two dozen unpermitted massage establishments in Palo Alto. The adoption of Senate Bill 731 (SB731) in September 2009 impacted the ability of municipalities to regulate the practice of massage and the CAMTC, a 2 public, non-profit, benefit corporation was created. The corporation standardized and regulated the issuance of certificates to massage therapists and practitioners. Adoption of Assembly Bill 619 (AB619) in 2011, continued legislative work on portions of SB731 that were going to expire. Fifty percent of the massage therapists in Palo Alto were not state-certified. Many local municipalities revisited their ordinance since the passage of SB731. Staff reviewed local updated ordinances and worked with CAMTC Board Members in creating the document. An outreach program was conducted that involved citizens and therapists in a modification review of the Ordinance. Key objectives were to comply with State regulations, to insure qualified trained workers, exempted CAMTC certified practitioners or be permitted by the City, and allowed sole proprietorships in Palo Alto. The final draft change added language to exempt CAMTC holders from obtaining additional City massage permits, increased education from 100 to 200 hours from an accredited school, added sole proprietorship, required malpractice insurance, must display City permits as required by State law, and to maintain limited client records and made available by a court order. The new Ordinance eliminated special building and zoning requirements by State law and added the ability to deny a City permit to an applicant who had been denied, suspended, or had a CAMTC certificate revoked. The cost recovery fees for the program and Staff time were changed to be consistent with other cities. New establishment fees were $750, renewal fee $450; sole proprietorship fee $350, renewal fee $150; massage technician permit $300, renewal fee $150 for people that did not want to be state certified. A 2-year CAMTC certificate fee was $150, plus a $90 Livescan fingerprint or a criminal history check fee. Practitioners were required to have 250 hours and therapists 500 hours of education from an accredited school. CAMTC certified therapists not establishments. In conclusion, the proposed Ordinance would recognize and allow massage practice to occur in Palo Alto, allowed existing therapists and establishments to continue doing business, and allowed time for the therapists to comply with the requirements. Those who chose to patronize the establishments could feel confident that the therapist had met standardized qualifications. The Ordinance was consistent with other municipalities and state requirements. CAMTC Board Members found the draft Ordinance to be compliant with the state law. The passage of the Ordinance would allow the City to resume consistent enforcement on the massage businesses in Palo Alto. Mark Petersen-Perez, PaloAltoFreePress, spoke that massage therapists and practitioners had the right to deny law enforcement officials the ability to view the records unless they had a court order. The information was sensitive and confidential. 3 Vice President Susan Mix, Reflexology Association of California (Association), stated that the Ordinance revision did not unfairly encompass Reflexology within the Massage Ordinance. She said the scope of practice of Reflexology was a non-invasive, natural system of stress reduction and worked on a fully clothed person and only shoes and socks were removed. Work was done from the ankle to the tips of the toes, from the wrists to the tips of the fingers and the outer ear. Reflexologists do not rub backs of a client. The average price charged per session in the Bay Area was $50 to $100. She raised concerns that there may be establishments that were misclassified in Palo Alto as Reflexology and were included in the Ordinance. She urged the City to adopt an exemption to the Massage Ordinance and to create a separate ordinance for professional Reflexologists to protect the public. She said the Association was willing to work with the PAPD to craft an exemption. Vicky Venter, Reflexologist, stated that Reflexology was not massage. The practice of Reflexology was to bring the body back to balance through relaxation through the nervous system and not the musculature system. She said Reflexology should not be governed under massage laws and should have its own laws to include setting educational standards to support public safety concerns. Christine Issel, Reflexologist and Representative of the American Reflexology Certification Board (ARCB), spoke regarding the regulation and licensing of Reflexology businesses. She said some of the requirements that needed to be considered for licensing were evidence of an ARCB certification, proof of membership from one of the professional organization such as the Reflexology Association of California, proof of practitioner liability insurance, Livescan fingerprints, a government issued identification and to require the disclosure form from the California Business and Professional Code. She suggested setting educational standards and fingerprint requirements with the license application to prevent blurring the law and operating under misleading premises. Beverly D’Urson stated that she patronized Happy Feet Foot Spa in Palo Alto. She opposed the revision to the Ordinance because it would take away the ability to choose certain healing techniques. She said the Happy Feet Foot Spa specialized in a certain massage technique and the revised ordinance would force their staff members to obtain a massage permit. Robert Hessen spoke in support of the Happy Feet Foot Spa and asked that new restrictions not be imposed on the establishment. He clarified that the operation functioned in a transparent, open atmosphere that did not encourage inappropriate behavior. He urged the decision-making members 4 to examine the service that the Happy Feet Foot Spa offered before making a final decision. David Bertelsen, Happy Feet Foot Spa owner, raised concerns that the revision to the Ordinance would require staff members to be licensed under the new law. He urged the Council to reject the changes because anyone that practiced any form of massage would be grouped under one umbrella and would require unnecessary licensing. Ping Bertelsen, Happy Feet Foot Spa owner, stated neighboring cities did not require licensing for businesses similar to theirs and that Palo Alto law enforcement officers tried to convince them otherwise. He said the City of Mountain View had passed an ordinance specifically for their type of practice. A new category was created that exempted non-licensed massage practitioners from the standard massage licensing requirements. She said most of the south Bay Area establishments did not require licensing or fees that had the same type of business as theirs. Babs Mitchell stated that the Palo Alto Police Officers had placed restrictive requirements on various equipment and cleaning procedures in her establishment and stated the issues in question should be revisited. She felt that any establishment that practiced any type of massage should be under one ordinance. Dainuri Rott spoke in support of the Happy Feet Foot Spa. He said the services they offered were the only healthcare he used and were affordable. He asked the City to not enforce an ordinance that would force the establishment to discontinue their practice in Palo Alto. Robin Malmquist stated that the definition of the term “therapist”, “technician”, and “practitioner” used in the Ordinance did not coincide with the definition used by CAMTC. They should be the same, consistent, and easily understood. He asked that the Ordinance not be implemented until after all CAMTC applicants were certified. Applicants waiting to be certified were placed in a state of limbo and faced with having to make a choice to either follow the Ordinance route or CAMTC regulations. Council Member Klein asked if the state would occupy the massage field if the City did not move forward on the revision, and that the speakers at this evening’s meeting may or may not be governed by the state. Assistant City Attorney, Donald Larkin clarified that the state’s intent was to not occupy the field of massage if the City did not move forward on the proposed changes. The state’s attempt was to create a permitting system 5 that would take people away from local regulations. He said the Council had three options: 1) to allow massage practice with a state permit enforced through an ordinance, which was similar to the ordinances in neighboring cities. 2) the City allow people to opt out of local regulations by getting state-certified, which the enacted ordinance change would do, and 3) to repeal the City’s Massage Ordinance and not require practitioners to obtain state certification and the option for no regulations. Council Member Klein restated that if the City did nothing, and the City repealed the City’s Ordinance, which was inconsistent with the state law, there would be no regulations at all. Mr. Larkin said practitioners would not be required to be state-certified and there would be no regulation at all. Council Member Klein asked how was this issue handled in unincorporated areas. Mr. Larkin said they were governed by a County ordinance. Council Member Klein said the state provided the City with a system where the City could opt in and state regulations would take over. Mr. Larkin said that was correct. The state preempted the City from regulating anyone certified by the state but did not preempt the City from anyone who was not state-certified. The state placed the responsibility on the City to regulate non-state certified practitioners. Council Member Klein asked if the City could adopt an ordinance that would require practitioners to pay an annual permit fee of $1 if the City felt it did not require any type of regulations. Mr. Larkin said the City could repeal the existing ordinance and not have any regulations or to have a level of regulation such as a $1 annual permit fee to track permitted practitioners. Council Member Klein asked Mr. Larkin if the City repealed the Ordinance and had no regulations, would there be no regulations set by the state. Mr. Larkin said that was correct. Council Member Klein asked if that had been done elsewhere. Mr. Larkin said not in the local area but could not confirm for statewide. 6 Council Member Klein said there was an issue in the 1970’s and asked if the City had encountered issues in the field of massage within the last 30-years. He asked if this discussion would be taking place if the state had not enacted their law. Code Enforcement Officer, Heather Johnson said possibly. She stated that the CMTC was a voluntary, non-profit, program the City could opt into. The state would not take precedence if Palo Alto did not have a set of regulations. People with no formal training in the field of massage would be able to practice in Palo Alto. She said she could not identify cities that did not have ordinance regulations because the focus was on cities that had and studied their municipal code. Council Member Klein said the City had an Ordinance for 15 years that was in a state of suspense and asked if there had been any problems. Ms. Wagner said no. She said in an attempt to be a little more compliant to the changing regulations only portions of the existing Ordinance were suspended. The City continued to allow new practitioners to practice and did background checks. No fees were charged, and no site inspections were made. Council Member Klein said the massage field had its share of problems with prostitution and asked if there had been problems along those lines or in the practice of massage in Palo Alto in the past 30 years. Ms. Johnson said there had been problems. She said 99.9 percent of the therapists did a great job and provided a good service but a small portion did not. Council Member Klein asked about the Reflexology issue. Ms. Johnson said adopting an ordinance to accommodate Reflexology seemed reasonable. Businesses that were discussed at this evening’s meeting did not fall into the category of Reflexology. The Happy Feet Foot Spa practice fell into the description of massage. Their technique was not limited to touching hands, feet, and ears as regulations defined by the Reflexology Association of California. The issue of Reflexology was not addressed because patrons had described the service they received from the Happy Feet Foot Spa fit the definition of massage. Council Member Klein asked about the situation in the Cities of Mountain View and Los Altos. 7 Ms. Wagner stated that the City of Mountain View accommodated a non- certified massage establishment. The establishment and therapist paid fees but was exempted from education requirements. Council Member Klein said his understanding was that there was intent to exempt sole proprietorship. Ms. Wagner said that was incorrect. She said the definition of a sole proprietor was a single person, massage establishment. It basically was a person practicing massage in a rented room in an office space. Charlie Cullen, Deputy Director of Technical Services, clarified that was prohibited under the old Ordinance and a new category was created in order to certify sole proprietors. The City of Mountain View’s situation was an exception to the rule and had a special category that most other municipalities did not support in their ordinance. The City of Los Altos was on tract to require CMATC certification only and not provide any another method to qualify under their local ordinance. Council Member Klein said it was still unclear what was being accomplished for a sole proprietorship massage establishments. Ms. Wagner said in the effort to try to identify massage therapists they were not aware of that were practicing in Palo Alto, they discovered a large number of individuals who had their own personal offices, their own businesses that were single individuals, renting spaces and had clients. The PAPD deemed Palo Alto as a city that should be pro-business. They felt it was inappropriate to have 75 percent of the therapist not be state-certified. This was an incentive to work with these individuals to allow them to run a successful business, which meant having to change current regulations and to allow single persons to have sole proprietorship establishments. Council Member Klein asked if that individual was being regulated. Ms. Wagner said yes, if they were not state-certified. Council Member Klein said he was having trouble with the language as written in the Municipal Code. He said 4.54.020 defined a massage establishment as any establishment with more than one massage technician. Ms. Wagner said that was correct. It was a single person acting as a business owner and a massage technician. 8 Council Member Klein said his interpretation of the code was that this was one individual not subjected to the City’s regulation. Mr. Larkin said the individual was not subjected to the establishment regulations but was subjected to the individual permit regulations. Council Member Klein asked Mr. Larkin where that statement was located and if it referred to the statement “the technician permit would be required.” Mr. Larkin said yes. Council Member Schmid stated the document did not state this was a Police Department matter and needed clarification on why a law enforcement officer was representing the City. Ms. Wagner stated that a Code Enforcement Officer’s position was charged with enforcing this statute. The position assumed the permitting of taxicabs, alarms, massage establishments, solicitors, but she was not sure how far back the history was of the Code Enforcement Officer assuming the responsibility of permitting. Council Member Schmid said Council Member Klein mentioned there were problems in the field of massage in the 70’s and asked if there had been any problems since. He raised concerns that the Police Department was occupied with critical activities and asked if the field of massage was one of them. Ms. Wagner said 99.9 percent of the time there were none but could be a pervasive problem in communities. She confirmed that Palo Alto had its share of illicit activities but no recent incidents had been identified in massage parlors. Passage of the Ordinance would bring the issue to state law and help the Code Enforcement Officer oversee that the practice of massage functioned accordingly in the community. Council Member Schmid said his contact with the Police was through the Police Blotter in the newspaper and had assumed that every police call was listed. He said he did not recall seeing incidents or complaints that pertained to illicit sexual activities. Ms. Wagner confirmed they had gotten calls and some that required special investigation procedures but none were in massage establishments. Council Member Schmid said it would be helpful and important to have a statement that identified these issues in terms of the number of past and 9 present complaints along with the number of incidents that occurred in neighboring cities. The information would identify that these issues were activities handled by the Police Department and not by another City department. Mr. Cullen clarified that historically the issues that Council Member Klein referred to in the 70’s became an enforcement issue for the Police Department. The enforcement permitting process fell under the Police Department’s jurisdiction when the Ordinance was enacted and remained with the Police Department. The Police Department’s Code Enforcement Officer was a non-sworn, civilian, officer who enforced a number of other ordinances and in charge of permitting, ensured that practitioners complied with the rules and the Ordinance. The Code Enforcement Office could initiate an investigation if she saw an illicit activity occurring but the criminal aspect would be investigated by a sworn officer. Council Member Schmid raised concerns that the CAMTC was a non-profit organization that provided education and certification and that a CAMTC permitted practitioner would be outside the local code enforcement. He asked if that implied that a CAMTC permitted individual was not in danger of illicit activity. Ms. Wagner clarified that the CAMTC had a rigorous application process and had the ability to suspend, revoke, or deny a permit based on a complaint. CAMTC thresholds of complaints were low. Their investigation process was extensive and a practitioner under investigation would face heavy scrutiny. Mr. Larkin clarified that the CAMTC was a non-profit organization, a public benefit corporation created by the state government and a quasi- governmental agency similar to the state bar for attorneys. It was not an independent, non-profit without government functions. Council Member Schmid raised concerns regarding establishments to maintain a logbook. Ms. Wagner clarified the logbook was similar to a hotel registry. Law enforcement officers could review the information but would require a court order. The method was to assist both in the defense or prosecution of a therapist working at a business. Council Member Schmid asked if other professions such as physical therapist or personal trainers were asked to maintain a logbook. 10 Ms. Wagner said they did kept records that contained contact information, such as name, address, phone number and services performed. Hair dressers often maintained a logbook for the purpose of sending out mailers. Council Member Schmid stated that would be different than a logbook that contained specific dates, times, and detailed descriptions of services received. Mr. Cullen clarified that the Police Department was sensitive to the issues involved. Customer records in massage establishments would require a subpoena in order for a law enforcement officer to view the records. The process would be similar to any other business that faced a criminal investigation. He wanted to make clear that the subpoena requirement was added to the regulations. Council Member Schmid said the definition of a massage was touching of the exterior space of the body and could include several areas. He felt the definition of massage was too broad. Reflexology stated they did not have the same temptations that led to past abuses. He asked what definition did the Police Department use and if they felt it was too broad. Ms. Wagner stated the practice of massage involved the manipulation or applying pressure to the body. There was the threat of possible injury to the body during manipulation as well as criminal or sexual aspect that could occur. The definition of massage needed to be broad. The intent of the Ordinance was not to focus on the Reflexologist’s scope of work limited to the hands, feet, and ears but work that extended to the manipulation, applying pressure, and touching all over the body. Council Member Schmid noted that one of the speakers stated that half of the states make a distinction between massage therapy and Reflexology. He said the definition was not a standard definition but an interpretation and broader than others used. Council Member Espinosa stated what the Committee was hearing were issues of trying to determine a problem and how to fix it. There was the issue of illicit activities in Palo Alto and for the Council to support the Police Department to quickly address the situation. The other was how the proposed Ordinance change would impact the massage businesses in terms of people getting healthcare services, training requirements for employees, and wanting to protect the public. The impacts would affect the massage business, entrepreneurs, and small businesses without a real good cause and change an industry on services they were able to provide in the 11 community. He asked what Staff’s thoughts were on his comments and if there were concerns in respect to the development of the Ordinance. Ms. Wagner said everyone’s needs were considered in developing the Ordinance. She said that the category “sole proprietorship” was created to allow businesses to occur, to define massage and that all establishments played by the same rules. Additionally, state-certified people would be exempted. Council Member Espinosa asked if information could be collected regarding illicit activities, not on individual cases, if the Committee wanted to get a better understanding if the problem was significant enough to move forward to consider other impacts. Ms. Wagner explained that the nature of illicit activities occurred behind closed doors and did not know if accurate data could be obtained on the number of illicit activities that occurred. Council Member Espinosa asked if full cost recovery was the goal of the price point. Mr. Cullen said cost recovery probably did not cover Staff’s time spent in the implementation and moving forward on permitting. Council Member Espinosa asked Staff what the timeline would be to carve out the Reflexology portion and to come back to the Committee to address the issue. Ms. Wagner said it could take a few months. There were establishments that referred to themselves as Reflexology and performed other services. She did not think it would be necessary to develop an Ordinance solely for Reflexology. She said a definition could be added to the Ordinance to exempt Reflexology. Council Member Espinosa said the speakers touched on issues the Police Department felt that needed stricter regulations such as the method used to wash down equipment, separate faucets to accommodate hot and cold running water, terminology issues, and implementation dates. He asked if Staff could respond to these issues, was Staff in disagreement, or if further discussions needed to occur. Ms. Wagner said the intent was to apply regulations governed by state laws for municipalities to enforce health and safety rules that applied to massage businesses. She said the terminology issues could be revisited to see if a 12 better term could be used to define “technicians”, “practitioners” and therapists”. Mr. Larkin stated that Staff attempted to answer many of the questions during individual meetings with the practitioners and Staff would revisit comments that were overlooked. Council Member Schmid said Reflexology was an alternative type of practice and had a separate form of certification process. He felt that the Happy Feet Foot Spa was not Reflexology or the standard therapy and appeared to be innocuous. He said there was a spectrum of activities that seemed outside the boundaries that was focused on in reviewing the definitions. He suggested looking at how neighboring jurisdictions dealt with their ordinances, not just in a general sense, but what were the differences and how they might apply to what the City was dealing with. Ms. Wagner said they had reviewed other city ordinances and found there were different distinctions. She disagreed with the statement that the situation of having clothes on in an open room was different from clothes off in a closed room. She felt because there was a layer of clothing between the person’s hands and the body they were working on that through pressure and manipulation did not mean a criminal act could not occur. Happy Feet Foot Spa practiced Reflexology but the major portion of their service was full body massage. She understood why people appreciated the low-cost massage option. The intent of the Police Department was not to put anyone out of business. The Happy Feet Foot Spa proprietors were offered solutions to comply with the proposed Ordinance and time for their employees to get proper training. Mr. Bertelsen’s response was that Happy Feet Foot Spa would be put out of business if the employees received the proper education and would leave for better jobs. The Police Department wanted to see the Happy Feet Foot Spa to continue their operations in Palo Alto; however, their practices met the definition of massage and would need to comply with the same rules as other massage businesses in Palo Alto. MOTION: Council Member Klein moved, seconded by Council Member Espinosa that Staff return to the Policy and Services Committee with revised language for the recommended ordinance that excludes Reflexology. Council Member Klein stated that businesses were not always regulated. Regulations came about because of abuses in one form or another. One issue that resulted from licensing was people tried to move around boundaries to have lower-cost alternatives. Society did not allow people who were not appropriately state-certified to do things that were close to what licensed people did and resulted in disagreements. He said he would 13 be willing to exempt Happy Feet Foot Spa on the same basis as a Reflexology, but if their practice fitted the definition of massage they would need to comply with the same rules. He asked if Reflexology should have a licensing procedure. Mr. Larkin agreed. Council Member Espinosa said he agreed with Council Member Klein’s comments, but not for all the same reasons. He was in agreement of moving the item forward but did not agree that the City needed broad regulations around the field of massage. He felt that when the item was brought back to the full Council there would be Council Members that will raise the question of what was the problem that Staff was trying to resolve, why the proposed revision was needed, and how the Ordinance would solve those problems. He supported the Motion. Council Member Schmid suggested having a clear statement that identified the problem and how the regulations would deal with the problem. He said it would be helpful for Staff to return with more information regarding the ordinances in other cities. The City could do a comparison to what other municipalities were doing in regards to their ordinances. Ms. Tucker said in moving forward it might be helpful for Staff to come back with information regarding historical investigations and arrests around this type of behavior both locally as well as surrounding jurisdictions. The information provided would be done on general information and not individual cases. MOTION PASSED 3-0, Holman Absent City of Palo Alto (ID # 2708) Policy and Services Committee Staff Report Report Type: Meeting Date: 4/10/2012 April 10, 2012 Page 1 of 5 (ID # 2708) Summary Title: Massage Ordinance Follow-up Title: Review and Recommend Council Approval of Proposed Updated Massage Ordinance From: City Manager Lead Department: Police Recommendation Staff recommends that the Policy and Services Committee review the proposed updated Massage Ordinance and recommend approval of the ordinance to the City Council. Executive Summary The draft ordinance was presented to the Policy and Services Committee on February 14, 2012. Committee members requested additional information be prepared and changes be considered to the draft ordinance. Staff has reviewed the proposed ordinance and completed modifications taking into consideration the requests of the Committee and community members. Staff is also prepared to further discuss the modifications and address the questions brought forth at the previous meeting. Background At the February 14, 2012, Policy and Services Committee meeting staff presented proposed revisions to the existing Massage Ordinance, Palo Alto Municipal Code 4.54. Changes to the ordinance are necessitated by new state legislation that changed municipalities’ ability to regulate the practice of massage. Palo Alto’s existing ordinance is in violation of the new state law. Staff revised the ordinance to comply with state law and made additional changes to facilitate the ability of existing practitioners to remain in business. At the meeting, staff outlined the applicable state laws relating to massage regulation and described the input from 1 Packet Pg. 4 April 10, 2012 Page 2 of 5 (ID # 2708) the massage community from several previous meetings. Staff explained how that input was taken into account when drafting the ordinance and how the proposed fee structure was derived. After much discussion from staff and community members, the Policy and Services Committee recommended that modifications to the ordinance be considered and the following questions be addressed at a follow-up meeting on April 10, 2012: 1. Why is it necessary to make the proposed ordinance changes? 2. Why is it necessary to regulate massage at all in the City of Palo Alto? 3. Does the City of Palo Alto have problems with crimes related to massage? 4. Why is there a need for massage establishments to keep client contact records? 5. Are there ordinance language changes that can be made for the establishment requirements in the areas of hot/cold water, table coverings, and the need for safety boxes? 6. What do other cities do with massage and reflexology regulation? 7. What type of language can be added to the ordinance to cover reflexologists and reflexology-only businesses? Discussion Staff conducted additional research and is prepared to address the questions and changes requested by the Committee. 1) Why is it necessary to make the proposed ordinance changes? The current ordinance is out of compliance with state law changes that were made in September 2009. The City of Palo Alto has regulated massage since 1974 when questionable massage establishments were flourishing on El Camino Real. Most states within our country regulate massage to some 1 Packet Pg. 5 April 10, 2012 Page 3 of 5 (ID # 2708) degree and most cities within our’s and adjacent counties have massage ordinances. 2) Why is it necessary to regulate massage at all in the City of Palo Alto? Massage therapy involves full body touching, unlike any other therapy outside of the medical profession. Due to the nature of massage, the predominant types of crimes reported in the massage setting are sexual in nature. Studies have shown that sexual assault crimes are vastly underreported and are likely to happen to many females in a variety of settings, both public and private. The Police Department has received complaints of unwanted sexual contact from customers of massage businesses. In addition, during a community meeting, several massage practitioners told staff they have been victims of unwanted sexual contact by clients. Illegitimate massage businesses have a high likelihood of using victims of Human Trafficking in their business. As most municipalities in the Bay Area have some form of Massage regulation, there is a real risk of attracting illegitimate enterprises to an unregulated environment. 3) Does the City of Palo Alto have problems with crimes related to massage? Over the past 10 years, ten sexual assault-type crimes have been investigated at Palo Alto massage establishments. Research into the availability of adult sensual massage in Palo Alto revealed multiple websites advertizing business to persons in Palo Alto. The crime of prostitution does occur in Palo Alto but is difficult to prosecute without complicated police sting operations. Data from the Records Management System shows Police and Fire responded to 67 calls for service at the three largest massage establishments since the beginning of 2005. 4) Why is there a need for massage establishments to keep client contact records? The purpose of client contact records is to assist law enforcement in fact- finding when criminal allegations are made involving massage therapists. Most other municipalities require client contact reords to be kept. The 1 Packet Pg. 6 April 10, 2012 Page 4 of 5 (ID # 2708) information would only be available to law enforcement with a court order. Client records could aid in an investigation, either to prove or disprove allegations of misconduct against massage practitioners or clients. 5) Are there ordinance language changes that can be made for the establishment requirements in the areas of hot/cold water, table coverings, and the need for safety boxes? Staff reviewed the sections pertaining to hot and cold water availability in establishments and did not make any changes. Staff believes that the existing language allows for flexibility in how hot and cold water is provided. Staff reviewed the section pertaining to establishment table covering material and did not make any changes, because the existing language only requires that tables and table coverings be washable. Specific coverings are suggested, but not required. Staff reviewed the section of hand-drying options and added electric hand-drying devices as an allowable option. Staff reviewed the section requiring locked boxes for personal possessions and removed the requirement. Refer to Attachment A. 6) What do other cities do with massage and reflexology regulation? Many cities in Santa Clara and San Mateo Counties have massage ordinances. Please refer to Attachment B for a comparison of Palo Alto with 13 other cities. Only one city surveyed, Citrus Heights, included a reflexology exemption in its massage ordinance. 7. What type of language can be added to the ordinance to cover reflexologists and reflexology-only businesses? In response to requests from reflexologists who attended the February 14th Committee meeting, staff reviewed the draft ordinance and added a definition for “reflexology” based on definitions from other states that regulate reflexology. Additional language was added to the ordinance to exempt reflexologists when practicing in Palo Alto. 1 Packet Pg. 7 April 10, 2012 Page 5 of 5 (ID # 2708) Resource Impact The revised ordinance will have no fiscal impact on the City. The code enforcement officer who administers the massage permitting program will have additional duties and responsibilities. Timeline Staff recommends presenting the draft ordinance changes to City Council at the next available meeting following approval by the Policy and Services Committee. Attachments: -: Attachment A - PAMC 4.54 (PDF) -: Attachment B - Massage Spreadsheet 032612 (PDF) -: Attachment C - February P&S - Massage Ordinance Minutes -EXCERPT (PDF) Prepared By: April Wagner, Police Lieutenant Department Head: Dennis Burns, Police Chief City Manager Approval: ____________________________________ James Keene, City Manager 1 Packet Pg. 8 1 ***Proposed Massage Municipal Code*** 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 the owners and all practitioners are CAMTC certified. 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 or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business. (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 as the principal functions. 1.a Packet Pg. 9 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 2 (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 technician 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 non- profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. (11) “Accessory Technician Permit” A technician 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. 4.54.030 Massage establishment permit required. (a) Except as otherwise provided, it is unlawful for any person to engage in, conduct or carry on, 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. A massage establishment permit shall be issued to any person who has complied 1.a Packet Pg. 10 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 3 with the requirements of Sections 4.54.050 and 4.54.110 of this chapter, and all other applicable 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 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. 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. 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 1.a Packet Pg. 11 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 4 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 addition 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 of the stock of the corporation. If the 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; 8. The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the 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. 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 1.a Packet Pg. 12 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 5 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 of this 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. (b) A permit issued by the chief of police is not required for any massage technician and massage establishments if the owners and 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. 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. 1.a Packet Pg. 13 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 6 (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 the 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 of time. 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 as a massage technician within said establishment shall not be required to furnish the information set forth in Section 4.54.080. 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 reasons for denial thereof. If he takes neither action, the permit shall be deemed to be issued. The chief 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 applicant; (5) Written evidence that the applicant is at least eighteen years of age; 1.a Packet Pg. 14 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 7 (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. 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 proof that 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 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 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 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 permit, completes the instruction required of a massage technician, shall be issued a massage technician 1.a Packet Pg. 15 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 8 permit upon payment of a massage technician application fee as set forth in the municipal fee schedule. 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. 4.54.110 Massage establishment facilities and operations requirements. (a) Except as otherwise indicated, all massage establishments, including those certified by CAMTC, shall comply with the following facilities and operations requirements: (1) Massage establishments shall comply with all code requirements. (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. (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 and/or 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 1.a Packet Pg. 16 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 9 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 into 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 and 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 clean 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 (17), shall not apply to CAMTC certified establishments: (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. (11 p.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 for the 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; 1.a Packet Pg. 17 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 10 (ii) The criteria outlined in Section 4.54.030 of this 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 massage 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 restrictions of this section shall be subject to review and renewal annually at the same time as the renewal of the 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) Every massage establishment and sole proprietor massage establishment shall keep written client records of the following: the date and hour of each service; the name, contact information and sex of each patron; the service provided, and the technician administering the service. A massage establishment is not required to provide client records to the City or any other enforcement agency without an order from a court of competent jurisdiction authorizing the release. (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. 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 time 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. 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. 4.54.140 Business location change. 1.a Packet Pg. 18 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 11 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. 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 a result 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 each such sale or transfer. 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. 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. (4) Reflexologists performing reflexology; however any reflexologist engaged in massage shall be required to comply with the provisions of this Chapter. 4.54.180 Grounds for denial, probation, and disciplinary action. 1.a Packet Pg. 19 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 12 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. 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. 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. 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. 1.a Packet Pg. 20 -: A t t a c h m e n t A - P A M C 4 . 5 4 ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) Massage Ordinance Comparison-April 2012 Agency Education Client Records Liability Insurance City Permit Option Exempt Foot Massage Reflexology Language Belmont 500 yes $500,000 yes no no Burlingame 500 yes $500,000 yes no no CAMTC 250 no no n/a no no Citrus Heights* 200 no $2,000,000 yes no yes-exempt reflexology Foster City 500 yes $500,000 yes no no Los Gatos 300 yes $100,000 yes no no Millbrae 500 yes $500,000 yes no uses term 'reflexology' but requires the same permit as massage Mountain View 100 no no yes no but they have 'noncertified' massage establishments no PA(Proposed) 200 yes $100,000 yes considering considering Redwood City CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only San Carlos CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only San Mateo 200 yes $100,000 practitioner $500,000 est.yes no no SMCSO CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only CAMTC only Sunnyvale 100 yes $1,000,000 yes no no *only example of reflexology exemption 1.b Pa c k e t P g . 2 1 -: Attachment B - Massage Spreadsheet 032612 (2708 : Massage Ordinance Follow-up) 1 POLICY AND SERVICES COMMITTEE EXCERPT Regular Meeting February 14, 2012 Chairperson Price called the meeting to order at 6:04 p.m. in the Council Conference Room, 250 Hamilton Avenue, Palo Alto, California. Present: Espinosa, Klein, Schmid Absent: Holman (Chair) 1. Request Policy and Service Committee Review of the Proposed Ordinance Changes to Section 4.54 Massage Establishments. Assistant to the City Manager, Sheila Tucker stated she would be Staffing the Policy and Services Committee this year and looked forward to working with the Council and serving the Committee. Palo Alto Police Lieutenant, April Wagner stated that the City Attorney’s Office and Police Department Staff members had worked on the proposed Ordinance change for over a year. She said that the Palo Alto Municipal Code Ordinance 4.54 was enacted in 1974 to ensure lawful commerce of massage businesses in Palo Alto. The Palo Alto Police Department (PAPD) was responsible for enforcing the Ordinance. In 1996, state laws were anticipated to change the regulation of massage businesses. The City suspended enforcement on portions of the Ordinance that included, permit renewals, fee collections, and site inspections. Background checks and permitting of new massage applicants continued. The current Ordinance, as written, violated state law. The City had 191 City permitted or California Massage Therapy Council (CAMTC) certified massage therapists. Palo Alto had three permitted massage establishments; Water Course, Body Kneads, and the Massage Therapy Center. There were four establishments that should have been permitted under the current regulations. A City audit revealed two dozen unpermitted massage establishments in Palo Alto. The adoption of Senate Bill 731 (SB731) in September 2009 impacted the ability of municipalities to regulate the practice of massage and the CAMTC, a 1.c Packet Pg. 22 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 2 public, non-profit, benefit corporation was created. The corporation standardized and regulated the issuance of certificates to massage therapists and practitioners. Adoption of Assembly Bill 619 (AB619) in 2011, continued legislative work on portions of SB731 that were going to expire. Fifty percent of the massage therapists in Palo Alto were not state-certified. Many local municipalities revisited their ordinance since the passage of SB731. Staff reviewed local updated ordinances and worked with CAMTC Board Members in creating the document. An outreach program was conducted that involved citizens and therapists in a modification review of the Ordinance. Key objectives were to comply with State regulations, to insure qualified trained workers, exempted CAMTC certified practitioners or be permitted by the City, and allowed sole proprietorships in Palo Alto. The final draft change added language to exempt CAMTC holders from obtaining additional City massage permits, increased education from 100 to 200 hours from an accredited school, added sole proprietorship, required malpractice insurance, must display City permits as required by State law, and to maintain limited client records and made available by a court order. The new Ordinance eliminated special building and zoning requirements by State law and added the ability to deny a City permit to an applicant who had been denied, suspended, or had a CAMTC certificate revoked. The cost recovery fees for the program and Staff time were changed to be consistent with other cities. New establishment fees were $750, renewal fee $450; sole proprietorship fee $350, renewal fee $150; massage technician permit $300, renewal fee $150 for people that did not want to be state certified. A 2-year CAMTC certificate fee was $150, plus a $90 Livescan fingerprint or a criminal history check fee. Practitioners were required to have 250 hours and therapists 500 hours of education from an accredited school. CAMTC certified therapists not establishments. In conclusion, the proposed Ordinance would recognize and allow massage practice to occur in Palo Alto, allowed existing therapists and establishments to continue doing business, and allowed time for the therapists to comply with the requirements. Those who chose to patronize the establishments could feel confident that the therapist had met standardized qualifications. The Ordinance was consistent with other municipalities and state requirements. CAMTC Board Members found the draft Ordinance to be compliant with the state law. The passage of the Ordinance would allow the City to resume consistent enforcement on the massage businesses in Palo Alto. Mark Petersen-Perez, PaloAltoFreePress, spoke that massage therapists and practitioners had the right to deny law enforcement officials the ability to view the records unless they had a court order. The information was sensitive and confidential. 1.c Packet Pg. 23 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 3 Vice President Susan Mix, Reflexology Association of California (Association), stated that the Ordinance revision did not unfairly encompass Reflexology within the Massage Ordinance. She said the scope of practice of Reflexology was a non-invasive, natural system of stress reduction and worked on a fully clothed person and only shoes and socks were removed. Work was done from the ankle to the tips of the toes, from the wrists to the tips of the fingers and the outer ear. Reflexologists do not rub backs of a client. The average price charged per session in the Bay Area was $50 to $100. She raised concerns that there may be establishments that were misclassified in Palo Alto as Reflexology and were included in the Ordinance. She urged the City to adopt an exemption to the Massage Ordinance and to create a separate ordinance for professional Reflexologists to protect the public. She said the Association was willing to work with the PAPD to craft an exemption. Vicky Venter, Reflexologist, stated that Reflexology was not massage. The practice of Reflexology was to bring the body back to balance through relaxation through the nervous system and not the musculature system. She said Reflexology should not be governed under massage laws and should have its own laws to include setting educational standards to support public safety concerns. Christine Issel, Reflexologist and Representative of the American Reflexology Certification Board (ARCB), spoke regarding the regulation and licensing of Reflexology businesses. She said some of the requirements that needed to be considered for licensing were evidence of an ARCB certification, proof of membership from one of the professional organization such as the Reflexology Association of California, proof of practitioner liability insurance, Livescan fingerprints, a government issued identification and to require the disclosure form from the California Business and Professional Code. She suggested setting educational standards and fingerprint requirements with the license application to prevent blurring the law and operating under misleading premises. Beverly D’Urson stated that she patronized Happy Feet Foot Spa in Palo Alto. She opposed the revision to the Ordinance because it would take away the ability to choose certain healing techniques. She said the Happy Feet Foot Spa specialized in a certain massage technique and the revised ordinance would force their staff members to obtain a massage permit. Robert Hessen spoke in support of the Happy Feet Foot Spa and asked that new restrictions not be imposed on the establishment. He clarified that the operation functioned in a transparent, open atmosphere that did not encourage inappropriate behavior. He urged the decision-making members 1.c Packet Pg. 24 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 4 to examine the service that the Happy Feet Foot Spa offered before making a final decision. David Bertelsen, Happy Feet Foot Spa owner, raised concerns that the revision to the Ordinance would require staff members to be licensed under the new law. He urged the Council to reject the changes because anyone that practiced any form of massage would be grouped under one umbrella and would require unnecessary licensing. Ping Bertelsen, Happy Feet Foot Spa owner, stated neighboring cities did not require licensing for businesses similar to theirs and that Palo Alto law enforcement officers tried to convince them otherwise. He said the City of Mountain View had passed an ordinance specifically for their type of practice. A new category was created that exempted non-licensed massage practitioners from the standard massage licensing requirements. She said most of the south Bay Area establishments did not require licensing or fees that had the same type of business as theirs. Babs Mitchell stated that the Palo Alto Police Officers had placed restrictive requirements on various equipment and cleaning procedures in her establishment and stated the issues in question should be revisited. She felt that any establishment that practiced any type of massage should be under one ordinance. Dainuri Rott spoke in support of the Happy Feet Foot Spa. He said the services they offered were the only healthcare he used and were affordable. He asked the City to not enforce an ordinance that would force the establishment to discontinue their practice in Palo Alto. Robin Malmquist stated that the definition of the term “therapist”, “technician”, and “practitioner” used in the Ordinance did not coincide with the definition used by CAMTC. They should be the same, consistent, and easily understood. He asked that the Ordinance not be implemented until after all CAMTC applicants were certified. Applicants waiting to be certified were placed in a state of limbo and faced with having to make a choice to either follow the Ordinance route or CAMTC regulations. Council Member Klein asked if the state would occupy the massage field if the City did not move forward on the revision, and that the speakers at this evening’s meeting may or may not be governed by the state. Assistant City Attorney, Donald Larkin clarified that the state’s intent was to not occupy the field of massage if the City did not move forward on the proposed changes. The state’s attempt was to create a permitting system 1.c Packet Pg. 25 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 5 that would take people away from local regulations. He said the Council had three options: 1) to allow massage practice with a state permit enforced through an ordinance, which was similar to the ordinances in neighboring cities. 2) the City allow people to opt out of local regulations by getting state-certified, which the enacted ordinance change would do, and 3) to repeal the City’s Massage Ordinance and not require practitioners to obtain state certification and the option for no regulations. Council Member Klein restated that if the City did nothing, and the City repealed the City’s Ordinance, which was inconsistent with the state law, there would be no regulations at all. Mr. Larkin said practitioners would not be required to be state-certified and there would be no regulation at all. Council Member Klein asked how was this issue handled in unincorporated areas. Mr. Larkin said they were governed by a County ordinance. Council Member Klein said the state provided the City with a system where the City could opt in and state regulations would take over. Mr. Larkin said that was correct. The state preempted the City from regulating anyone certified by the state but did not preempt the City from anyone who was not state-certified. The state placed the responsibility on the City to regulate non-state certified practitioners. Council Member Klein asked if the City could adopt an ordinance that would require practitioners to pay an annual permit fee of $1 if the City felt it did not require any type of regulations. Mr. Larkin said the City could repeal the existing ordinance and not have any regulations or to have a level of regulation such as a $1 annual permit fee to track permitted practitioners. Council Member Klein asked Mr. Larkin if the City repealed the Ordinance and had no regulations, would there be no regulations set by the state. Mr. Larkin said that was correct. Council Member Klein asked if that had been done elsewhere. Mr. Larkin said not in the local area but could not confirm for statewide. 1.c Packet Pg. 26 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 6 Council Member Klein said there was an issue in the 1970’s and asked if the City had encountered issues in the field of massage within the last 30-years. He asked if this discussion would be taking place if the state had not enacted their law. Code Enforcement Officer, Heather Johnson said possibly. She stated that the CMTC was a voluntary, non-profit, program the City could opt into. The state would not take precedence if Palo Alto did not have a set of regulations. People with no formal training in the field of massage would be able to practice in Palo Alto. She said she could not identify cities that did not have ordinance regulations because the focus was on cities that had and studied their municipal code. Council Member Klein said the City had an Ordinance for 15 years that was in a state of suspense and asked if there had been any problems. Ms. Wagner said no. She said in an attempt to be a little more compliant to the changing regulations only portions of the existing Ordinance were suspended. The City continued to allow new practitioners to practice and did background checks. No fees were charged, and no site inspections were made. Council Member Klein said the massage field had its share of problems with prostitution and asked if there had been problems along those lines or in the practice of massage in Palo Alto in the past 30 years. Ms. Johnson said there had been problems. She said 99.9 percent of the therapists did a great job and provided a good service but a small portion did not. Council Member Klein asked about the Reflexology issue. Ms. Johnson said adopting an ordinance to accommodate Reflexology seemed reasonable. Businesses that were discussed at this evening’s meeting did not fall into the category of Reflexology. The Happy Feet Foot Spa practice fell into the description of massage. Their technique was not limited to touching hands, feet, and ears as regulations defined by the Reflexology Association of California. The issue of Reflexology was not addressed because patrons had described the service they received from the Happy Feet Foot Spa fit the definition of massage. Council Member Klein asked about the situation in the Cities of Mountain View and Los Altos. 1.c Packet Pg. 27 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 7 Ms. Wagner stated that the City of Mountain View accommodated a non- certified massage establishment. The establishment and therapist paid fees but was exempted from education requirements. Council Member Klein said his understanding was that there was intent to exempt sole proprietorship. Ms. Wagner said that was incorrect. She said the definition of a sole proprietor was a single person, massage establishment. It basically was a person practicing massage in a rented room in an office space. Charlie Cullen, Deputy Director of Technical Services, clarified that was prohibited under the old Ordinance and a new category was created in order to certify sole proprietors. The City of Mountain View’s situation was an exception to the rule and had a special category that most other municipalities did not support in their ordinance. The City of Los Altos was on tract to require CMATC certification only and not provide any another method to qualify under their local ordinance. Council Member Klein said it was still unclear what was being accomplished for a sole proprietorship massage establishments. Ms. Wagner said in the effort to try to identify massage therapists they were not aware of that were practicing in Palo Alto, they discovered a large number of individuals who had their own personal offices, their own businesses that were single individuals, renting spaces and had clients. The PAPD deemed Palo Alto as a city that should be pro-business. They felt it was inappropriate to have 75 percent of the therapist not be state-certified. This was an incentive to work with these individuals to allow them to run a successful business, which meant having to change current regulations and to allow single persons to have sole proprietorship establishments. Council Member Klein asked if that individual was being regulated. Ms. Wagner said yes, if they were not state-certified. Council Member Klein said he was having trouble with the language as written in the Municipal Code. He said 4.54.020 defined a massage establishment as any establishment with more than one massage technician. Ms. Wagner said that was correct. It was a single person acting as a business owner and a massage technician. 1.c Packet Pg. 28 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 8 Council Member Klein said his interpretation of the code was that this was one individual not subjected to the City’s regulation. Mr. Larkin said the individual was not subjected to the establishment regulations but was subjected to the individual permit regulations. Council Member Klein asked Mr. Larkin where that statement was located and if it referred to the statement “the technician permit would be required.” Mr. Larkin said yes. Council Member Schmid stated the document did not state this was a Police Department matter and needed clarification on why a law enforcement officer was representing the City. Ms. Wagner stated that a Code Enforcement Officer’s position was charged with enforcing this statute. The position assumed the permitting of taxicabs, alarms, massage establishments, solicitors, but she was not sure how far back the history was of the Code Enforcement Officer assuming the responsibility of permitting. Council Member Schmid said Council Member Klein mentioned there were problems in the field of massage in the 70’s and asked if there had been any problems since. He raised concerns that the Police Department was occupied with critical activities and asked if the field of massage was one of them. Ms. Wagner said 99.9 percent of the time there were none but could be a pervasive problem in communities. She confirmed that Palo Alto had its share of illicit activities but no recent incidents had been identified in massage parlors. Passage of the Ordinance would bring the issue to state law and help the Code Enforcement Officer oversee that the practice of massage functioned accordingly in the community. Council Member Schmid said his contact with the Police was through the Police Blotter in the newspaper and had assumed that every police call was listed. He said he did not recall seeing incidents or complaints that pertained to illicit sexual activities. Ms. Wagner confirmed they had gotten calls and some that required special investigation procedures but none were in massage establishments. Council Member Schmid said it would be helpful and important to have a statement that identified these issues in terms of the number of past and 1.c Packet Pg. 29 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 9 present complaints along with the number of incidents that occurred in neighboring cities. The information would identify that these issues were activities handled by the Police Department and not by another City department. Mr. Cullen clarified that historically the issues that Council Member Klein referred to in the 70’s became an enforcement issue for the Police Department. The enforcement permitting process fell under the Police Department’s jurisdiction when the Ordinance was enacted and remained with the Police Department. The Police Department’s Code Enforcement Officer was a non-sworn, civilian, officer who enforced a number of other ordinances and in charge of permitting, ensured that practitioners complied with the rules and the Ordinance. The Code Enforcement Office could initiate an investigation if she saw an illicit activity occurring but the criminal aspect would be investigated by a sworn officer. Council Member Schmid raised concerns that the CAMTC was a non-profit organization that provided education and certification and that a CAMTC permitted practitioner would be outside the local code enforcement. He asked if that implied that a CAMTC permitted individual was not in danger of illicit activity. Ms. Wagner clarified that the CAMTC had a rigorous application process and had the ability to suspend, revoke, or deny a permit based on a complaint. CAMTC thresholds of complaints were low. Their investigation process was extensive and a practitioner under investigation would face heavy scrutiny. Mr. Larkin clarified that the CAMTC was a non-profit organization, a public benefit corporation created by the state government and a quasi- governmental agency similar to the state bar for attorneys. It was not an independent, non-profit without government functions. Council Member Schmid raised concerns regarding establishments to maintain a logbook. Ms. Wagner clarified the logbook was similar to a hotel registry. Law enforcement officers could review the information but would require a court order. The method was to assist both in the defense or prosecution of a therapist working at a business. Council Member Schmid asked if other professions such as physical therapist or personal trainers were asked to maintain a logbook. 1.c Packet Pg. 30 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 10 Ms. Wagner said they did kept records that contained contact information, such as name, address, phone number and services performed. Hair dressers often maintained a logbook for the purpose of sending out mailers. Council Member Schmid stated that would be different than a logbook that contained specific dates, times, and detailed descriptions of services received. Mr. Cullen clarified that the Police Department was sensitive to the issues involved. Customer records in massage establishments would require a subpoena in order for a law enforcement officer to view the records. The process would be similar to any other business that faced a criminal investigation. He wanted to make clear that the subpoena requirement was added to the regulations. Council Member Schmid said the definition of a massage was touching of the exterior space of the body and could include several areas. He felt the definition of massage was too broad. Reflexology stated they did not have the same temptations that led to past abuses. He asked what definition did the Police Department use and if they felt it was too broad. Ms. Wagner stated the practice of massage involved the manipulation or applying pressure to the body. There was the threat of possible injury to the body during manipulation as well as criminal or sexual aspect that could occur. The definition of massage needed to be broad. The intent of the Ordinance was not to focus on the Reflexologist’s scope of work limited to the hands, feet, and ears but work that extended to the manipulation, applying pressure, and touching all over the body. Council Member Schmid noted that one of the speakers stated that half of the states make a distinction between massage therapy and Reflexology. He said the definition was not a standard definition but an interpretation and broader than others used. Council Member Espinosa stated what the Committee was hearing were issues of trying to determine a problem and how to fix it. There was the issue of illicit activities in Palo Alto and for the Council to support the Police Department to quickly address the situation. The other was how the proposed Ordinance change would impact the massage businesses in terms of people getting healthcare services, training requirements for employees, and wanting to protect the public. The impacts would affect the massage business, entrepreneurs, and small businesses without a real good cause and change an industry on services they were able to provide in the 1.c Packet Pg. 31 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 11 community. He asked what Staff’s thoughts were on his comments and if there were concerns in respect to the development of the Ordinance. Ms. Wagner said everyone’s needs were considered in developing the Ordinance. She said that the category “sole proprietorship” was created to allow businesses to occur, to define massage and that all establishments played by the same rules. Additionally, state-certified people would be exempted. Council Member Espinosa asked if information could be collected regarding illicit activities, not on individual cases, if the Committee wanted to get a better understanding if the problem was significant enough to move forward to consider other impacts. Ms. Wagner explained that the nature of illicit activities occurred behind closed doors and did not know if accurate data could be obtained on the number of illicit activities that occurred. Council Member Espinosa asked if full cost recovery was the goal of the price point. Mr. Cullen said cost recovery probably did not cover Staff’s time spent in the implementation and moving forward on permitting. Council Member Espinosa asked Staff what the timeline would be to carve out the Reflexology portion and to come back to the Committee to address the issue. Ms. Wagner said it could take a few months. There were establishments that referred to themselves as Reflexology and performed other services. She did not think it would be necessary to develop an Ordinance solely for Reflexology. She said a definition could be added to the Ordinance to exempt Reflexology. Council Member Espinosa said the speakers touched on issues the Police Department felt that needed stricter regulations such as the method used to wash down equipment, separate faucets to accommodate hot and cold running water, terminology issues, and implementation dates. He asked if Staff could respond to these issues, was Staff in disagreement, or if further discussions needed to occur. Ms. Wagner said the intent was to apply regulations governed by state laws for municipalities to enforce health and safety rules that applied to massage businesses. She said the terminology issues could be revisited to see if a 1.c Packet Pg. 32 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 12 better term could be used to define “technicians”, “practitioners” and therapists”. Mr. Larkin stated that Staff attempted to answer many of the questions during individual meetings with the practitioners and Staff would revisit comments that were overlooked. Council Member Schmid said Reflexology was an alternative type of practice and had a separate form of certification process. He felt that the Happy Feet Foot Spa was not Reflexology or the standard therapy and appeared to be innocuous. He said there was a spectrum of activities that seemed outside the boundaries that was focused on in reviewing the definitions. He suggested looking at how neighboring jurisdictions dealt with their ordinances, not just in a general sense, but what were the differences and how they might apply to what the City was dealing with. Ms. Wagner said they had reviewed other city ordinances and found there were different distinctions. She disagreed with the statement that the situation of having clothes on in an open room was different from clothes off in a closed room. She felt because there was a layer of clothing between the person’s hands and the body they were working on that through pressure and manipulation did not mean a criminal act could not occur. Happy Feet Foot Spa practiced Reflexology but the major portion of their service was full body massage. She understood why people appreciated the low-cost massage option. The intent of the Police Department was not to put anyone out of business. The Happy Feet Foot Spa proprietors were offered solutions to comply with the proposed Ordinance and time for their employees to get proper training. Mr. Bertelsen’s response was that Happy Feet Foot Spa would be put out of business if the employees received the proper education and would leave for better jobs. The Police Department wanted to see the Happy Feet Foot Spa to continue their operations in Palo Alto; however, their practices met the definition of massage and would need to comply with the same rules as other massage businesses in Palo Alto. MOTION: Council Member Klein moved, seconded by Council Member Espinosa that Staff return to the Policy and Services Committee with revised language for the recommended ordinance that excludes Reflexology. Council Member Klein stated that businesses were not always regulated. Regulations came about because of abuses in one form or another. One issue that resulted from licensing was people tried to move around boundaries to have lower-cost alternatives. Society did not allow people who were not appropriately state-certified to do things that were close to what licensed people did and resulted in disagreements. He said he would 1.c Packet Pg. 33 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) 13 be willing to exempt Happy Feet Foot Spa on the same basis as a Reflexology, but if their practice fitted the definition of massage they would need to comply with the same rules. He asked if Reflexology should have a licensing procedure. Mr. Larkin agreed. Council Member Espinosa said he agreed with Council Member Klein’s comments, but not for all the same reasons. He was in agreement of moving the item forward but did not agree that the City needed broad regulations around the field of massage. He felt that when the item was brought back to the full Council there would be Council Members that will raise the question of what was the problem that Staff was trying to resolve, why the proposed revision was needed, and how the Ordinance would solve those problems. He supported the Motion. Council Member Schmid suggested having a clear statement that identified the problem and how the regulations would deal with the problem. He said it would be helpful for Staff to return with more information regarding the ordinances in other cities. The City could do a comparison to what other municipalities were doing in regards to their ordinances. Ms. Tucker said in moving forward it might be helpful for Staff to come back with information regarding historical investigations and arrests around this type of behavior both locally as well as surrounding jurisdictions. The information provided would be done on general information and not individual cases. MOTION PASSED 3-0, Holman Absent 1.c Packet Pg. 34 -: A t t a c h m e n t C - F e b r u a r y P & S - M a s s a g e O r d i n a n c e M i n u t e s - E X C E R P T ( 2 7 0 8 : M a s s a g e O r d i n a n c e F o l l o w - u p ) FILENAME 1 POLICY AND SERVICES COMMITTEE Draft Action Minutes Regular Meeting April 10, 2011 1. Review and Recommend Council Approval of Proposed Updated Massage Ordinance. MOTION: Council Member Klien moved, seconded by Council Member Espinosa, that the Policy and Services Committee refer the Massage Ordinance back to Staff to revise a) eliminate records requirement, b) include exemption for non-certified massage practicioners, and c) review the remaining language to draft as light of an ordinance as possible. MOTION PASSED 4-0. 2. Discussion and Recommendation of Council Priority Setting Process MOTION: Council Member Klein moved, seconded by Council Member Schmid to place a context statement prior to the definition of a priority, to define a priority as an issue or topic which will receive particular, unusual, and significant attention during the year. The only items to be considered for priorities shall be those proposed in writing by Staff a week prior to the annual Council Retreat, or by one Council Member in time for inclusion in the packet for the annual Council Retreat. To have a three year time limit on priorities. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER the Policy and Services Committee will be the focus of establishing the process of integrating input from all Council Members on an equal basis and will start the process three months before the January sesison AMENDMENT TO MOTION: Council Member Espinosa moved, seconded by Chair Holman to include a goal of no more than three priorities in a year. FILENAME 2 AMENDMENT PASSED: 3-1, Klein no MOTION RESTATED: Council Member Klein moved, seconded by Council Member Schmid to place a context statement prior to the definition of a priority, to define a priority as an issue or topic which will receive particular, unusual, and significant attention during the year. There should be no more than three priorities in a year. The Policy and Services Committee would be the focus of establishing the process of integrating input from all Council Members on an equal basis and will start the process three months before the January Retreat. There will be a fixed list of topics to consider at the Retreat. There will be a goal of no more than three priorities per year. To have a three year time limit on priorities. Staff will prepare this proceedure and return to the Committee prior to returning to the Council. MOTION AS AMENDED PASSED: 4-0 3. Discussion on Policy and Services Committee Workplan Prioritization and Process for Handling New Business No Action ADJOURNMENT: Meeting adjourned at 9:43 p.m.       Policy and Services Committee   DRAFT EXCERPT    Page 1 of 3  Special Meeting June 12, 2012 Review and Recommend Approval of Massage Ordinance April Wagner, Police Lieutenant informed the Policy & Services Committee (Committee) their recommended changes to the Ordinance 1) eliminated the logbook requirement for establishments, 2) added the therapist classification of non-certified therapist (exempt from the education requirement), and 3) added the establishment classification of non-certified establishment (exempts employees of establishment from education requirement) had been made and Staff included lesser restrictions to the Ordinance. David Bertelsen appreciated the Committee recognizing the massage business models being different from other models. He suggested the modification of the fee structure for various reasons; he felt their particular establishment did not charge as high of a fee for the same services as other massage establishments; his staff was paid $10 on a per client basis plus any gratuity. He was asking the fee schedule to be equitable for the business conducted and not based on the type of business. Palo Alto Free Press spoke of Senate Bill 731 and believed it was an intrusion on small businesses because it belonged under the jurisdiction of the Health Department and not that of the Police Department. Babs Mitchel said in 2011 representatives from the massage community met with the Police Department and the City Attorney’s office to discuss suggested changes to the Ordinance. She did not have a clear understanding of Definition 4.54.020 item number 4 and she had concerns with Definition 4.54.030. Ms. Wagner noted the updated Ordinance the Committee Members received at their places before the meeting contained 2 corrections 1) CMTC meant all of the persons at the establishment had state certification and 2) the owners were not required to be certified. Council Member Espinosa said his understanding was Staff had made the recommended changes but there was an area where the Committee could make additional changes either with education levels, decreasing or DRAFT MINUTES     Page 2 of 3  Policy & Services Committee Special Meeting  Draft Excerpt 6/12/12  eliminating the liability insurance, and the non-certified for clothed massage in an open area. He believed the exemption itself addressed the non- certified clothed massage in an open area. Ms. Wagner said if the City wanted to establish CMTC level establishments it would eliminate the need for oversight of the massage therapists because the CMTC had their own regulation board. If that option was chosen by the Committee they could add the special exemption for non-certified therapists. Don Larkin, Assistant City Attorney noted the draft Ordinance included the exemption for the non-certified therapists where the massage was performed in an open room with a fully clothed client. Council Member Espinosa asked what the compelling reasons for elimination or reduction of liability insurance would be. Ms. Wagner noted the education level for certification was an increase of 100 hours. Staff’s view of the process was to gauge industry standards and see what was recommended, required, and reasonable. Palo Alto had a low requirement where the CMTC required a certification of 250 or 500 hours. Staff felt to equalize all areas their suggestion was to raise the required level of education to 200 hours. Liability insurance was an industry standard for protection of the clients and therapists. She explained if the Council chose not to implement that as a restriction it would be acceptable. Chair Holman pointed out there was a typographical error on under Definition 4.454.020 item number 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 or carried on massages, baths or health treatments involving massage or baths, where massage is part of primary function of the business, the comma after any in the seconded line should be removed. MOTION: Council Member Klein moved, seconded by Council Member Schmid that the Policy and Services Committee recommend to the City Council approval of the Massage Ordinance as recommended by Staff with the typographical changes corrected as indicated. Council Member Klein felt Staff had accomplished the desired regulations requested by the Committee and it was ready to go before the full Council. DRAFT MINUTES     Page 3 of 3  Policy & Services Committee Special Meeting  Draft Excerpt 6/12/12  Council Member Espinosa agreed the regulations being recommended were beneficial for the patrons and the therapists and he believed if there was an issue to arise at a later date there would be no disputes returning to make adjustments to the regulations to correct the matter. The safety of the citizens was paramount. Council Member Schmid appreciated Staff’s responsiveness to the Committee’s recommendations. MOTION PASSED: 4-0