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HomeMy WebLinkAbout2010-07-13; City Council; 20307; MASSAGE SERVICES ORDINANCESCITY OF CARLSBAD - AGENDA BILL 12 AB# MTG. DEPT. 20,307 7-13-10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CHAPTER 5.16 OF CARLSBAD MUNICIPAL CODE, SECTIONS 5.16.010, 5.16.020, 5.16.100, 5.16.105, 5.16.210, 5.16.255, 5.16.310, AND 5.16.340, RELATING TO MASSAGE ESTABLISHMENTS, MASSAGE TECHNICIANS AND MASSAGE TECHNICIAN TRAINEES, RENUMBERING SECTION 5.16.360 TO 5.16.380 AND ADDING A NEW SECTION 5.16.360 RELATED TO A VOLUNTARY STATE LICENSING SCHEME DEPT. HEAD CITY ATTY.(| CITY MGR. RECOMMENDED ACTION: Introduce Ordinance No.CS-095 _ of the City Council of the City Of Carlsbad, California, amending Chapter 5.16 of the Carlsbad Municipal Code Sections 5.16.010, 5.16.020, 5.16.100, 5.16.105, 5.16.210, 5.16.255, 5.16.310, and 5.16.340 relating to Massage Establishments, Massage Technicians, and Massage Technician Trainees, renumbering Section 5.16.360 to 5.16.380 and adding a new Section 5.16.360 to the Carlsbad Municipal Code relating to a Voluntary State Licensing Scheme for Massage Practitioners and Therapists. ITEM EXPLANATION: The California Legislature enacted Senate Bill 731 in the 2007-2008 term which created a Voluntary State-wide Licensing Scheme for Massage Practitioners and Therapists. These new rules are codified in Business & Professions Code section 4600 et seq. and exempt those who obtain certificates from the state from certain local regulations of the massage practice. These new laws require amendments to the Carlsbad Municipal Code to ensure the Code's compliance with Senate Bill 731 and to provide clearer guidelines for how the code can be enforced. Police Department staff believes that it is necessary to maintain a strict regulatory regime to ensure the health and safety of those performing and receiving massage services in the City of Carlsbad. Further, as part of this comprehensive regulatory scheme, it is necessary to continue to regulate holistic health practitioners who practice massage, because they are not subject to the new state regulations. DEPARTMENT CONTACT: Lt. Kelly Cain 760-931-2166 kellv.cain@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED X D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D D D D FISCAL IMPACT: No direct fiscal impact is anticipated as the result of this action. Current licensing fee is based on the cost of providing the service. Therefore, this action should be cost neutral. ENVIRONMENTAL IMPACT: Pursuant to Public Resources Code section 21065 and CEQA Guidelines section 15738, this action does not constitute a "project" within the meaning of CEQA and therefore, does not require additional environmental review. EXHIBITS: 1. Ordinance No. CS-095 of the City Council of the City of Carlsbad, California, amending Chapter 5.16 of the Carlsbad Municipal Code, Sections 5.16.010, 5.16.020, 5.16.100, 5.16.105, 5.16.210, 5.16.255, 5.16.310, and 5.16.340 relating to Massage Establishments, Massage Technicians, and Massage Technician Trainees, renumbering Section 5.16.360 to 5.16.380 and adding a new Section 5.16.360 to the Carlsbad Municipal Code relating to a Voluntary State Licensing Scheme for Massage Practitioners and Therapists. 2. Chapter 5.16 addition/strikeout. 1 2 3 4 5 6 7 8 10 WHEREAS, these new laws require amendments to the Carlsbad Municipal Code to ensure the Code's compliance with Senate Bill 731 and to provide clearer guidelines for how the code can be enforced; 15 18 25 26 27 EXHIBIT # 1 ORDINANCE NO. CS-095 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CARLSBAD MUNICIPAL CODE SECTIONS 5.16.010, 5.16.020, 5.16.100, 5.16.105, 5.16.210, 5.16.255, 5.16.310, AND 5.16.340 RELATING TO MASSAGE ESTABLISHMENTS, MASSAGE TECHNICIANS, AND MASSAGE TECHNICIAN TRAINEES, RENUMBERING SECTION 5.16.360 TO 5.16.380, AND ADDING A NEW SECTION 5.16.360 TO THE CARLSBAD MUNICIPAL CODE RELATING TO A VOLUNTARY STATE LICENSING SCHEME FOR MASSAGE PRACTITIONERS AND THERAPISTS WHEREAS, the Legislature has enacted Senate Bill 731 in the 2007-2008 term, creating a y state licensing scheme for massage practitioners and therapists; and WHEREAS, these new rules, codified in Business & Professions Code section 4600 et. seq., exempt those who obtain certificates from the state from certain local regulations of massage practice; and 12 WHEREAS, the City Council for the City of Carlsbad believes that it is necessary to maintain a 13 strict regulatory regime to ensure the health and safety of those performing and receiving massage services in the city of Carlsbad; and 14 WHEREAS, as part of this comprehensive regulatory scheme, it is necessary to continue to regulate holistic health practitioners who practice massage, because they are not subject to state regulation; and THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows: 16 SECTION 1: That the title of Chapter 5.16 of the Carlsbad Municipal Code is amended to read as follows: 17 Chapter 5.16 MASSAGE BUSINESSES, CERTIFICATE HOLDERS, MASSAGE TECHNICIANS AND HOLISTIC HEALTH PRACTITIONERS* 19 * Prior Ordinance History: Ords. 1296, 3096, 3112, 6059, 6061, NS-216, NS-291, NS-430 and NS-560. SECTION 2: That the following sections of Chapter 5.16 of the Carlsbad Municipal Code are amended to read as follows: 22 5.16.010 Purpose and intent. 23 It is the purpose and intent of this chapter to provide for the orderly regulation of the massage 24 business in the city by the adoption of a licensing procedure for massage businesses, holistic health practitioners, and massage technicians. It is determined to be necessary to further preserve and protect the health, safety and welfare of the inhabitants of this city through the enactment of standards of sanitation, professional competence, fire safety and building construction in regard to massage businesses, holistic health practitioners, and massage technicians. The business of massage is designated police regulated. The ordinances codified in this chapter are adopted pursuant to Chapter 6, Part 1, of Division 1 of Title 5 (Sections 51030 through 51034) of the California Government Code and other applicable laws. (Ord. NS-430 § 1 (part), 1997) 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 23 24 25 26 27 EXHIBIT # 1 5.16.020 Definitions. For the purpose of this chapter, the following words and phrases shall have the meanings ascribed to them in this section: A. "Massage" means the administration by any person of any method or procedure of exerting or applying pressure, friction, moisture, heat or cold to the external parts of the human body by any physical or mechanical means, excepting such rubbing, stroking, kneading, pounding or tapping of the human body by any physical or mechanical means and with or without the use of any ointments, liniments, oils, alcohols, or other substances as may be prohibited by state law. Massage includes practices by holistic health practitioner or other similar professions or avocations that otherwise meet this definition. B. "Massage business" means any business or operation wherein a massage is administered or permitted to be administered either separately or in conjunction with the business of giving any Turkish, Russian, Swedish, vapor, sweat, electric, salt, shower, sponge or any other kind or character of baths. A business of a holistic health provider or any other similar professional who includes massage as part of his or her practice is a massage business. C. "Massage technician" means any person who has obtained a massage technician's license pursuant to this chapter. D. "Health officer" means the health officer of the county or his authorized representative. E. "Holistic health practitioner" means any person who has obtained a holistic health practitioner's license pursuant to this chapter. F. "Off-premises massage" means the activity of providing massage services at a location other than the premises designated in the license of a massage business pursuant to this chapter. G. "Recognized school" means any school or institution of learning which has for its purpose the teaching of a course consisting of the theory, ethics and practice, methods, profession or work of massage in not less than three calendar months, and which school or institution of learning requires a resident massage technician or holistic health practitioner be furnished with a diploma or certificate of graduation from such school or institution of learning showing successful completion of such course of study already approved by the California State Department of Education or other comparable agency in another state. Schools offering correspondence courses not requiring actual attendance at class shall not be deemed a recognized school. H. "Specified anatomical areas" means human genitals, pubic region, anus, perineum or female breasts below a point immediately above the top of the areola. I. "License" means a license obtained from the chief of police pursuant to the provisions of this chapter. J. "Certificate holder" means a person certified pursuant to Business & Professions Code section 4600, et seq., or a business establishment where only people certified pursuant to Section 4600 et seq. practice massage. (Ord. NS-560 § 1, 2000; Ord. NS-430 § 1 (part), 1997) 20 21 5.16.100 Massage business facilities. 22 No license to conduct a massage business shall be granted and no massage business shall practice massage unless an inspection by the city reveals that the proposed business premises comply with each of the following minimum requirements: A. A recognizable and legible sign shall be posted at the main entrance identifying the premises as a massage business. B. Minimum lighting shall be provided in accordance with the building code of the city and, in addition, at least one artificial light of not less than sixty watts shall be provided in each room or enclosure where massage services are performed on patrons. This subsection does not apply to certificate holders. C. Minimum ventilation shall be provided in accordance with the building code of the city. However, nothing in this subsection shall require certificate holder to maintain standards that are not uniformly applicable to other professionals or personal services. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 23 24 27 EXHIBIT # 1 D. Recognizable and legible signs shall be posted at all exits identifying each such exit in accordance with the fire code of the city. E. Hot and cold running water shall be provided to a metal or ceramic coated metal utility sink approved by the San Diego County health department, except that certificate holders need not provide any additional facilities that are not uniformly applicable to those required by applicable law for other professional or personal services. F. Equipment approved by the health department for disinfecting and sterilizing instruments used in performing acts of massage shall be provided. G. Closed cabinets shall be provided and utilized for the storage of clean linen, except that certificate holders need not provide any additional facilities that are not uniformly applicable to those required by applicable law for other professional or personal services. H. Adequate bathing, dressing, locker and toilet facilities shall be provided for patrons. A minimum of one tub or shower, one dressing room containing a separate locker for each patron to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage business; provided, however, that if male and female patrons are to be served simultaneously at the business, a separate massage room or rooms, separate dressing facilities and separate toilet facilities shall be provided for male and female patrons; further, in those businesses where steamrooms or sauna baths are provided, if male and female patrons are to be served simultaneously, separate steamrooms or sauna rooms shall be provided for male and female patrons. However, nothing in this subsection shall require certificate holders to maintain standards that are not uniformly applicable to those required by applicable law for other professional or personal services. I. All walls, ceilings, floors, pools, showers, bathtubs, steamrooms and all other physical facilities for the business premises 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 with a disinfectant approved by the health department each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected with a disinfectant approved by the health department after each use. However, nothing in this subsection shall require certificate holders to maintain standards that are not uniformly applicable to those required by applicable law for other professional or personal services. J. Clean and sanitary towels and linens shall be provided for each patron of the business. No common use of towels or linens shall be permitted. However, nothing in this subsection shall require certificate holders to maintain standards that are not uniformly applicable to those required by applicable law for other professional or personal services. K. A minimum of one separate wash basin shall be provided in each massage business premises for the use of employees of any such business, which basin shall provide soap or detergent and hot and cold running water at all times and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided at each wash basin, sanitary towels placed in permanently installed dispensers. However, nothing in this subsection shall require certificate holders to maintain standards that are not uniformly applicable to those required by applicable law for other professional or personal services. 22 This section shall be construed to require minimum standards only, except that certificate holders need not provide any additional facilities that are not uniformly applicable to those required by applicable law for other professional or personal services. All applicable provisions of the municipal code shall have full force and effect and the applicant shall be required to comply therewith. (Ord. NS-430 § 1 (part), 1997) 25 5.16.105 Massage businesses operating requirements. 26 The operating requirements for massage businesses are as follows: A. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage business shall permit a massage to be given unless the patron's specified anatomical areas are 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 23 24 25 26 27 EXHIBIT # 1 covered by the covering provided by the business. Each business shall provide to all patrons clean, sanitary and opaque covering capable of covering the patron's specified anatomical areas. No common use of such covering shall be permitted, and reuse is prohibited unless having been adequately cleaned. B. With the exception of bathrooms, showers and dressing rooms, no owner, operator, responsible managing employee, manager or permittee in charge of or in control of any massage business shall permit any person in any area within the massage business premises which is used by the patrons or which can be viewed by patrons from such an area, unless the person's specified anatomical areas are fully covered. In addition, no owner, operator, responsible managing employees, manager or permittee in charge of or in control of a massage business shall permit any person to be in any room with another person unless all persons' specified anatomical areas are fully covered. C. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage business shall permit any employee to be on the premises of a massage business during its hours of operation of a massage business unless the employee is fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck excluding the arms, with the following exception: shorts may be worn so long as they extend down the leg a minimum of three inches from the crotch, and the body above the point is fully covered to the base of the neck, excluding the arms. The covering, which includes trousers, pants or shorts, will be of an opaque material and will be maintained in a clean and sanitary condition. D. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage business shall, during the course of any service or task associate with the operation of a massage business, permit any person to massage or intentionally touch the specified anatomical areas of another person. E. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage business shall permit persons other than a certificate holder,Jicensed massage technician, licensed massage technician trainee or licensed holistic health practitioner to perform a massage in a massage business. (Ord. NS-430§ 1 (part), 1997) 15 5.16.210 License application—Massage technician and holistic health practitioner. Except for a certificate holder, each application for a massage technician or holistic health practitioner license shall be submitted to the chief of police and shall contain the following information: A. The applicant's full name, residence address and telephone number; B. The name and address and telephone number of the massage business where the applicant is to be employed and the name of the owner of same; C. The names and addresses of any and all previous businesses where the applicant has been employed as a massage technician or holistic health practitioner; D. The criminal record, if any, other than minor traffic violations, of the applicant; E. Whether the applicant has previously had a massage business license, a massage technician or holistic health practitioner license, or a similar license denied, suspended, or revoked by any public agency and, if so, the reasons for and circumstances surrounding the denial, suspension or revocation; F. A photograph and complete set of the applicant's fingerprints which shall be taken by the chief of police or his agent; G. Written proof that the applicant is over the age of eighteen years; H. Applicant must furnish a diploma or certificate of graduation from a recognized school or other institution of learning wherein the method, profession and work of massage is taught. Proof of successful completion of two hundred hours of study from a recognized school is required for a massage technician license and proof of successful completion of one thousand hours of study from a recognized school is required for a holistic health practitioner license. The city has the right to confirm the fact that the applicant has actually attended classes in a recognized school for the aforementioned minimum time periods. In lieu of 28 1 2 3 4 5 6 7 8 9 10 (Ord. NS-560 § 8, 2000; Ord. NS-430 § 1 (part), 1997) 11 12 13 14 15 16 17 18 19 23 24 25 26 27 28 EXHIBIT # 1 the foregoing educational requirements, an applicant for a massage technician license may submit verifiable written proof that he or she has actually been engaged in practice as a massage technician for not less than one year and has passed the national certification examination for massage therapists and bodywork; I. Before a license is issued to a holistic health practitioner, the applicant must furnish proof of membership in a state or nationally recognized organization devoted to and organized for the benefit and furtherance of holistic health practitioner practices as approved by the city manager. In the event of a dispute regarding a decision of the city manager under this section, an applicant may appeal to the city council by filing an appeal with the city clerk within ten calendar days of the written notice of decision by the city manager. The fee for filing an appeal under this section shall be established by a resolution of the city council. The decision of the city council shall be final; J. Before a license is issued to a holistic health practitioner, the applicant shall deliver a policy of insurance in an amount established by resolution of the city council, from a carrier admitted and authorized to do business in California, and under which the carrier promises and undertakes to pay in full all legal liability incurred by the practitioner for damages to persons or property resulting from the practitioner's practice. K. For all new applicants after September 1, 2009, passage of a certifying examination approved by the regulatory body providing oversight to massage professionals per California Business & Professions Code sections 4600 et seq. Applicants renewing their applications without a break in licensure status from before September 1, 2009 shall demonstrate compliance with this Section. 5.16.255 Massage technician and holistic health practitioner operating requirements. The operating requirements for certificate holders,jnassage technicians and holistic health practitioners are as follows: A. No certificate holder, massage technician or holistic health practitioner, while performing any task or service associated with the business of massage, shall be present in any room with another person unless the person's specified anatomical areas are fully covered; B. No certificate holder ,=massage technician or holistic health practitioner shall be on the premises of a massage business during its hours of operation while performing or available to perform any task or service associated with the operation of a massage business, unless the certificate holder, massage technician or holistic health practitioner is fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck, excluding the arms, with the following exception: shorts may be worn so long as they extend down the leg a minimum of three inches from the crotch, and the body above that point is fully covered to the base of the neck, excluding the arms, hi addition, no certificate holder,jnassage technician or holistic health practitioner shall perform any task or service associated with the business of massage while in the presence of another person unless the certificate holder,jnassage technician or holistic health practitioner is fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck, excluding the arms, with the following exception: shorts may be worn so long as they extend down the leg a minimum of three inches from the crotch, and the body above that point is fully covered to the base of the neck, excluding the arms. For purposes of this subsection, the covering, which includes trousers, pants or shorts, will be of an opaque material and will be maintained in a clean and sanitary condition; C. No certificate holder,=massage technician or holistic health practitioner, while performing any task or service associated with the business of massage, shall massage or intentionally touch the specified anatomical areas of another person or allow another person to massage or intentionally touch the specified anatomical areas of the certificate holder, massage technician or holistic health practitioner. (Ord. NS-430 § 1 (part), 1997) 1 2 3 (Ord. NS-430 § 1 (part), 1997) 4 5 5.16.340 Massage technician trainee license. 6 The following provisions apply to a massage technician trainee license: 7 8 9 10 11 12 13 14 15 16 17 25 26 EXHIBIT # 1 5.16.310 Violations. Every person, except those who are specifically exempted by this chapter, who violates any of the provisions of this chapter, shall be guilty of an infraction or misdemeanor punishable as provided in Section 1.08.010(b). A. Any person who qualifies for a massage technician license but for the educational requirement of Section 5.16.210 may obtain a trainee license. Such person must be enrolled in a "recognized school" and submit a letter from the school showing the date the applicant was officially enrolled and the estimated date the applicant will graduate. Applicants may also provide verifiable proof that they are registered to take the national certification examination for therapeutic massage and bodywork in lieu of the educational requirement; B. Applicant shall also submit a letter signed by the owner of a massage business, or their representative, stating their willingness to employ the applicant to do massage as a massage technician trainee working under the direct supervision and control of a licensed massage technician or holistic health practitioner during the time the applicant is completing a course of study as a massage technician at a recognized school or until the applicant has successfully passed the national certification examination for therapeutic massage and bodywork; C. The massage trainee license shall expire one year from the date issued and is not renewable, except in the case of sickness or accident for which reason the education or certification exam was delayed. Applicant is expected to successfully complete the massage technician course of study or pass the national certification examination for therapeutic massage and bodywork during the one-year time period the license is valid. The trainee must at all times comply with all laws and ordinances in effect and the failure to comply may render the applicant ineligible to obtain a massage technician's license. D. After September 1, 2009, no more massage technician trainee permits shall be issued. (Ord. NS-430 § 1 (part), 1997) 18 SECTION 3: That Chapter 5.16 of the Carlsbad Municipal Code is amended by renumbering Section 19 3.16.360 Constitutionality to 5.16.380 Constitutionality. 20 SECTION 4: That Chapter 5.16 of the Carlsbad Municipal Code is amended by adding a new Section 21 5.16.360 to read as follows: 22 5.16.360 Rules Applicable to Certificate Holders. 23 The following rules apply to certificate holders: 24 A. No later than three business days before practicing massage in the City of Carlsbad, a certificate holder shall register with the City of Carlsbad. A certificate holder must re-register within five business days of submitting information to the California Massage Therapy Council or its successor to renew the certificate holder's certification. The certificate holder shall, in his or her registration form, include the following information: 1. The certificate holder's name; 2. A copy of the certificate holder's current, valid certificate;27 3. The certificate holder's business address; 28 1 2 3 4 5 6 7 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption and the City 8 Clerk shall certify the adoption of this ordinance and cause it to be published at least once in a newspaper of 9 general circulation in the City of Carlsbad within fifteen days after its adoption. 10 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the11 day of ,2010, and thereafter. 12 ~~ PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the i \3 day of , 2010, by the following vote, to with: 16 17 18 19 20 22 23 24 EXHIBIT # 1 4. Any other information the City Manager, upon consultation with the City Attorney, deems relevant, consistent with Business & Professions Code section 4600 et seq. B. Nothing in this Chapter exempts a certificate holder from an obligation to obtain a business license from the City of Carlsbad. C. Within three business days of any change in the information required by subsection A occurs, a certificate holder who practices massage in the City of Carlsbad shall notify the City Manager, or his or her designee, of this change. SECTION 5: That except as specifically modified above, the remaining sections of Chapter 5.16 of the Carlsbad Municipal Code remain in full force and effect. 15 NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attorney 21 ATTEST: CLAUDE A. LEWIS, Mayor LORRAINE M. WOOD, City Clerk25 26 27 28 23 24 25 26 27 EXHIBIT # 2 Chapter 5.16 MASSAGE BUSINESSES, CERTIFICATE HOLDERS. MASSAGE TECHNICIANS AND HOLISTIC HEALTH PRACTITIONERS* Sections: 5.16.010 Purpose and intent. 5.16.020 Definitions. 5.16.030 Massage business license required. 5.16.050 License application—Massage business. 5.16.055 Change in massage business manager. 5.16.060 Investigation fee—Massage business. 5.16.070 License investigation—Massage business. 5.16.080 Issuance or denial of license. 5.16.085 Conditional issuance of license. 5.16.090 Reapplication after denial. 5.16.100 Massage business facilities. 5.16.105 Massage businesses operating requirements. 5.16.110 Display of licenses. 5.16.120 Name of business. 5.16.130 Change of location. 5.16.140 Sale or transfer. 5.16.150 Inspection. 5.16.160 Massagist licensees to be employed. 5.16.170 Massages at permitted locations only. 5.16.180 Records of treatments. 5.16.190 Massage technician or holistic health practitioner license required. 5.16.210 License application—Massage technician and holistic health practitioner. 5.16.215 Investigation fee—Massage technician and holistic health practitioner. 5.16.220 License investigation and issuance—Massage technician and holistic health practitioner. 5.16.225 Conditional issuance of license. 5.16.230 Reapplication after denial. 5.16.240 Transfer of license. 5.16.250 Possession and posting of license. 5.16.255 Massage technician and holistic health practitioner operating requirements. 5.16.260 Suspension or revocation of license. 5.16.270 Hearing. 5.16.280 Appeal. 5.16.290 Injunctive relief. 5.16.300 Exemptions. 5.16.310 Violations. 5.16.320 Massage business license fee. 5.16.330 Massage technician and holistic health practitioner license fee. 5.16.340 Massage technician trainee license.22 5.16.350 Massage school license. 5.16.360 Constitutionality. 5.16.360 Rules Applicable to Certificate Holders 5.16.370 Interpretation. 5.16.380 Constitutionality. Prior Ordinance History: Ords. 1296, 3096, 3112, 6059, 6061. NS-216. aadNS-291. NS-430 and NS-560. 5.16.010 Purpose and intent. It is the purpose and intent of this chapter to provide for the orderly regulation of the massage business in the city by the adoption of a licensing procedure for massage businesses, holistic health 28 EXHIBIT # 2 1 practitioners, and massage technicians. It is determined to be necessary to further preserve and protect the health, safety and welfare of the inhabitants of this city through the enactment of standards of sanitation, 2 professional competence, fire safety and building construction in regard to massage businesses, holistic health practitioners, and massage technicians. The business of massage is designated police regulated. 3 It is also the purpose and intent of this chapter to comply with Senate Bill 731 enacted in the 2007- 4 5 6 7 Q For the purpose of this chapter, the following words and phrases shall have the meanings ascribed to them in this section: A. "Massage" means the administration by any person of any method or procedure of exerting or applying pressure, friction, moisture, heat or cold to the external parts of the human body by any physical or 11 12 or other similar professions or avocations that otherwise meet this definition. 13 14 15 2008 term that created a voluntary state licensing scheme for massage practitioners and therapists. The ordinances codified in this chapter are adopted pursuant to Chapter 6, Part 1, of Division 1 of Title 5 (Sections 51030 through 51034) of the California Government Code and other applicable laws. (Ord. NS-430 § 1 (part), 1997) 5.16.020 Definitions. mechanical means, excepting such rubbing, stroking, kneading, pounding or tapping of the human body by any physical or mechanical means and with or without the use of any ointments, liniments, oils, alcohols, or other substances as may be prohibited by state law. Massage includes practices by holistic health practitioner B. "Massage business" means any business or operation wherein a massage is administered or permitted to be administered either separately or in conjunction with the business of giving any Turkish, Russian, Swedish, vapor, sweat, electric, salt, shower, sponge or any other kind or character of baths. A business of a holistic health provider or anv other similar professional who includes massage as part of his or her practice 16 17 18 19 20 23 24 is a massage business. C. "Massage technician" means any person who has obtained a massage technician's license pursuant to this chapter. D. "Health officer" means the health officer of the county or his authorized representative. E. "Holistic health practitioner" means any person who has obtained a holistic health practitioner's license pursuant to this chapter. F. "Off-premises massage" means the activity of providing massage services at a location other than the premises designated in the license of a massage business pursuant to this chapter. G. "Recognized school" means any school or institution of learning which has for its purpose the teaching of a course consisting of the theory, ethics and practice, methods, profession or work of massage in not less than three calendar months, and which school or institution of learning requires a resident massage technician or holistic health practitioner be furnished with a diploma or certificate of graduation from such school or institution of learning showing successful completion of such course of study already approved by the California State Department of Education or other comparable agency in another state. Schools offering correspondence courses not requiring actual attendance at class shall not be deemed a recognized school. H. "Specified anatomical areas" means human genitals, pubic region, anus, perineum or female breasts below a point immediately above the top of the areola. I. "License" means a license obtained from the chief of police pursuant to the provisions of this chapter. J. "Certificate holder" means a person certified pursuant to Business & Professions Code section 4600. et sea., or a business establishment where only people certified pursuant to Section 4600 et sea, practice 25 (Ord. NS-560 § 1, 2000; Ord. NS-430 § 1 (part), 1997) 26 27 28 1 2 3 4 5 6 7 D. Recognizable and legible signs shall be posted at all exits identifying each such exit in accordance with the fire code of the cityt. E. Hot and cold running water shall be provided to a metal or ceramic coated metal utility sink approved by the San Diego County health department-;, except that certificate holders need not provide any additional facilities that are not uniformly applicable to those required bv applicable law for other professional or EXHIBIT # 2 5.16.100 Massage business facilities. No license to conduct a massage business shall be granted and no massage business shall practice massage unless an inspection by the city reveals that the proposed business premises comply with each of the following minimum requirements: A. A recognizable and legible sign shall be posted at the main entrance identifying the premises as a massage business-, B. Minimum lighting shall be provided in accordance with the building code of the city and, in addition, at least one artificial light of not less than sixty watts shall be provided in each room or enclosure where massage services are performed on patrons. This subsection does not apply to certificate C. Minimum ventilation shall be provided in accordance with the building code of the city. However, nothing in this subsection shall require certificate holder to maintain standards that are not uniformly applicable to other professionals or personal services.-: personal services. F. Equipment approved by the health department for disinfecting and sterilizing instruments used in performing acts of massage shall be provided^ G. Closed cabinets shall be provided and utilized for the storage of clean linem. except that certificate holders need not provide anv additional facilities that are not uniformly applicable to those required bv applicable law for other professional or personal services. 11 12 13 14 15 16 17 18 19 20 thoroughly cleaned and disinfected with a disinfectant approved by the health department each day the 21 by the health department after each use-r. However, nothing in this subsection shall require certificate holders H. Adequate bathing, dressing, locker and toilet facilities shall be provided for patrons. A minimum of one tub or shower, one dressing room containing a separate locker for each patron to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage business; provided, however, that if male and female patrons are to be served simultaneously at the business, a separate massage room or rooms, separate dressing facilities and separate toilet facilities shall be provided for male and female patrons; further, in those businesses where steamrooms or sauna baths are provided, if male and female patrons are to be served simultaneously, separate steamrooms or sauna rooms shall be provided for male and female patronsf. However, nothing in this subsection shall require certificate holders to maintain standards that are not uniformly applicable to those required bv applicable law for other 23 24 25 26 27 28 professional or personal services. I, All walls, ceilings, floors, pools, showers, bathtubs, steamrooms and all other physical facilities for the business premises 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 with a disinfectant approved by the health department each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected with a disinfectant approved by the health department after each use-?. However, nothing in this subsection shall require certificate to maintain standards that are not uniformly applicable to those required by applicable law for other22professional or personal services. J. Clean and sanitary towels and linens shall be provided for each patron of the business. No common use of towels or linens shall be permitted-?. However, nothing in this subsection shall require certificate holders to maintain standards that are not uniformly applicable to those required bv applicable law for other professional or personal services. K. A minimum of one separate wash basin shall be provided in each massage business premises for the use of employees of any such business, which basin shall provide soap or detergent and hot and cold running water at all times and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided at each wash basin, sanitary towels placed in permanently installed dispensers. However, nothing in this subsection shall require certificate holders to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 24 25 26 27 28 EXHIBIT # 2 maintain standards that are not uniformly applicable to those required bv applicable law for other professional or personal services. This section shall be construed to require minimum standards only, except that certificate holders provide any additional facilities that are not uniformly applicable to those required bv applicable law for other professional or personal services. All applicable provisions of the municipal code shall have full force and effect and the applicant shall be required to comply therewith. (Ord. NS-430 § 1 (part), 1997) 5.16.105 Massage businesses operating requirements. The operating requirements for massage businesses are as follows: A. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage business shall permit a massage to be given unless the patron's specified anatomical areas are covered by the covering provided by the business. Each business shall provide to all patrons clean, sanitary and opaque covering capable of covering the patron's specified anatomical areas. No common use of such covering shall be permitted, and reuse is prohibited unless having been adequately cleaned. B. With the exception of bathrooms, showers and dressing rooms, no owner, operator, responsible managing employee, manager or permittee in charge of or in control of any massage business shall permit any person in any area within the massage business premises which is used by the patrons or which can be viewed by patrons from such an area, unless the person's specified anatomical areas are fully covered. In addition, no owner, operator, responsible managing employees, manager or permittee in charge of or in control of a massage business shall permit any person to be in any room with another person unless all persons' specified anatomical areas are fully covered. C. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage business shall permit any employee to be on the premises of a massage business during its hours of operation of a massage business unless the employee is fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck excluding the arms, with the following exception: shorts may be worn so long as they extend down the leg a minimum of three inches from the crotch, and the body above the point is fully covered to the base of the neck, excluding the arms. The covering, which includes trousers, pants or shorts, will be of an opaque material and will be maintained in a clean and sanitary condition. D. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage business shall, during the course of any service or task associate with the operation of a massage business, permit any person to massage or intentionally touch the specified anatomical areas of another person. 19 E. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage business shall permit persons other than a certificate holder, licensed massage technician, licensed massage technician trainee or licensed holistic health practitioner to perform a massage in a massage business. 21 (Ord. NS-430 § 1 (part), 1997) 22 5.16.210 License application—Massage technician and holistic health practitioner. 23 Except for a certificate holder, eEach application for a massage technician or holistic health practitioner license shall be submitted to the chief of police and shall contain the following information: A. The applicant's full name, residence address and telephone number; B. The name and address and telephone number of the massage business where the applicant is to be employed and the name of the owner of same; C. The names and addresses of any and all previous businesses where the applicant has been employed as a massage technician or holistic health practitioner; D. The criminal record, if any, other than minor traffic violations, of the applicant; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 EXHIBIT # 2 E. Whether the applicant has previously had a massage business license, a massage technician or holistic health practitioner license, or a similar license denied, suspended, or revoked by any public agency and, if so, the reasons for and circumstances surrounding the denial, suspension or revocation; F. A photograph and complete set of the applicant's fingerprints which shall be taken by the chief of police or his agent; G. Written proof that the applicant is over the age of eighteen years; Hr A certificate signed by a medical doctor stating that the applicant, within thirty days immediately prior to filing his or her application herein, has been examined and found to be free of syphilis, tuberculosis or- other contagious or communicable disease which is likely to be communicated during the administration of a massage; IH. Applicant must furnish a diploma or certificate of graduation from a recognized school or other institution of learning wherein the method, profession and work of massage is taught. Proof of successful completion of two hundred hours of study from a recognized school is required for a massage technician license and proof of successful completion of one thousand hours of study from a recognized school is required for a holistic health practitioner license. The city has the right to confirm the fact that the applicant has actually attended classes in a recognized school for the aforementioned minimum time periods. In lieu of the foregoing educational requirements, an applicant for a massage technician license may submit verifiable written proof that he or she has actually been engaged in practice as a massage technician for not less than one year and has passed the national certification examination for massage therapists and bodywork; fl. Before a license is issued to a holistic health practitioner, the applicant must furnish proof of membership in a state or nationally recognized organization devoted to and organized for the benefit and furtherance of holistic health practitioner practices as approved by the city manager, hi the event of a dispute regarding a decision of the city manager under this section, an applicant may appeal to the city council by filing an appeal with the city clerk within ten calendar days of the written notice of decision by the city manager. The fee for filing an appeal under this section shall be established by a resolution of the city council. The decision of the city council shall be final; KJ. Before a license is issued to a holistic health practitioner, the applicant shall deliver a policy of insurance in an amount established by resolution of the city council, from a carrier admitted and authorized to do business in California, and under which the carrier promises and undertakes to pay in full all legal liability incurred by the practitioner for damages to persons or property resulting from the practitioner's practice. K. For all new applicants after September 1. 2009. passage of a certifying examination approved bv the regulatory body providing oversight to massage professionals per California Business & Professions Code sections 4600 et sea. Applicants renewing their applications without a break in licensure status from before 23 24 25 26 27 September 1. 2009 shall demonstrate compliance with this Section. (Ord. NS-560 § 8, 2000; Ord. NS-430 § 1 (part), 1997) 20 5.16.255 Massage technician and holistic health practitioner operating requirements. 21 The operating requirements for certificate holders^massage technicians and holistic health practitioners are as follows: A. No certificate holder, massage technician or holistic health practitioner, while performing any task or service associated with the business of massage, shall be present in any room with another person unless the person's specified anatomical areas are fully covered; B. No certificate holder, massage technician or holistic health practitioner shall be on the premises of a massage business during its hours of operation while performing or available to perform any task or service associated with the operation of a massage business, unless the gertificate holder, massage technician or holistic health practitioner is fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck, excluding the arms, with the following exception: shorts may be worn so long as they extend down the leg a minimum of three inches from the crotch, and the body above that point is fully covered to the base of the neck, excluding the arms, hi addition, no certificate holder, massage technician or holistic health practitioner shall perform any task or service associated with the business of 28 23 24 25 26 27 28 EXHIBIT # 2 massage while in the presence of another person unless the certificate holder, massage technician or holistic health practitioner is fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck, excluding the arms, with the following exception: shorts may be worn so long as they extend down the leg a minimum of three inches from the crotch, and the body above that point is fully covered to the base of the neck, excluding the arms. For purposes of this subsection, the covering, which includes trousers, pants or shorts, will be of an opaque material and will be maintained in a clean and sanitary condition; C. No certificate holder, massage technician or holistic health practitioner, while performing any task or service associated with the business of massage, shall massage or intentionally touch the specified anatomical areas of another person or allow another person to massage or intentionally touch the specified anatomical areas of the certificate holder, massage technician or holistic health practitioner. (Ord. NS-430 § 1 (part), 1997) 5.16.310 Violations. EvervAav person, except those who are specifically exempted bv this chapter, who violates any of the provisions of this chapter, shall be upon conviction is guilty of an infraction or misdemeanor punishable as provided in Section 1.08.010£bJ. (Ord. NS-430 § 1 (part), 1997) 5.16.340 Massage technician trainee license. The following provisions apply to a massage technician trainee license: A. Any person who qualifies for a massage technician license but for the educational requirement of Section 5.16.210 may obtain a trainee license. Such person must be enrolled in a "recognized school" and submit a letter from the school showing the date the applicant was officially enrolled and the estimated date the applicant will graduate. Applicants may also provide verifiable proof that they are registered to take the national certification examination for therapeutic massage and bodywork in lieu of the educational requirement; B. Applicant shall also submit a letter signed by the owner of a massage business, or their representative, stating their willingness to employ the applicant to do massage as a massage technician trainee working under the direct supervision and control of a licensed massage technician or holistic health practitioner during the time the applicant is completing a course of study as a massage technician at a recognized school or until the applicant has successfully passed the national certification examination for therapeutic massage and bodywork; C. The massage trainee license shall expire one year from the date issued and is not renewable, except in the case of sickness or accident for which reason the education or certification exam was delayed. Applicant is expected to successfully complete the massage technician course of study or pass the national certification examination for therapeutic massage and bodywork during the one-year time period the license is valid. The trainee must at all times comply with all laws and ordinances in effect and the failure to comply may render the applicant ineligible to obtain a massage technician's license. D. After Seotember 1. 2009. no more massaee technician trainee permits shall be issued. 11 12 13 14 15 16 17 18 19 20 (Ord. NS-430 § 1 (part), 1997) 5.16.360 Constitutionality. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The council declares that it have adopted the chapter and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. (Ord. NS 130§ 1 (part), 1997) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT # 2 5.16.360 Rules Applicable to Certificate Holders Certificate holders shall: A. No later than three business davs before practicing massage in the Citv of Carlsbad, a certificate holder shall register with the City of Carlsbad. A certificate holder must re-register within five business davsj]i£ submitting information to the California Massage Therapy Council or its successor to renew the certificate holder's certification. The certificate holder shall, in his or her registration form, include the following^ information: 1. The certificate holder's name; 2. A copy of the certificate holder's current, valid certificate: 3. The certificate holder's business address; 4. Anv other information the Citv Manager, upon consultation with the Citv Attorney, deems relevant. consistent with Business & Professions Code section 4600 et seq. B. Nothine in this Chanter exemots a certificate holder from an obligation to obtain a business license from the Citv of Carlsbad. C. Within three business davs of anv change in the information required bv subsection A occurs, a certificate holder who practices massage in the Citv of Carlsbad shall notify the City Manager, or his or her designee, of this change. D. The following sections of this chapter shall not apply to certificate holders: 5.16.180; 5.16.190; 5.16.200 subsections A through J: 5.16.215: 5.16.220: 5.16.225: 5.16.230: 5.16.270: 5.16.280: and 5.16.370. 5.16.380 Constitutionality. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The council declares that it would have adopted the chapter and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anv one or more sections, subsections, sentences, clauses or phrases be declared invalid.