HomeMy WebLinkAbout2010-07-27; City Council; 20324; AMENDMENT MASSAGE TECHNICIANS TRAINEES LICENSINGCITY OF CARLSBAD - AGENDA BILL 12
AB# 20,324
MTG. 7-27-10
DEPT. CLERK
AMENDMENT OF MUNICIPAL CODE SECTIONS
RELATING TO MASSAGE TECHNICIANS AND
TRAINEES AND ADDING A SECTION RLATED TO
VOLUNTARY STATE LICENSING
DEPT. HEAD ^
CITYATTY. J~
CITY MGR.
RECOMMENDED ACTION:
Adopt Ordinance No. CS-095. amending Chapter 5.16, 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 of the Carlsbad Municipal Code 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 relating to
voluntary state licensing for massage practitioners and therapists.
ITEM EXPLANATION:
Ordinance No. CS-095 was introduced and first read at the City Council meeting held on July
13, 2010. The second reading allows the City Council to adopt the ordinance which will
become effective thirty days after adoption. The City Clerk will have the ordinance published
within fifteen days, if adopted.
FISCAL IMPACT:
See AB #20,307 on file in the Office of the City Clerk.
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.
DEPARTMENT CONTACT: Karen Kundtz 760-434-2808 Karen.Kundtz@carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
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AMENDED
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CONTINUED TO DATE SPECIFIC D
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ORDINANCE NO. CS-095
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
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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;
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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
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EXHIBIT # 1
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
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:
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SECTION 1: That the title of Chapter 5.16 of the Carlsbad Municipal Code is amended to read as follows:
Chapter 5.16 MASSAGE BUSINESSES, CERTIFICATE HOLDERS, MASSAGE TECHNICIANS AND
HOLISTIC HEALTH PRACTITIONERS*
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Prior Ordinance History: Ords. 1296, 3096, 3112, 6059, 6061, NS-216, NS-291, NS-430 and NS-560.20 * ,,,,,,,
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
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)
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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)
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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.
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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)
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5.16.105 Massage businesses operating requirements.
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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
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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)
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5.16.210 License application—Massage technician and holistic health practitioner.
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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
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;23 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
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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.
(Ord. NS-560 § 8, 2000; Ord. NS-430 § 1 (part), 1997)
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5.16.255 Massage technician and holistic health practitioner operating requirements.
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The operating requirements for certificate holders.jnassage technicians and holistic health
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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,_massage
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,_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,jnassage 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)
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3 1.08.010(b).
(Ord. NS-430 § 1 (part), 1997)
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5.16.340 Massage technician trainee license.
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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
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 September 1, 2009, no more massage technician trainee permits shall be issued.
(Ord. NS-430 § 1 (part), 1997)
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SECTION 3: That Chapter 5.16 of the Carlsbad Municipal Code is amended by renumbering Section
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3.16.360 Constitutionality to 5.16.380 Constitutionality.
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SECTION 4: That Chapter 5.16 of the Carlsbad Municipal Code is amended by adding a new Section
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5.16.360 to read as follows:
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5.16.360 Rules Applicable to Certificate Holders.
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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;
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4. Any other information the City Manager 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.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption and the City
Clerk shall certify the adoption of this ordinance and cause it to be published at least once in a newspaper of
general circulation in the City of Carlsbad within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 13th
day of July ,2010, and thereafter.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the
27th day of July , 2010, by the following vote, to with:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None •
ABSENT: None.
APPROVED AS TO FORM AND LEGALITY
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RONALD R. BALL, City Attorney *j
ATTEST:
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M. WOOD, City Clerk