27. Ordinance No. 09-2046 Massage EstablishmentsOFFICE OF ADMINI;iTRATIVE SERVICES
CUPERTINO
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408} ; 77-3220 • FAX: (408) 777-3366
Summary
Agenda Item ~~
SUBJECT AND IS5UE:
Agenda Date: July 7, 2 009
Conduct the first reading of Ordinance No. 09- :1'~y~ : "An Ordinance of the City Council of the City
Of Cupertino amending Chapter 9.06 of the Cupertino Municipal Code relating to massage
establishments and services by replacing it in its entirety."
BACKGROUND:
The Cupertino Municipal Code has contained regulations concerning massage establishments and
services for some time. In 2008 Governor Sch`~varzenegger signed into Iaw SB 731, which added
provisions to the California Business and Profe;ssions Code {commencing with section 4600), to
create a statewide Massage Therapy Organization {MTO} and to provide for the voluntary
certification of massage therapists and massage practitioners. T_ his law becomes effective
September 1, 2009.
The new law requires applicants to meet certai~:~ age, educational and professional criteria and to
undergo a criminal history background check as a prerequisite to certification. The law allows the
organization to take disciplinary action against t:he certificate holder if he or she is arrested for and
charged with certain sexually related crimes or drug offenses. Most importantly for the City, the
law prohibits the City from requiring certificate Holders and their employers to obtain a local license
to practice massage therapy, although some local regulation is still allowed in the areas of physical
facility and building code requirements, public health and safety, attire and personal hygiene.
A local ordinance regulating massage activitiy is still necessary for several reasons. First,
certification under the new state provisions is voluntary, not mandatory. Second, the State law has
a January 1, 2016 sunset date unless extended. Third, the City has an interest in regulating the
aspects of massage therapy left to local regulai:ion by the State. As a result, the City's current
municipal code provisions are being updated to recognize the provisions of SB 731 and exempt
those massage therapists and massage practitioners who obtain statewide certification, but to
continue to apply pre-existing Cupertino requirements where necessary and appropriate to regulate
those who do not obtain the voluntary statewide certification and to control aspects of the operation
of massage establishments.
2~-~
In 2005, the City Council directed that changes be made to the massage ordinance and internal
procedures to enhance communication during the permit processing and recognize different
modalities related to massage. The massage therapist applicant may now obtain translation services
in many languages and can obtain a different translator if the test needs to be retaken. The
ordinance provides that applicants who have taken and passed the National Certification
Commission for Acupuncture and Oriental Medicine test module related to Asian Bodywork
Therapy are exempted from the Massage Therapist Practical Exam. These changes are continued in
the ordinance for the Cupertino issued massage therapist permit. If desired, the Council may direct
staff to send a letter to the statewide Massage Therapy Organization (MTO} requesting that their
testing and certification procedures provide applicants with fairness and options in obtaining the
permit and suggest consideration of the pertinent internal procedures and ordinance provisions in
place in Cupertino.
FISCAL IMPACT: None.
STAFF RECOMMENDATION:
Conduct the first reading of Ordinance No. 09-.z04b : "An Ordinance of the City Council of the City
Of Cupertino amending Chapter 9.06 of the Cupertina Municipal Code relating to massa e
establishments and services by replacing it in its entirety."
Submitted by:
7
Gary Kornahrens
Code Enforcement Officer
Approved for submission:
David W. Knapp
City Manager
Attachments=.A: Redline version of massage ordinance
Attachment B: Clean version of draft massage Ordinance No. 09-2046
27-2
ATTACHMENT A
Cupertino Municipal Code
CHAPTER 9.06: MASSAGE ESTABLISHMENTS AND SERVICES
9.06.010 Purpose of Provisions.
A. It is the purpose and intent of this chapter to provide for the orderly regulation of
massage therapists and massage establishments as defined in this chapter in the interest of
public health, safety and welfare by providing certain minimum qualifications for the
operators of massage establishments and massage therapists. It also is the purpose of this
chapter to re:coenize the voluntary statewide certification of massaee therapists and
massage practitioners by the Massage Therapy Organization MTO .This chapter is
adopted based on the following Endings:
I. That the City has recognized the field of massage therapy as a viable professional
field;
2. That the City wants to recognize and respect professional massage therapy
organizations and quatified professionals who operate consistent with theproyisions of
Chanter 10.5 (commencing with Section 4600~of Division 2 ~afthe California Business
and Professions Code;
3. The City also fords that the rules and regulations as cleveloped in this chapter
strive for equality of all massage organizations and therapists while attempting to prevent
serious objectionable characteristics which massage parlor establishments may have
created in the past.
B. It is intended that massage therapy is a profession of the healing arts and subject
to all zoning ordinances and regulations as may be required for professional uses,
consistent with and not preempted by the requirements of Chapter 10.5 (commencina
with Section 46001 of Division 2 of the California Business 2nd Professions Code. '
C. It is also intended that massage uses not regulated or exempted by this chapter
or state law are considered massage parlors thus regulated by the provisions in Chapter
19.104 regulating adult-oriented commercial activities.
9.06.020 Definitions.
For the purpose of this chapter, unless the context clearly requires a different meaning,
the words are termed and phrased as set forth in this section and shall have the meaning
given them in this section:
A. "Corporate massage" means any massage of the neck, arms, shoulders and back
- area above the waist where the client is fatly clothed and done without the use of
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supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders,
creams, lotions, ointments, or other similar preparations commonly used in this practice.
B. "License" means a license to operate a massage establishment as required by this
chapter.
C. "Managing employee" means any employee of a massage establishment who has
been designated by the holder of the massage establishment license to manage the
business in his/her absence. The managing employee may perform massages at the
business only if he/she obtains and maintains in effect an appropriate massage therapist
permit or MTO certificate.
D. "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, hot towels or with any mechanical or electrical apparatus or
other appliances or devices with or without such supplementary aides as rubbing alcohol,
liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations; or
by baths, not limited to vapor, electric tub, mineral fomentation, or any other type of bath.
E. "Massage establishment" means any licensed establishment having a fixed place of
business where any individual, firm, association, partnership, corporation, joint venture,
or a combination of individuals engages in, conducts, carries on or permits to be engaged
in, conducted or carried on for consideration, massages or health treatments involving
massage, including but not limited to any hot tub/sauna, relaxation or tanning
f establishment in which massage services are made available to clients.
F "Massage practitioner" includes "bodywork practitioner" and "massaee and
bodywork practitioner" and means any person who is certified by the Massage Therapy
Organization pursuant to subdivision (b) of Califomia Business and Professions Code
Section 4601 or subdivisions (a) or (c) of Califomia Business and Professions Code -
Section 4604 and who administers massages baths or health treatments involving
massages or baths as the principal function to another person for any compensation
whatsoever.
(( !! ' LL !! LL H LL
G. Massage therapist includes bodyworker bodywork therapist, an massage
and bodywork therapist" and means any person who has been granted a permit pursuant
to this chapter or who is certified by the Massage Therapy Organization pursuant to
subdivision (c) of California Business and Professions Code Section 4601 and who
administers massages, baths or health treatments involving massages or baths as the
principal function to another person for any compensation whatsoever, °^a ~.°°`~°° •`'°
H "MTO Certificate" means the certificate issued by the Massage Theranv
Organization to massage therapists pursuant to subdivision (c) of Section 4601 of the
California Business and Professions Code and to massage practitioners pursuant to
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subdivision (b) of Section 4601 or subdivisions {a) or {c) of California Business and
Professions Code Section 4604.
(_"Outcal[ massage service" means the engaging in or carrying on of massage for
consideration at a location other than a licensed massage establishment.
J_"Permit" means a permit to engage in activities of a massage therapist or massage
practitioner or a managing employee as required by this chapter.
K. "Person" means any individual, firm, association, partnership, corporation, joint
venture, or combination of individuals.
L. "Recognized school of massage" means any school or institute of learning which
teaches the theory, ethics. history, practice, methods, profession or work of
t~assa~massage, and that is approved bv:
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d The Bureau for Private Postsecondary and Vocational Education
pursuant to former Section 94739 of the California Education Code prior to July 1, 2007.
~~
*-,^^° • ..°a ; °:a c°^+'^^ °^~' ;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; {bl an institution incorporated and lawfulh~ operating as a nonprofit
public benefit corporation pursuant to Part 2 (commencing with Section 5110) of
Division 2 of Title 1 of the California Corporations Code, and that is not managed by an
entity for profit; {c) afor-profit institution: (d) An institution that does not meet all of the
criteria in subdivision (b) herein. that is incorporated and lawfully operating as a
nonprofit public benefit corporationpursuant to Part 2 (commencing with Section 5110)
of Division 2 of Title 1 of the California Corporations Cod, that has been in continuous
operation since April 15, 1997,and that is not managed by any enti for profit.
4. A college or university of the state higher education system, as defined in
California Education Code Section 100850.
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5 A school of equal or greater trainine that is approved by the corresponding aaencv_
in another state or territory of the United States or accredited by an aaencv recognized by
the United States Department of Education.
3-- Any school or institution of learning offering or allowing correspondence course
credit not requiring actual attendance at class, or courses of massage therapy not
approved by the California Department of Education shall not be deemed a recognized
school of massage.
~M. "Residential massage" means engaging in or carrying on of massage at a
residence where the client either owns or rents the residence.
9.Ob.030 Exemptions.
A. A massage establishment license or massage therapist permit or MTO certificate
shall not be required for the following persons while engaging in the performance of the
duties of their respective professions:
1. Physicians, surgeons, chiropractors, or osteopaths, naturopaths or podiatrists
who are duly licensed to practice their respective professions in the State of California
while performing activities encompassed by such professional licenses;
2. Massage therapists or massage practitioners while performing massage in the
offices of a licensed physician, surgeon, chiropractor, er osteopath, naturopath or
podiatrist and while under the direct supervision and medical recommendation of such
licensed medical professional;
3. Nurses (registered or licensed vocational), occupational therapists, or physical
therapists who are duly licensed to practice their professions in the State of California
while performing activities encompassed by such professional licenses; -
4. Trainers of any amateur, semiprofessional or professional athlete or athletic team;
5. Barbers or cosmetologists who are duly licensed under Division Si~-6 of the State
of California's Business and Professions Code en-performing a massage within the scope
of the license and for which no separate or increased prices are charged,provided such
massage is limited to the scalp face neck arms hands lower limbs below the knee,
ankles and feet;
6 State-licensed hospitals nursing homes sanitariums, physiotherapy
establishments or other state-licensed physical or mental health facilities and their
employees;
7 Acupuncturists who are duly Iicensed to practice their professions in the State of
California while performing activities encompassed by such professional license. Anv
State-licensed acupuncturist who provides massa eg services by any person not licensed
i Draft 6-22-09
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as an acupuncturist must obtain a massage establishment license as erescribed by this
chapter.
8. Recognized schools of massage and their students in trainingprovided such
students provide massa eg therapy only to fellow students or volunteers while under the
direct supervision of an instructor;
9. Persons who possess a valid MTQ certificate and w1•.o are practicing_consistent
with the qualifications established by such certificate;
10. Massaee business or establishments as defined under paraeraah (1) of
subdivision (b) of Section 4612 of the California Business and .Professions Code, exceut
that such businesses and establishments shall not be exem t~f'rom the is chanter to the
extent Section 4612 expressly aermits the regulation of such ousinesses or establishments
by local ordinance.
EB. Massages which are cleazly incidental to the operation of a personal fitness
training center, gymnasium or health club or which are offered in conjunction with a
hotel, may be permitted through the use permit for those operations as required in
Chapters 29_56 and 19.72 of the Cupertino Municipal Code. A massage establishment
license is not required for the aforementioned businesses. The massage therapist or
massage practitioner described- operating in this category will however, be required to
°"•^'~ ^ ° "~°-^^~^~ ~°^~-~'* ^°~°~ f ~*~ ~^comnly with the requirements of this
chapter.
Cam. This chapter shall not apply to individuals administering massages or health
treatment involving a massage to persons participating in sinl;ulaz occurring recreational
events provided the following conditions are met.
1. Massage services are made equally available to all participants in the event;
2. The event is open to participation by the general public or significant segment of
the public such as employees of sponsoring or participating corporations;
3. The massage services are provided at the site of the event either during,
immediately preceding or immediately following the event;
4. The sponsors of the event have been advised of and have approved the provisions
of massage services;
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5. The persons providing the massage services are not the primary sponsors of the
event.
9.Ob.040 Massage Establishment License, Massage Therapist Permit and
Managing Employee Permit required.
It is unlawful for any person to engage in, conduct or carry out in or upon any
premises within the City the operation of a massage establishment without a massage
establishment license obtained from the City Manager. In addition to a City business
license, a sepazate establishment license shall be obtained for each separate massage
establishment operated by such person. A massage establishment license shall be issued
to any person who has complied with the requirements of this chapter and all other
applicable provisions of this code unless grounds for denial of such license exist. The
possession of a valid massage establishment license does not authorize the possessor to
perform work for which a massage therapist permit or MTO certificate is required. It is
unlawful to operate, establish or maintain a massage establishment while the license
issued for such business has been suspended, revoked, or has expired. No additional
applications for licenses will be accepted for locations which are in the appeals process,
until the existing license has expired, has been revoked, or has been surrendered by the
applicant.
9.06.041 Massage Therapist Permit or MTO Certificate Required.
It is unlawful for any person to engage in, conduct or carry out the duties of a massage
therapist or massage aractiiioner unless exempted by f~apteFSection 9.06.030, without
first obtaining a massage therapist permit or MTO certificate.
9.06.042 Managing Employee Permit Required.
It is unlawful for any person to engage in, conduct or carry out the duties ofa
managing employee without first obtaining a managing employee permit.
9.Ob.050 Massage Establishment License, Massaged Therapist Permits
and Managing Employee Permits-Application.
Any person desiring a license to operate a massage establishment and/or a massage
therapist or massage aractitioner who does not possess an MTO certificate or a managing
employee permit shall submit an application to the City Manager. Within sixty working
days following receipt of the completed application, the City Manager shall either issue
the permit or mail a written statement of the reasons for denial thereof by certified mail.
When necessary, the City Manager or his/her designee may extend the time in order to
conduct a complete investigation. The application shall set forth the exact nature of the
massage, bath or health treatment to be administered, and the location of the proposed
place of business and facilities thereof. Each applicant is required to furnish fingerprints
for the purpose of establishing identification and/or criminal record. In addition, each
applicant shall famish the following information:
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1. The full name, including any nicknames or other names used presently or in the
I past, and the present street address and phone number of the applicant's residence;
2. The previous address of the applicant for a period of three years immediately
prior to the date of the application and the dates of each residence;
3. The applicant's date of birth;
4. The applicant's height, weight and color of eyes and hair;
5. License number and/or state identification number {if any) and Social Security
number,
b. The applicant's twa most recent employers, includin;; their names, street
addresses, cities and phone numbers, and the position of the applicant;
7. The names, street addresses and phone numbers of any massage establishment or
any other business involving massage, relaxation, or other related business by which the
applicant has been employed within the past ten years, and th a dates of employment;
8. Any criminal conviction on the part of the applicant i"or offenses other than traffic
violations within the ten years preceding the date of the application;
9. Whether the applicant has ever had a license, certificate, permit, or other
authorization to engage in the practice of massage or related husiness; whether the
operation of a massage establishment, or other business engaged in the practice of
massage, was suspended or revoked within the ten years preceding the date of the
application, and dates and reasons for any such suspensions or revocations, and the name
and location of the jurisdiction or agency which suspended o3• revoked such license,
certificate, permit or other authorization; -
10. Whether the applicant, including applicant as a member of a corporation,
business, or partnership, has ever operated or been employed at any business that has
been the subject of an abatement proceeding under the California Red Light Abatement
Act (California Penal Code Sections 11225 through 11325) or any similar laws in other
jurisdictions. [f the applicant has previously worked at such a business, he/she should
state on the application the name and address of the business, the dates on which the
applicant was employed at such business, the name and location of the court in which the
abatement action occurred, the applicable case number, and t:~e outcome of the abatement
action;
11. If the applicant is a partnership, the application shall set forth the names and
street addresses of each general and limited partner,
12. If one or more partners are a corporation, the name of the corporation shalt be
set forth exactly as shown in its articles of incorporation or charter together with the state
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and date of incorporation and the full legs[ names and street addresses of each of its
current officers and directors;
13. Whether the applicant has met the educational requirements set forth in this .
chapter {except for cases involving applications for massage establishments or managing
employee permits, when the applicant has filed a statement under penalty of perjury that
he/she will not personally give massages at the massage establishment);
14. Whether the applicant has previously applied to the City for a massage
establishment permit, managing employee permit, or massage therapist permit, the date
of the application and every name{s) under which the application was made;
15. In the case of an application for a massage establishment permit or managing
employee permit, the proposed name and street address of the massage establishment,
together with the name and street address of any other massage business operated or
managed by the applicant, within the ten years preceding the date of the application;
16. In the case of an application for a massage establishment license or managing
employee permit, whether the applicant intends to personally provide massage services at
the business;
17. A statement under penalty of perjury that the applicant has not made any false,
misleading, or fraudulent statements or omissions of fact in his/her application or any
other documents required by the City to be submitted with the application;
18. The name and street address of the owner or renter and the Lease holder of
proposed premises of which application is made;
19. Acknowledgment by the applicant that any information contained within the
application that may change during the validity of the permit or license will be provided-
to the City to maintain current records;
20. Authorization for the City, its agents and employees, to seek information and
conduct an investigation into the truth of the statements set forth in the application and
into the background of the applicant and responsible managing officer,
21. Such other information as may be deemed necessary by the City Manager.
9.06.055 Massage Establishment License, Massage Therapist Permits and
Managing Employee Permits-Submittal of Documentation.
Applicants shall also submit the following information at the time of their application:
A. A copy of an acceptable form of picture identification such as a driver's license
or state identification card;
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B. Two recent identical color photographs of the appliatnt (similar to passport
photographs);
C. Documentation to prove that the applicant has a lawful right to work in the
United States;
D. Such other information as may be deemed necessary by the City Manager,
B. In the case of an applicant for a massage therapist pei7nit, a certificate from a
physician, which includes the physician's street address and Rhone number, and states
that the applicant is free from communicable diseases or other conditions which could
interfere with his/her ability to engage in the practice of massage, to the public, in a safe
and healthful manner. Communicable disease testing is required for hepatitis B and
tuberculosis. The medical exam must have been completed within sixty days of the
permit application;
F. In the case of an applicant for a massage therapist permit, a diploma, certificate
of graduation, transcripts, or other written proof acceptable to the City Manager or his/her
designee that the applicant has met the educational requirements set forth in this chapter.
9.06.060 Massage Establishment License, Massage Therapist Permit and
Managing Employee Permit Application Fee.
Any application for a license to operate a massage establishment and/or a massage
therapist permit and managing employee permit shall be accompanied by a
nonrefundable fee, as established by resolution of the City Council. The application fee
shall be used to defray the cost of investigation and report, and is not made in lieu of any
other fees or taxes required by the Cupertino Municipal Code. The application fee shall
be paid at the time the application is submitted.
9.06.065 Massage Establishment License, Massage Therapist Permit and
Managing Employee-Expiration and Renewal.
A massage establishment license, massage therapist permit, and a managing employee
permit shall expire 365 days from date of issue and_ must be r~;newed every year. A
renewal fee will be assessed for each permi# being renewed. Applications for the renewal
of establishment licenses must be submitted to the City Manger or his/her designee no
later than sixty days prior to the expiration of such license or permit. There shall be no
grace period for a massage establishment license, massage th~;rapist permit, or managing
employee permit should the aforementioned be allowed to ex;~pire.
9.06.070 Massage Establishment License, Massage Therapist Permit and
Managing Employee~roands for Denial.
A massage establishment license may be denied by the Ciiy Manager if one or more of
the following are found: Formatted: Right: 0.25"
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A. That the applicant made a material misstatement in the application for a license
and/or permit;
B. That the applicant or any officers or directors of the applicant has been convicted
of:
1. An offense which requires registration pursuant to California Penal Code Section
290, or a violation of Penal Code Sections 266(1), 31 ]through 311.7, 314, 315, 316, 318,
647(b) or {d), or equivalent offenses under the laws of another jurisdiction, even if
expunged pursuant to Penal Code Section 1203.4;
2. A prior offense which involves violation of California Health and Safety Sections
11351, 11352, 11358 through 11363, 11378 through 11380, 1 L054, 1105b, 11057, 11058,
any other violations} involving illegal possession for sale, or sales of a controlled
substance, or equivalent offenses under the laws of another jurisdiction, even if expunged
pursuant to Penal Code Section 1203.4;
3. Any offense involving the use of force or violence upon another person;
4. Any offense involving sexual misconduct with children;
5. Any offense involving theft.
C. 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;
D. That the operation of the proposed massage establishment is likely to be a
hindrance to the health, safety, welfare or interest of the people of the City;
E. That the applicant is lacking in the background qualifications to conduct a bona
fide massage establishment;
F. That the applicant has violated any provision of this chapter or any similar law,
rule or regulation of another public agency which regulates the operation of massage
establishments.
9.06.080 Massage Establishment Employees-Permit Requirements.
It is unlawful for any licensed massage establishment or managing employee to allow
any person to perform massage, bath or health treatment for any compensation unless the
person holds a valid massage therapist permit or MTO certificate.
9.06.110 Massage Therapist Permit-Criteria for Issuance.
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A massage therapist permit shall be issued to a person who meets the following
criteria:
A. Is a member in good standing of a State or nationally chartered organization
devoted to the massage specialty and therapeutic approach; and
B. Has completed one the following requirements:
1. Five hundred hours of instruction in a massage specialty and therapeutic
approach at a recognized school of massage;
2. Two hundred fifty hours of such instruction and an additional five hundred
documented hours of practical experience in a massage specialty and therapeutic
approach in one or a combination of the following:
a. A primary office of and under the direct supervision of a medica[ professional
licensed by the State of California, specifically a physician, surgeon, chiropractor,
osteopath, physical therapist or nurse, while such medical professional is performing
activities encompassed by such license and is physically on the premises where the
massage therapy is being administered;
3. Has taken and successfully passed the National Certilcation Board for
Therapeutic Massage and Bodywork or the National Certification Commission for
Acupuncture and Oriental Medicine test module related to Asian Bodywork Therapy.
The applicant must submit a current certificate with the application to satisfy this
criteria.
9.06.120 Massage Therapist Practical Examination.
The applicant shall take and pass a written test and practical performance examination
administered through a medical practitioner approved by the City of Cupertino wherein
the applicant has been required to demonstrate a basic knowlE;dge of anatomy,
physiology, hygiene and massage. If the applicant fails the practical exam, he/she shall
be permitted to retake the exam once, after at least thirty but no more than sixty days
have elapsed from the date of the first exam, provided that the applicant pays the
applicable exam fees for a second time. Should the applicant fail the exam a second time,
the application shall be denied, and the applicant shall not be permitted to apply again for
a massage therapist permit for a period of one year. Applicants, who have taken and
successfully passed the National Certification Boazd for Therapeutic Massage and
Bodywork or the National Certification Commission for Acupuncture and Oriental
Medicine test module related to Asian Bodywork Therapy, shall be exempted from the
Massage Therapist Practical Examination. The applicant must submit a current
certificate with the application to be exempt. This secfson does not apply to anyone
possessing an MTO certificate.
9.06.160 Annual Medical Examination for Massage Therapist.
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A. Any person who has been issued a massage therapist permit shall file with the
City Manager each year within sixty days of the anniversary date of the issuance of the
permit an updated certificate from a medical doctor stating that the permittee massage
therapist has, within sixty days immediately prior to the filing of the certificate, been
examined and been found to be free of any contagious or communicable disease set forth
in Section 9.06.OSSE.
B. It is unlawful for any person who has neglected, failed, or refused to file a
certificate required by subsection A of this section to act as a massage therapist. Failure
to submit the required certificate shall be grounds for revocation of the permit.
C Individuals who possess an MTO certificate are not subject to an annual medical
examination.
9.06.180 Outcall Massage Permit Application.
An outcall massage permit may be issued only to aCupertino-licensed massage
therapist or person in possession of an MTO certificate. T° „aa:a^^ «^ «"° „°...,.:««;.,n
'« ~' *"°-~^~~« ^ ~~~+ ~~-«"'° ^"^^«°~ ^An applicant for an outcall
Y
massage permit must provide a list of all businesses and residences where the applicant
will be performing outcall massage. T"° -^°°~°^^ «"°"^^~°« and must keep the City
~anage~Manager,or his/her designee, advised in writing of changes to said list.
9.06.190 Outcall Massage Permit Criteria.
Outcall massage may be performed only under the following criteria:
A. Corporate.
]. The massage treatment shall consist of "corporate" massage only as defined in
Section 9.06.020; .
2. Outcall "corporate" massage clients shall be owners and employees of the
business at which the massage therapist will be performing massage.
B. Residential.
1. The massage treatment shall consist of corporate massage only as defined in
Section 9.06.020;
2. "Residential" massage clients must possess a referral from a licensed physician,
sur eg on, chiropractor, osteopath, naturopath, or pky~ieien- other health caze professional
to the effect that treatment in a licensed massage establishment is not recommended. A
record of every such referral shall be obtained and kept by the person rendering the
services for a period of one year from date of referral Such record shall show the name
and address of the doctor, the date and any prescription number.
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9.{}6.193 Operating Requirements for Massage Establishments.
Unless otherwise specified in this chapter, all massage establishments shall comply
with the following operating requirements:
A. Exterior Signs. A recognizable and legible sign shall be posted at the main
entrance identifying the business as a massage establishment. In addition, the sign shall
comply with the City sign ordinance.
B. Posting of Massage Establishment License, Massage Therapist Permit, and
Managing Employee Permit and MTO Certificate. A copy of the massage establishment
license, massage therapist permit(s), and-managing employee permit(s), and MTO
certificates) shall be posted in a conspicuous place in such a manner that it can easily be
seen by persons entering the establishment. °^^^~~~* ^'~° ^''•
_C. Designation of Managing Employee. if the holder of the massage establishment
license does not personally manage the business during all hours of operation, he/she
shall designate one or more managing employee(s) who shall be in charge of the
operation of the business during his/her absence. if the managing employees} will
personally provide massages at the business, he/she must obt;un a massage therapist
permit or possess an MTO certificate.
D. Posting of Services Available and Fees. A list of all services available, the price
thereof and the length of time each service shall be performed, shall be posted or
available in a conspicuous place in such a manner that it can ~;asily be seen by persons
entering the establishment. t*Io other services, other than those posted, shall be provided.
E. Paymentltips. Payment for massage services, and any tips, shall be paid for at
the designated reception area of the business establishment.
F. Alcohol Prohibited. No alcoholic beverages may be located on the premises of
the massage establishment while the business is open for the ~~ractice of massage.
G. Maintain Written Records. Every massage establishment shall keep a written
record of the date and hour of each service provided, the name and address of each patron
and the service received, and the name of the n.a~,g~~s~ individual administering
the service. Such records shall be open to inspection only by officials of the City charged
with enforcement of this chapter. These records may not be used for any other purpose
than as records of service provided and may not be provided to other parties by the
massage establishment or service unless otherwise required b;y law. Such records shall be
retained on the premises of the massage establishment for a period of two years.
27-15
H. Standard of dress for massage establishment employees. The holder of the
massage establishment permit, massage therapists, massage practitioners, managing
employees, and all other employees of the massage establishment shall remain fully
clothed in clean outer garments while on the premises of the massage establishment. At a
minimum such clothing shall be made of nontransparent material and shalt not expose the
buttocks, genital area or breasts of any employee or permit holder at any time.
I. Operating, Hours. No massage establishment shall be kept open for business and
no massage therapist or massage practitioner shall administer massages after the hour of
ten p.m. or before the hour of seven a.m. Operating hours may be further restricted by
the City Manager pursuant to Section 9.06.200.
J. Mirrors Prohibited. [n general, mirrors are prohibited in rooms where massages
are performed; however, one full length or small mirror may be mounted vertically to the
wall, not less than twenty inches from the floor.
K. Lighting Required. Massage establishments wi~must be well-lighted at all
times during business hours. Rooms where massage services are provided will-must be
adequately lighted when occupied.
9.06.1.96 Massage Establishment Sanitary Conditions-Condition of
Premises.
A. Required Maintenance of Massage Establishment. All premises and facilities of
the massage establishment shall be maintained in a clean and sanitary condition and shall
be thoroughly cleaned after each day of operation. The premises and facilities shall meet
applicable code requirements of the city, including but not limited to those related to the
safety of structures, adequacy of the plumbing, heating, ventilation, and waterproofing of
rooms in which showers, water, or steam baths are used. _
B. .Linens. All massage establishments shall provide clean laundered sheets, towels, _
and other linen insufficient quantity for use by their clients. Such linens shall be
laundered after each use and stored in a sanitary manner. No common use of linens or
towels shall be permitted. Heavy white paper may be substituted for sheets on massage
tables, provided such paper is used only once for each client and is then discarded into a
sanitary receptacle. Containers shall be provided for the storage of al[ soiled linens.
C. Privacy Standards for Massage Rooms, Dressing Rooms, and Restrooms.
Dressing rooms and restrooms may only be used by clients of the same sex at the same
time. The massage establishment shall provide doors for all dressing rooms, and massage
rooms. Draw drapes, curtain enclosures, or accordion-pleated enclosures are acceptable
in lieu of doors for dressing rooms and massage rooms.
27-16
A. Touching of Sexual and Genital Parts of Client During Massage, No holder of a
massage establishment license, massage therapist permit, MTO certificate, managing
employee permit, or any other employee of a massage establishment shall place either
his/her hand or hands upon, or touch with any part of his/her body, or with a mechanical
device, a sexual or genital part of any other person in the course of a massage, or massage
a sexual or genital part of any other person. Sexual and genital parts shall include the
genitals, pubic area, anus, or perineum of any person.
B. Uncovering and Exposure of Sexual and Genital Parts of Client Before, During
or After Massage. No holder of a massage establishment license, massage therapist
permit, MTO certificate, managing employee permit, or any other employee of a massage
establishment shall uncover and expose the sexual or genital parts of a client or
themselves while engaged in the practice of massage, or before or after a massage. This
subsection does not prohibit a client from turning over in the course of a massage,
provided the massage therapist holds a towel, sheet, blanket, or other drape over the
client to protect his/her genital and sexual parts from exposure. If the client exposes the
genital area, the massage therapist or massage practitioner shall immediately direct the
client to cover him/herself. If the client refuses to comply, the massage therapist or
massage practitioner shall inform the client that no further massage will be provided and
the client will be asked to leave the premises. [f the client refuses to leave the premises,
the massage therapist or massage practitioner must immediately leave the room and
notify the managing employee.
C. Outcall Massage Services. It is unlawful for any massage establishment er
massage therapist or massage practitioner to provide outcall .massage services within the
City unless it occurs at the client's residence, and the client possesses a referral from a
licensed ~hysician. surgeon, chiropractor osteopath, natur_opath or phy~ieien-other health -
care professional stating that the treatment in a licensed massage establishment is not
recommended and the medical reason why it is not recommended, or at a business
establishment in which clients shall be owners and employees of the business and the -
massage treatment consists of a "corporate massage" as defined in Section 9.06.020. A
record of every such referral shall be obtained and kept by the ffutssege-therapist .
individual rendering the service for a period of one year fron- the date of referral. Such
record shall show the full legal name and street address of the physician, sur eg on, desteF
e~chiropractor osteopath, naturopath or o_th_e_r health care prafessionaI, the date, and any
prescription number. Individuals providing outcall massage must
comply with all provisions of this chapter.
D. Transfer of Massage Establishment License, Massal;e Therapist Permit and
Managing Employee Permit. No permit issued pursuant to dais chapter shall be
transferred or assigned in any matter, whether by authorization of law or otherwise, from
any location to location or from person to person, except that: a person possessing a
massage therapist permit, issued by the City, shall be able to move from one employer to
another without filing a new application or paying a new fee, so long as the permit holder
notifies the City Manager or his/her designee, in writing, of the change in his/her
employment within five business days of such. change. Failure to make this notification
Formatted: Right: 0.25'
~ Draft b-22-09 15•'
27 - 17
within five business days shall be grounds for suspension, revocation, or denial of the
permit.
4.06.200 Suspension or Revocation-Grounds.
Any license or permit issued under this chapter may be suspended or revoked by the
City Manager for any reason which would justify the refusal to grant a license or permit
originally.
9.06.210 Suspension orRevocation-Notice-Hearing.
The holder of the license or permit shall be given prompt notice of revocation or
suspension of the license or permit and shall immediately desist from engaging in the
activity. The notice shall fix a time and place, not less than five or more than thirty days
after service thereof, at which time the holder of the license or permit may appear before
the City Manager and be granted a hearing upon the merits of such suspension or
revocation. If after such hearing the license or permit is ordered revoked, the holder shall
have the right to appeal such action to the City Council in accordance with Section
9.06.220 of this chapter.
9.06.220 Appeals.
Any person whose license or permit has been denied, suspended or revoked may
appeal the administrative decision of the City Manager, or designated representative, by
filing a written notice of appeal with the City Clerk within five werk~g-business days
after receipt of notice of the decision. Such appeal shall be heard by the City Council,
which may affirm, amend or reverse the order, or take other action deemed appropriate.
The Clerk shall give written notice of the time and place of the hearing to the appellant
and any other person requesting notice. In conducting the hearing, the City Council shall
not be limited by the technical rules of evidence. Any person requesting an appeal shall
pay a nonrefundable fee set forth in the City fee schedule at the time of filing the appeal.
9.06.230 Inspection by Officials-Premises.
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, and to ascertain compliance with the provisions of this chapter. A
warrant shall be obtained whenever required by law.
9.06.240 Violation-Public Naisance.
j Violations of any provisions of this chapter constitutes a public nuisance which may
be abated pursuant to Chapter 1.04 of the Cupertino Municipal Code.
9.06.250 Violation-Penalty.
Draft 6-22-09
27-18
Any person who violates the provisions of this chapter shz.ll be guilty of a
misdemeanor and upon conviction thereof shall be punished :u provided in Chapter I.12
of the Cupertino Municipal Code.
9.06.260 Continuing Violations-Alternative Remedlies.
Nothing in this chapter shall be deemed to prevent the Cit!~ Council from directing the
City Attorney to commence civil action to enjoin the continuixI violation of any
provisions of this chapter or to abate a nuisance, as an alternative, or in con}unction with
any other civil or criminal proceedings provided for herein.
le-te-Massage
.,.w:..~, t.,...c..n.. a :~.va
braft 6-22-09
27-19
~~~~~ ATTACHMENT B
ORDINANCE N0.2046
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CUPERTINO AMENDING CHAPTER 9.06 OF THE
CUPERTINO MUNICIPAL CODE RELATING TO
MASSAGE ESTABLISHMENTS AND SERVICES BY
REPLACING IT IN ITS ENTIRETY
THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN
THAT CHAPTER 9.06 OF THE CUPERTINO MUNICIPAL CODE IS REPLACED IN ITS
ENTIRETY TO READ AS FOLLOWS:
CHAPTER 9.Ob: MASSAGE ESTABLISHMENTS AND SERVICES
9.06.010 Purpose of Provisions.
A. It is the purpose and intent. of this chapter to provide for the orderly regulation of
massage therapists and massage establishments as defined in this chapter in the interest of public
health, safety and welfare by providing certain minimum qualifications for the operators of
massage establishments and massage therapists. It also is the purpose of this chapter to recognize
the voluntary statewide certification of massage therapists and massage practitioners by the
Massage Therapy Organization (MTO}. This chapter is adopted based on the following findings:
1. That the City has recognized the field of massage therapy as a viable professional field;
2. That the City wants to recognize and respect professional massage therapy organizations
and qualified professionals who operate consistent with the provisions of Chapter 10.5
(commencing with Section 4600)of Division 2 of the California Business and Professions Code;
3. The City also finds that the rules and regulations as developed in this chapter strive for
equality of all massage organizations and therapists while attempting to prevent serious
objectionable characteristics which massage parlor establishments may have created in the past.
B. It is intended that massage therapy is a profession of the healing arts and subject to all
zoning ordinances and regulations as may be required for professional uses, consistent with and
not preempted by the requirements of Chapter 10.5 {commencing with Section 4600) of Division
2 of the California Business and Professions Code.
C. It is also intended that massage uses not regulated or exempted by this chapter or state
law are considered massage parlors thus regulated by the provisions in Chapter 19.104 regulating
adult-oriented commercial activities.
z~ - 20
Ordinance No. 09-2046
9.06.020 Definitions.
For the purpose of this chapter, unless the context clearly requires a different meaning, the
words are termed and phrased as set forth in this section and shall have the meaning given them
in this section:
A. "Corporate massage" means any massage o:f the neck, arms, shoulders and back area above
the waist where the client is fully clothed and done without the use of supplementary aids, such
as rubbing alcohol, liniments, antiseptics, oils, po~~vders, creams, lotions, ointments, or other
similar preparations commonly used in this practi~~e.
B. "License" means a license to operate a mas~:age establishment as required by this chapter.
C. "Managing employee" means any employee of a massage establishment who has been
designated by the holder of the massage establishment license to manage the business in his/her
absence. The managing employee may perform rriassages at the business only if he/she obtains
and maintains in effect an appropriate massage therapist permit or MTO certificate.
D. "Massage" means any method of pressure oii or friction against or stroking, kneading,
rubbing, tapping, pounding, vibrating or stimulati~lg the external parts of the human body with
the hands, hot towels or with any mechanical or electrical apparatus or other appliances or
devices with or without such supplementary aides as rubbing alcohol, liniment, antiseptic, oil,
powder, cream, lotion, ointment or other similar preparations; or by baths, not limited to vapor,
electric tub, mineral fomentation, or any other type of bath.
E. "Massage establishment" means any licensed establishment having a fixed place of business
where any individual, firm, association, partnership, corporation, joint venture, or a combination
of individuals engages in, conducts, carries on or hermits to be engaged in, conducted or carried
on for consideration, massages or health treatments involving massage, including but not limited
to any hot tub/sauna, relaxation or tanning establi~;hment in which massage services are made
available to clients.
F. "Massage practitioner" includes "bodywork practitioner" and "massage and bodywork
practitioner" and means any person who is certified by the Massage Therapy Organization
pursuant to subdivision {b} of California Business and Professions Code Section 4601 or
subdivisions (a) or (c) of California Business and Professions Code Section 4604 and who
administers massages, baths or health treatments involving massages or baths as the principal
function to another person for any compensation whatsoever.
G. "Massage therapist" includes "bodyworker," "bodywork therapist," and "massage and
bodywork therapist" and means any person who has been granted a permit pursuant to this
chapter or who is certified by the Massage Therapy Organization pursuant to subdivision (c) of
California Business and Professions Code Section 4601 and who administers massages, baths or
heal#h treatments involving massages or baths as the principal function to another person for any
compensation whatsoever.
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27-21
Ordinance No. 09-2046
H. "MTO Certificate" means the certificate issued by the Massage Therapy Organization to
massage therapists pursuant to subdivision (c) of Section 4601 of the California Business and
Professions Code and to massage practitioners pwsuant to subdivision (b) of Section 4601 or
subdivisions (a) or (c) of California Business and Professions Code Section 4604.
I. "Outcall massage service" means the engaging in or carrying on of massage for
consideration at a location other than a licensed massage establishment.
J. "Permit" means a permit to engage in activities of a massage therapist or massage
practitioner or a managing employee as required by this chapter.
K. "Person" means any individual, firm, association, partnership, corporation, joint ventwe, or
combination of individuals.
L. "Recognized school of massage" means any school or institute of learning which teaches
the theory, ethics, history, practice, methods, profession or work of massage, and that is approved
by:
1. The Bweau for Private Postsecondary and Vocational Education pursuant to former
Section 94739 of the California Education Code prior to July 1, 2007.
2. The Department of Consumer Affairs.
3. An institution accredited by the Accrediting Commission for Senior Colleges and
Universities or the Accrediting Commission for Community and Junior Colleges of the Western
Association of Schools and Colleges and that is one of the following: (a) a public institution; (b)
an institution incorporated and lawfully operating as a nonprofit public benefit corporation
pursuant to Part 2 (commencing with Section 5110} of Division 2 of Title 1 of the California
Corporations Code, and that is not managed by an entity for profit; (c) afor-profit institution; {d)
An institution that does not meet all of the criteria in subdivision {b) herein, that is incorporated
and lawfully operating as a nonprofit public beneft corporation pwsuant to Part 2 (commencing
with Section 5110} of Division 2 of Title 1 of the California Corporations Cod, that has been in
continuous operation since April 15, 1997,and that is not managed by any entity for profit.
4. A college or uzuversity of the state higher education system, as defined in California
Education Code Section 100850.
5. A school of equal or greater training that is approved by the corresponding agency in
another state or territory of the United States or accredited by an agency recognized by the United
States Department of Education.
Any school or institution of learning offering or allowing correspondence course credit not
requiring actual attendance at class, or cowses of massage therapy not approved by the California
Department of Education shall not be deemed a recognized school of massage.
M. "Residential massage" means engaging in or carrying on of massage at a residence
where the client either owns or rents the residence.
3
27 - 22
Ordinance No. 09-2446
9A6.030 Exemptions.
A. A massage establishment license or massage therapist permit or MTO certificate shall
not be required for the following persons while engaging in the performance of the duties of their
respective professions:
1. Physicians, surgeons, chiropractors, osteopaths, naturopaths or podiatrists who are duly
licensed to practice their respective professions in the State of California while performing
activities encompassed by such professional licenses;
2. Massage therapists or massage practitioners while performing massage in the offices of a
licensed physician, surgeon, chiropractor, osteopath, naturopath or podiatrist and while under the
direct supervision and medical recommendation of such licensed medical professional;
3. Nurses {registered or licensed vocational}, occupational therapists, or physical therapists
who aze duly licensed to practice their profession; in the State of California while performing
activities encompassed by such professional licenses;
4. Trainers of any amateur, semiprofessional. or professional athlete or athletic team;
5. Barbers or cosmetologists who are duly licensed under Division 6 of the State of
California's Business and Professions Code performing a massage within the scope of the license
and for which no separate or increased prices are charged, provided such massage is limited to
the scalp, face, neck, arms, hands, lower limbs below the knee, ankles and feet;
6. State-licensed hospitals, nursing homes, sanitariums, physiotherapy establishments or
other state-licensed physical or mental health facilities and their employees;
7. Acupuncturists who are duly licensed to f~ractice their professions in the S#ate of
California while performing activities encompass~:d by such professional license. Any State-
licensed acupuncturist who provides massage ser~~ices by any person not licensed as an
acupuncturist must obtain a massage establishment license as prescribed by this chapter.
8. Recognized schools of massage and their students in training, provided such students
provide massage therapy only to fellow students or volunteers while under the direct supervision
of an instructor;
9. Persons who possess a valid MTO certificate and who are practicing consistent with the
qualifications established by such certificate;
10. Massage business or establishments as defined under paragraph (1) of subdivision {b) of
Section 4612 of the California Business and Professions Code, except that such businesses and
establishments shall not be exempt from the is chapter to the extent Section 4612 expressly
permits the regulation of such businesses or establishments by local ordinance.
B. Massages which are clearly incidental to the operation of a personal fitness training
center, gymnasium or health club or which are offered in conjunction with a hotel, may be
permitted through the use permit for those operations as required in Chapters 19.56 and 19.72 of
4
27 - 23
Ordinance No. 09-2046
the Cupertino Municipal Code. A massage establishment license is not required for the
aforementioned businesses. The massage therapist or massage practitioner operating in this
category will however, be required to comply with the requirements of this chapter.
C. This chapter shall not apply to individuals administering massages or health treatment
involving a massage to persons participating in singular occurring recreational events provided
the following conditions are met.
i . Massage services are made equally available to all participants in the event;
2. The event is open to participation by the general public or significant segment of the
public such as employees of sponsoring- or participating corporations;
3. The massage services are provided at the site of the event either during, immediately
preceding or immediately following the event;
4. The sponsors of the event have been advised of and have approved the provisions of
massage services;
5. The persons providing the massage services are not the primary sponsors of the event.
9.06.040 Massage Establishment License, Massage Therapist Permit and Managing
Employee Permit-required.
It is unlawful for any person to engage in, conduct or carry out in or upon any premises within
the City the operation of a massage establishment without a massage establishment license
obtained from the City Manager. In addition to a City business license, a separate establishment
license shall be obtained for each separate massage establishment operated by such person. A
massage establishment license shall be issued to any person who has complied with the
requirements of this chapter and all other applicable provisions of this code unless grounds for
denial of such license exist. The possession of a valid massage establishment license does not
authorize the possessor to perform work for which a massage therapist permit or MTO certificate
is required. It is unlawful to operate, establish or maintain a massage establishment while the
license issued for such business has been suspended, revoked, or has expired. No additional
applications for licenses will be accepted for locations which are in the appeals process, until the
existing license has expired, has been revoked, or has been surrendered by the applicant.
9.06.041 Massage Therapist Permit or MTO Certificate Required.
It is unlawful for any person to engage in, conduct or carry out the duties of a massage
therapist or massage practitioner unless exempted by Section 9.06.030, without first obtaining a
massage therapist permit or MTO certificate.
9.06.042 Managing Employee Permit Required.
It is unlawful for any person to engage in, conduct or carry out the duties of a managing
employee without first obtaining a managing employee permit.
5
z~ - 2a
Ordinance No. 09-2046
9.06.050 Massage Establishment License, Mas>~aged Therapist Permits and Managing
Employee Permits Application.
Any person desiring a license to operate a mas:~age establishment and/or a massage therapist
or massage practitioner who does not possess an bTT0 certificate or a managing employee permit
shall submit an application to the City Manager. `JJithin sixty working days following receipt of
the completed application, the City Manager shall either issue the permit or mail a written
statement of the reasons for denial thereof by certified mail. When necessary, the City Manager
or his/her designee may extend the time in order to conduct a complete investigation. The
application shall set forth the exact nature of the massage, bath or health treatment to be
administered, and the location of the proposed place of business and facilities thereof. Each
applicant is required to furnish fingerprints for the purpose of establishing identification and/or
criminal record. In addition, each applicant shall iEurnish the following information:
1. The full name, including any nicknames or other names used,presently or in the past, and
the present street address and phone number of thf; applicant's residence;
2. The previous address of the applicant for a period of three years immediately prior to the
date of the application and the dates of each residence;
3. The applicant's date of birth;
4. The applicant's height, weight and color of eyes and hair;
5. License number and/or state identification number {if any) and Social Security number,
6. The applicant's two most recent employers, including their names, street addresses, cities
and phone numbers, and the position of the applicant;
7. The names, street addresses and phone numbers of any massage establishment or any
other business involving massage, relaxation, or other related business by which the applicant has
been employed within the past ten yeazs, and the dlates of employment;
8. Any criminal conviction on the part of the applicant for offenses other than traffic
violations within the ten years preceding the date a~f the application;
9. Whether the applicant has ever had a license, certificate, permit, or other authorization to
engage in the practice of massage or related business; whether the operation of a massage
establishment, or other business engaged in the practice of massage, was suspended or revoked
within the ten years preceding the date of the application, and dates and reasons for any such
suspensions or revocations, and the name and location of the jurisdiction or agency which
suspended or revoked such license, certificate, permit or other authorization;
10. Whether the applicant, including applicant as a member of a corporation, business, or
partnership, has ever operated or been employed at any business that has been the subject of an
abatement proceeding under the California Red Light Abatement Act (California Penal Code
Sections 11225 through 11325) or any similar laws in other jurisdictions. If the applicant has
previously worked at such a business, he/she should state on the application the name and
6
27 - 25
Ordinance No. 09-204b
address of the business, the dates on which the applicant was employed at such business, the
name and location of the court in which the abatement action occurred, the applicable case
number, and the outcome of the abatement action;
11. If the applicant is a partnership, the application shall set forth the names and street
addresses of each general and limited partner,
i 2. If one or more partners are a corporation, the name of the corporation shall be set forth
exactly as shown in its articles of incorporation or charter together with the state and date of
incorporation and the full legal names and street addresses of each of its current officers and
directors;
13. Whether the applicant has met the educational requirements set forth in this chapter
(except for cases involving applications for massage establishments or managing employee
permits, when the applicant has filed a statement under penalty of perjury that he/she will not
personally give massages at the massage establishment);
14. Whether the applicant has previously applied to the City for a massage establishment
permit, managing employee permit, or massage therapist permit, the date of the application and
every name(s) under which the application was made;
15. In the case of an application for a massage establishment permit or managing employee
permit, the proposed name and street address of the massage establishment, together with the
name and street address of any other massage business operated or managed by the applicant,
within the ten years preceding the date of the application;
16. In the case of an application for a massage establishment license or managing employee
permit, whether the applicant intends to personally provide massage services at the business;
17. A statement under penalty of perjury that the applicant has not made any false,
misleading, or fraudulent statements or omissions of fact in his/her applica#ion or any other
documents required by the City to be submitted with the application;
18. The name and street address of the owner or renter and the lease holder of proposed
premises of which application is made;
19. Acknowledgment by the applicant that any information contained within the application
that may change during the validity of the permit or license will be provided to the City to
maintain current records;
20. Authorization for the City, its agents and employees, to seek information and conduct
an investigation into fine truth of the statements set forth in the application and into the
background of the applicant and responsible managing officer,
21. Such other information as may be deemed necessary by the City Manager.
9.06.055 Massage Establishment License, Massage Therapist Permits and Managing
Employee Permits-Submittal of Documentation.
7
2~ - 2s
Ordinance No. 09-2046
Applicants shall also submit the following information at the time of their application:
A. A copy of an acceptable form of picture identification such as a driver's license or state
identification card;
B. Two recent identical color photographs o:f the applicant (similar to passport
photographs);
C. Documentation to prove #hat the applicant has a lawful right to work in the United
States;
D. Such other information as may be deemed necessary by the City Manager,
E. In the case of an applicant for a massage therapist permit, a certificate from a physician,
which includes the physician's street address and ~~hone number, and states that the applicant is
free from communicable diseases or other conditions which could interfere with his/her ability to
engage in the practice of massage, to the public, iri a safe and healthful manner. Communicable
disease testing is required for hepatitis B and tuberculosis. The medical exam must have been
completed within sixty days of the permit application;
F. In the case of an applicant for a massage therapist permit, a diploma, certificate of
graduation, transcripts, or other written proof acceptable to the City Manager or his/her designee
that the applicant has met the educational requirements set forth in this chapter.
9.06.060 Massage Establishment License, Massage Therapist Permit and Managing
Employee Permit Application Fee.
Any application for a license to operate a mass~~ge establishment and/or a massage therapist
permit and managing employee permit shall be aa~ompanied by a nonrefundable fee, as
established by resolution of the City Council. The: application fee shall _be used to defray the cost
of investigation and report, and is not made in lieL~ of any other fees or taxes required by the
Cupertino Municipal Code. The application fee shall be paid at the time the application is
submitted.
9.06.065 Massage Establishment License, Mas:~age Therapist Permit and Managing
Employee-Expiration and Renewal.
A massage establishment license, massage therapist permit, and a managing employee permit
shall expire 365 days from date of issue and must be renewed every year. A renewal fee will be
assessed for each permit being renewed. Applications for the renewal of establishment licenses
must be submutted to the City Manager or his/her designee no later than sixty days prior to the
expiration of such license or permit. There shall l;~e no grace period for a massage establishment
license, massage therapist permit, or managing employee permit should the aforementioned be
allowed to expire.
9.Ob.070 Massage Establishment License, Mas:~age Therapist Permit and Managing
Employee-Grounds for Denial.
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27-27
Ordinance No. 09-2046
A massage establishment license maybe denied by the City Manager if ane or more of the
following are found:
A. That the applicant made a material misstatement in the application for a license and/or
permit;
B. That the applicant or any officers or directors of the applicant has been convicted of
1. An offense which requires registration pursuant to California Penal Code Section 290, or
a violation of Penal Code Sections 266(1), 311 through 311.7, 314, 315, 316, 318, 647(b) or (d),
or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant #o Penal
Code Section 1203.4;
2. A prior offense which involves violation of California Heal#h and Safety Sections 11351,
11352, 11358 through 11363, 11378 through 11380, 11054, 11056, 11057, 11058, any other
violation{s} involving illegal possession for sale, or sales of a controlled substance, or equivalent
offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section
1203.4;
3. Any offense involving the use of force or violence upon another person;
4. Any offense involving sexual misconduct with children;
5. Any offense involving theft.
C. 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;
D. That the operation of the proposed massage establishn:ient is likely to be a hindrance to
the health, safety, welfare or interest of the people of the City;
E. That the applicant is lacking in the background qualifications to conduct a bona fide
massage establishment;
F. That the applicant has violated any provision of this chapter or any similar law, rule or
regulation of another public agency which regulates the operation of massage establishments.
9.06.080 Massage Establishment Employees Permit Requirements.
It is unlawful for any licensed massage establishment or managing employee to allow any
person to perform massage, bath or health treatment for any compensation unless the person
holds a valid massage therapist permit or MTO certificate.
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9.06.110 Massage Therapist Permit Criteria fur Issuance.
A massage therapist permit shall be issued to a. person who meets the following criteria:
A. Is a member in good standing of a State or nationally chartered organization devoted to
the massage specialty and therapeutic approach; and
B. Has completed one the following requirements:
1. Five hundred hours of instruction in a massage specialty and therapeutic approach at a
recognized school of massage;
2. Two hundred fifty hours of such instructi~~n and an additional five hundred documented
hours of practical experience in a massage specialty and therapeutic approach in one or a
combination of the following:
a. A primary office of and under the direct supervision of a medical professional licensed
by the State of California, specifically a physician, surgeon, chiropractor, osteopath, physical
therapist or nurse, while such medical professional is performing activities encompassed by such
license and is physically on the premises where the massage therapy is being administered;
3. Has taken and successfully passed the National Certification Board fox Therapeutic
Massage and Bodywork or the National Certification Commission for Acupuncture and Oriental
Medicine test module related to Asian Bodywork Therapy. The applicant must submit a current
certificate with the application to satisfy this crite~~ia.
9.06.120 Massage Therapist Practical Examin,~tion.
The applicant shall take and pass a written test and practical,performance examination
administered through a medical practitioner approved by the City of Cupertino wherein the
applicant has been required to demonstrate a basic; knowledge of anatomy, physiology, hygiene
and massage. If the applicant fails the practical e~cam, he/she shall be permitted to retake the
exam once, after at least thirty but no more than sixty days have elapsed from the date of the first
exam, provided that the applicant pays the applicable exam fees for a second time. Should the
applicant fail the exam a second time, the application shall be denied, and the applicant shall not
be permitted to apply again for a massage therapist permit for a period of one year. Applicants,
who have taken and successfully passed the National Certification Board for Therapeutic
Massage and Bodywork or the National Certification Commission for Acupuncture and Oriental
Medicine test module related to Asian Bodywork Therapy, shall be exempted from the Massage
Therapist Practical Examination. The applicant must submit a current certificate with the
application to be exempt. -This section does not apply to anyone possessing an MTO certificate.
9.06.160 Annual Medical Examination for Massage Therapist.
A. Any person who has been issued a massage therapist permit shall file with the City
Manager each year within sixty days of the anniversary date of the issuance of the permit an
updated certificate from a medical doctor stating that the permittee massage therapist has, within
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Ordinance No. 09-2046
sixty days immediately prior to the filing of the certificate, been examined and been found to be
free of any contagious or communicable disease set forth in Section 9.06.OSSE.
B. It is unlawfiil for any person who has neglected, failed, or refused to file a certificate
required by subsection A of this section to act as a massage therapist. Failure to submit the
required certificate shall be grounds for revocation of the permit.
C. Individuals who possess an MTO certificate are not subject to an annual medical
examination.
9.06.180 Outcall Massage Permit Application.
An outcall massage permit may be issued only to aCupertino-licensed massage therapist or
person in possession of an MTO certificate. An applicant for an outcall massage permit must
provide a list of all businesses and residences where the applicant will be performing outcall
massage and must keep the City Manager, or his/her designee, advised in writing of changes to
said list.
9:06.190 Outcall Massage Permit-Criteria.
Outcall massage may be performed only under the following criteria:
A. Corporate.
1. The massage treatment shall consist of "corporate" massage only as defined in Section
9.06.020;
2. Outcall "corporate" massage clients shall be owners and employees of the business at
which the massage therapist will be performing massage.
B. Residential. -
1. The massage treatment shall consist of corporate massage only as defined in Section
9.06.020;
2. "Residential" massage clients must possess a referral from a licensed physician, surgeon,
chiropractor, osteopath, naturopath, or other health care professional to the effect that treatment
in a licensed massage establishment is not recommended. A record of every such referral shall
be obtained and kept by the person rendering the services for a period of one year from date of
referral. Such record shall show the name and address of the doctor, the date and any
prescription number.
9.06.193 Operating Requirements for Massage Establishments.
Unless otherwise specified in this chapter, all massage establishments shall comply with the
following operating requirements:
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Ordinance No. 09-2046
A. Exterior Signs. A recognizable and legible sign shall be posted at the main entrance
identifying the business as a massage establishment. In addition, the sign shall comply with the
City sign ordinance.
B. Posting of Massage Establishment Licen:,e, Massage Therapist Permit, Managing
Employee Permit and MTO Certificate. A copy of the massage establishment license, massage
therapist permit{s), managing employee permits}, and MTO certificate(s) shall be posted in a
conspicuous place in such a manner that it can ea:;ily be seen by persons entering the
establishment.
C. Designation of Managing Employee. If file holder of the massage establishment license
does not personally manage the business during all hours of operation, he/she shall designate one
or more managing employees} who shall be in charge of the operation of the business during
his/her absence. If the managing employee(s) will personally provide massages at the business,
he/she must obtain a massage therapist permit or possess an MTO certificate.
D. Posting of Services Available and Fees..A list of all services available, the price thereof
and the length of time each service shall be performed, shall be posted or available in a
conspicuous place in such a manner that it can easily be seen by persons entering the
establishment. No other services, other than thosf: posted, shall be provided.
E. Payment/tips. Payment for massage services, and any tips, shall be paid for at the
designated reception area of the business establishment.
F. Alcohol Prohibited. No alcoholic beverages may be located on the premises of the
massage establishment while the business is open for the practice of massage.
G. Maintain Written Records. Every massage establishment shall keep a written record of
the date and hour of each service provided, the naJne and address of each patron and the service
received, and the name of the individual administering the service. Such records shall be open to
inspection only by officials of the City charged with enforcement of this chapter.. These records
may not be used for any other purpose than as records of service provided and may not be
provided to other parties by the massage establishment or service unless otherwise required by
law. Such records shall be retained on the premises of the massage establishment for a period of
two years.
H. Standard of dress for massage establishment employees. The holder of the massage
establishment permit, massage therapists, msasagE; practitioners, managing employees, and all
other employees of the massage establishment shall remain fully clothed in clean outer garments
while on the premises of the massage establishment. At a minimum such clothing shall be made
of nontransparent material and shall not expose the buttocks, genital area or breasts of any
employee or permit holder at any time.
I. Operating, Hours. No massage establishrr.~ent shall be kept open for business and no
massage therapist or massage practitioner shall administer massages after the hour often p.m. or
before the hour of seven a.m. Operating hours many be further restricted by the City Manager
pursuant to Section 9.06.200.
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Ordinance No. 09-204b
J. Mirrors Prohibited. In general, mirrors are prohibited in rooms where massages are
performed; however, one full length or small mirror may be mounted vertically to the wall, not
less than twenty inches from the floor.
K. Lighting Required. Massage establishments must be well-lighted at all times during
business hours. Rooms where massage services are provided must be adequately lighted when
occupied.
9.06.196 Massage Establishment Sanitary Conditions-Condition of Premises.
A. Required Maintenance of Massage Establishment. All premises and facilities of the
massage establishment shall be maintained in a clean and sanitary condition and shall be
thoroughly cleaned after each day of operation. The premises and facilities shall meet applicable
code requirements of the city, including but not limited to those related to the safety of structures,
adequacy of the plumbing, heating, ventilation, and waterproofing of rooms in which showers,
water, or steam baths are used.
B. Linens. All massage establishments shall provide clean laundered sheets, towels, and
other linen in sufficient quantity for use by their clients. Such linens -shall be laundered after
each use and stored in a sanitary manner. No common use of linens or towels shall be permitted.
Heavy white paper may be substituted for sheets on massage tables, provided such paper is used
only once for each client and is then discarded into a sanitary receptacle. Containers shall be
provided for the storage of all soiled linens.
C. Privacy Standards for Massage Rooms, Dressing Rooms, and Restrooms. Dressing
rooms and restrooms may only be used by clients of the same sex at the same time. The massage
establishment shall provide doors for all dressing rooms, and massage rooms. Draw drapes,
curtain enclosures, or accordion-pleated enclosures are acceptable in lieu of doors for dressing
rooms and massage rooms. _
9.06.198 Prohibited Acts.
A. Touching of Sexual and Genital Parts of Client During Massage. No holder of a
massage establishment license, massage therapist permit, MTO certificate, managing employee
permit, or any other employee of a massage establishment shall place either his/her hand or hands
upon, or touch with any part of his/her body, or with a mechanical device, a sexual or genital part
of any other person in the course of a massage, or massage a sexual or genital part of any other
person. Sexual and genital parts shall include the genitals, pubic area, anus, or perineum of any
person.
B. Uncovering and Exposure of Sexual and Genital Parts of Client Before, During or After
Massage. No holder of a massage establishment license, massage therapist permit, MTO
certificate, managing employee permit, or any other employee of a massage establishment shall
uncover and expose the sexual or genital parts of a client or themselves while engaged in the
practice of massage, or before or after a massage. This subsection does not prohibit a client from
turning over in the course of a massage, provided the massage therapist holds a towel, sheet,
blanket, or other drape over the client to protect his/her genital and sexual parts from exposure.
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Ordinance No. 09-2046
If the client exposes the genital area, the massage therapist or massage practitioner shall
immediately direct the client to cover him/herself. If the client refuses to. comply, the massage
therapist or massage practitioner shall inform the ~~lient that no further massage will be provided
and the client will be asked to leave the premises. If the client refuses to leave the premises, the
massage therapist or massage practitioner must unmediately leave the room and notify the
managing employee.
C. Outcall Massage Services. It is unlawful for airy massage establishment or massage
therapist or massage practitioner to provide outcal l massage services within the City unless it
occurs at the client's residence, and the client possesses a referral from a licensed physician,
surgeon, chiropractor, osteopath, naturopath or other health care professional stating that the
treatment in a licensed massage establishment is riot recommended and the medical reason why it
is not recommended, or at a business establishme~it in which clients shall be owners and
employees of the business and the massage treatment consists of a "corporate massage" as
defined in Section 9.06.020. A record of every such referral shall be obtained and kept by the
individual rendering the service for a period of one year from the date of referral. Such record
shall show the full legal name and street address of the physician, surgeon, chiropractor
osteopath, naturopath or other health care professional, the date, and any prescription number.
Individuals providing outcall massage must comply with all provisions of this chapter.
D. Transfer of Massage Establishment License, Massage Therapist Permit and Managing
Employee Permit. No permit issued pursuant to this chapter shall be transferred or assigned in
any matter, whether by authorization of law or otherwise, from any location to location or from
person to person, except that a person possessing ;~ massage therapist permit, issued by the City,
shall be able to move from one employer to another without filing a new application or paying a
new fee, so long as the permit holder notifies the (~ity Manager or his/her designee, in writing, of
the change in his/her employment within five business days of such change. Failure to make this
notification within five business days shall be gro~.inds for suspension, revocation, or denial of
the permit.
9.06.200 Suspension orRevocation-Grounds.
Any license or permit issued under this chapter may be suspended or revoked by the City
Manager for any reason which would justify the rf;fusal to grant a license or permit originally.
9.06.210 Suspension or Revocation-Notice-Hearing.
The holder of the license or permit shall be given prompt notice of revocation or suspension
of the license or permit and shall immediately desist from engaging in the activity. The notice
shall fix a time and place, not less than five or more than thirty days after service thereof, at
which time the holder of the license or permit ma;r appear before the City Manager and be
granted a hearing upon the merits of such suspension or revocation. If after such hearing the
license or permit is ordered revoked, the holder shall have the right to appeal such action to the
City Council in accordance with Section 9.06.220 of this chapter.
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Ordinance No. 09-2046
9.06.220 Appeals.
Any person whose license or permit has been denied, suspended or revoked may appeal the
administrative decision of the City Manager, or designated representative, by ding a written
notice of appeal with the City Clerk within five business days after receipt of notice of the
decision. Such appeal shall be heard by the City Council, which may affirm, amend or reverse
the order, or take other action deemed appropriate. The Clerk shall give written notice of the
time and place of the heating to the appellant and any other person requesting notice. In
conducting the hearing, the City Council shall not be limited by the technical rules of evidence.
Any person requesting an appeal shall pay a nonrefundable fee set forth in the City fee schedule
at the time of filing the appeal.
9.06.230 Inspection by Officials-Premises.
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,
and to ascertain compliance with the provisions of this chapter. A warrant shall be obtained
whenever required by law.
9.06.240 Violation-Public Nuisance.
Violation of any provisions of this chapter constitutes a public nuisance which may be abated
pursuant to Chapter 1.09 of the Cupertino Municipal Code.
9.05.250 Violation-Penalty.
Any person who violates the provisions of this chapter shall be guilty of a misdemeanor and
upon conviction thereof shall be punished as provided in Chapter 1. I2 of the Cupertino
Municipal Code.
9.05.250 Continuing Violations-Alternative Remedies.
Nothing in this chapter shall be deemed to prevent the City Council from directing the City
Attorney to commence civil action to enjoin the continued violation of any provisions of this
chapter or to abate a nuisance, as an alternative, or in conjunction with any other civil or criminal
proceedings provided for herein.
Publication Clause
The City Clerk shall cause this ordinance to be published at least once in a newspaper of
general circulation published and circulated in the City within 15 days after its adoption, in
accordance with Government Code Section 36933, shall certify to the adoption of this ordinance
and shall cause this ordinance and her certification, together with proof of publication, to be
entered in the Book of Ordinances of the Council of this City.
IS
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Ordinance No. 09-2046
INTRODUCED at a regular meeting of the; City Council of the City of Cupertino the 7th
day of July 2009 and ENACTED at a regular meeting of the City Council of the City of
Cupertino the of _ 2009, by the following vote:
PASSED:
Vote: Members of the City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST: APPROVED:
City Clerk
Mayor
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