2009-64 Massage Services Readoption ORDINANCE NO. 2009-64
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MENIFEE
REPEALING CHAPTER 5.01 OF THE MENIFEE MUNICIPAL CODE
REGULATING MASSAGE SERVICES AND READOPTING IT AS CHAPTER 5.45 OF THE
MENIFEE MUNICIPAL CODE PROVIDING FOR LICENSING OF MASSAGE BUSINESSES
AND ESTABLISHMENTS
The City Council of the City of Menifee does ordain as follows:
Section 1. FINDINGS. The City Council of the City of Menifee hereby finds that:
A. On or about December 16, 2008, the City of Menifee adopted Chapter 5.01
providing for the local licensing of massage therapists and practitioners as well as
the establishments where they work; and
B. Thereafter, effective September 1, 2009, SB 731 (Chapter 384, Stats. 2009) the
State Legislature, added Sections 4600 and following to the Business and
Professions Code to provide for statewide certification of massage therapists
through the California Massage Therapy Council and preempted a city or county's
ability to license such therapists;
C. SB 731 also limits the authority of cities to license massage businesses and
establishments and, therefore, the provisions of Chapter 5.01 require revision to
comply with state law.
D. This Chapter is enacted pursuant to the provisions of sections 51030-51034 of the
California Government Code, Sections, 4600-4620 and 16000 of the California
Business&Professions Code, and Article XI, Section 7 of the California Constitution
and is intended to protect public health, safety and welfare by confirming that
massage therapists or business are not utilized for unlawful activity.
E. The provisions of this Chapter are not intended to be exclusive and compliance
therewith shall not excuse noncompliance with any state or local laws or regulations
that are uniformly applied to other professional or personal services businesses,
including, but not limited to: all zoning regulations, business license provisions,
building code, and fire, electrical, plumbing, and health and safety code laws and
regulations applicable to the professional or personal services businesses.
F. By adopting this Chapter, the City Council does not intend to regulate in any area
preempted by state or local law, including but not limited to, Chapter 10.5
(commencing with Section 4600) of Division 2 of the California Business and
Professions Code.
Section 2. Chapter 5.01 of the Menifee Municipal is repealed in its entirety and Chapter
5.45 of the Menifee Municipal Code is adopted to read as follows:
City of Menifee Ordinance No. 2009-64
Licensing of Massage Businesses
CHAPTER 5.45
LICENSING OF MASSAGE BUSINESSES AND ESTABLISHMENTS
5.45.010 Definitions.
5.45.020 Massage Therapy License Required
5.45.030 Exemptions from Chapter.
5.45.040 Licensing of Massage Business or Establishment.
5.45.050 Hours of Operation.
5.45.060 Minors.
5.45.070 Physical Facility and Building Code Requirements.
5.45.080 Health and Safety Requirements.
5.45.090 Attire and Physical Hygiene Requirements
5.45.100 Inspection by Government Officials.
5.45.110 Owner and Operator Responsibility; Denial, Revocation, Restriction
or Suspension of Business License.
5.45.120 Remedies Cumulative; Each Day A Separate Offense.
5.45.130 Public Nuisance.
5.45.140 Criminal Penalties.
5.45.150 Civil Injunction.
5.45.160 Administrative Fines and Costs.
5.45.170. Authorization to Verify
5.45.010 DEFINITIONS.
A. California Massage Therapy Council. The California Massage Therapy Council
("CMTC") is the organization responsible for facilitating and implementing Chapter
10.5 (commencing with Section 4600) of Division 2 of the California Business and
Professions Code, affecting Massage Therapists in California.
B. CMTC Certificate. The term "CMTC Certificate" shall mean the certificate issued
by the California Message Therapy Council to Massage Therapists pursuant to
subdivision (c) of Section 4601 of the California Business and Professions Code,
and to Massage Practitioners pursuant to subdivision (b) of Section 4601 of the
California Business and Professions Code or subdivision (a)or(c)of Section 4604
of the California Business and Professions Code.
C. Compensation. The term"Compensation"shall mean the payment, loan,advance,
donation, contribution, deposit, exchange, or gift of money or anything of value.
D. Employed or Retained By. The term "Employed or Retained By" shall include:
1. Any Person who is a directly paid employee of a Massage Business
or Establishment;
2. Any Person whose association with a Massage Business or
Establishment is that of an independent contractor who receives
Compensation for Massage Therapy provided to patrons of the
Massage Business or Establishment; and
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Licensing of Massage Businesses
3. Any Person who receives a referral of patrons from a Massage
Business or Establishment and who at any time before or after the
referral arranges in any way for Compensation to flow to the Massage
Business or Establishment or any of its Owners (regardless of
whether the parties involved acknowledge that Compensation is
flowing in exchange for the referral, or such parties record such
Compensation in their financial records).
E. Massage, Massage Therapy, Bodywork. The terms "Massage," "Massage
Therapy,"and"Bodywork,"are used in this Chapter interchangeably and shall mean
the application of various techniques to the muscular structure and soft tissues of
the human body, including but not limited to: any method of pressure or friction
against or stroking, kneading, rubbing, tapping, compression, pounding, vibrating,
rocking or stimulating of the external surfaces of the body with hands or with any
object or appliance. The terms "Massage," "Massage Therapy," and "Bodywork,"
specifically exclude the diagnosis, prescription, intentional manipulation or
adjustments of the skeletal structure, or any other service, procedure or therapy
which requires a license to practice (e.g., chiropractic, osteopathy, orthopedics,
physical therapy, podiatry, or medicine), hypnosis, naturopathic, colonic irrigation,
acupuncture, vacuum cupping, nutritional or dietary counseling, detoxification
programs, yoga, exercise, Vichy showers and spiritual healing.
F. Massage Business or Establishment. The term "Massage Business or
Establishment"shall mean any sole proprietorship, business or establishment which
offers Massage Therapy in exchange for Compensation,whether at a fixed place of
business or at a location designated by the patron. Any business or establishment
which offers any combination of Massage Therapy and bath facilities, including but
not limited to, showers, baths,wet and dry heat rooms, pools and hot tubs, shall be
deemed a Massage Business or Establishment under this Chapter. For purposes
of this Chapter, "Massage Business or Establishment" includes "acupressure" or
"day spa" establishments.
G. Massage Therapist. The term "Massage Therapist" shall mean any Person to
whom a CMTC Certificate has been issued pursuant to subdivisions (b) or (c) of
Section 4601 or subdivisions (a) or (c) of Section 4604 of the California Business
and Professions Code and who is engaged in the practice of Massage Therapy for
Compensation. As used in this Chapter, the terms "Bodyworker," "Bodywork
Therapist," or"Massage and Bodywork Therapist," or"Massage Practitioner"shall
have the same meaning as "Massage Therapist".
H. Person. The term "Person" shall mean any individual, proprietorship, partnership,
corporation, firm, association,joint stock company, or combination of the above in
whatever form or character.
I. Recognized School of Massage. The term"Recognized School of Massage"shall
mean a facility that teaches the theory, ethics, practice, profession and work of
Massage Therapy and that is approved by the California Massage Therapy Council
("CMTC'). The term"Recognized School of Massage"shall not include a school or
institution of learning offering or allowing correspondence course credit not requiring
actual attendance at class. The City shall have the right to confirm that all sole
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Licensing of Massage Businesses
practitioners and Massage Therapists and Practitioners employed by a Massage
Business or Establishment actually attended class at a Recognized School of
Massage.
5.45.020 MASSAGE THERAPY LICENSE REQUIRED
Except where a specific exemption is applicable pursuant to this Chapter, it is a
violation of this Chapter for any Person to engage in the practice of Massage Therapy and for any
Massage Business or Establishment to employ or retain such a Person, unless such Person first
obtains and continues to maintain in full force and effect a valid CMTC Certificate.
5.45.030. EXEMPTIONS FROM CHAPTER. Unless otherwise specified,this Chapter
shall not apply to:
A. Persons holding a valid certificate to practice the healing arts under the laws of the
State of California including, but not limited to, holders of medical degrees such as
physicians, surgeons, chiropractors, osteopaths, naturopaths, podiatrists,
acupuncturists, physical therapists, registered nurses and licensed vocational
nurses;
B. State-licensed hospitals, nursing homes, sanitariums, physiotherapy
establishments, or other state-licensed physical or mental health facilities and their
employees;
C. Recognized Schools of Massage and their students in training, provided such
students provide Message Therapy only under the direct personal supervision of an
instructor;
D. Barbers and cosmetologists who are licensed under the laws of the State of
California while providing Massage Therapy within the scope of their licenses,
provided that such Massage Therapy is limited solely to the neck, face, scalp, feet
and lower limbs up to the knees, and hands and arms, of their patrons; and
E. Persons who provide Massage Therapy to amateur, semi-professional or
professional athletes or athletic teams,facilities or events, so long as such persons
do not practice Massage Therapy as their primary occupation in the City of Menifee.
5.45.040 LICENSING OF MASSAGE BUSINESS OR ESTABLISHMENT
A. Every Massage Business or Establishment applying for a City business license
shall meet the requirements of this Chapter before such business license may be
issued, and shall continue to meet such requirements or be subject to suspension
or revocation of such license. Every Massage Business or Establishment shall:
1. Provide the City Clerk or her designee with a copy of the CMTC Certificate
of every Person who is Employed or Retained by the Massage Business or
Establishment to provide Massage Therapy,within thirty(30)calendar days
of the commencement of such Person's period of employment; and
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Licensing of Massage Businesses
2. Maintain on its premises a copy or other evidence of each such CMTC
Certificate for review by City representatives; and
3. Apply for a new business license in the event that the Massage Business or
Establishment changes names, management or transfers the business to
another Person.
5.45.050. HOURS OF OPERATION. No Massage Business or Establishment shall
provide Massage Therapy to the public for Compensation between the hours of 10:00 p.m.and 7:00
a.m. of the following day.
5.45.060. MINORS. It shall be unlawful for any Massage Business or Establishment,
and for any Massage Business or Establishment to:
A. Employ or retain any Person who is under the age of eighteen (18)years to provide
any Massage Therapy to the public for Compensation; or
B. Provide Massage Therapy to any Person who is under the age of eighteen (18)
years, except at the special instance and request of a parent or other Person in
lawful custody of the minor.
5.45.070. PHYSICAL FACILITY AND BUILDING CODE REQUIREMENTS. The
following physical facility requirements shall be applicable to all Massage Businesses or
Establishments:
A. All doors to dressing rooms, toilet rooms and Massage Therapy rooms or cubicles
shall open inward and shall be self-closing. Draw drapes, curtain enclosures, or
accordion-pleated closures in lieu of doors are acceptable on all inner dressing
rooms and Massage Therapy rooms or cubicles.
B. Minimum lighting equivalent to at least one forty-watt light shall be provided in each
Massage Therapy room or cubicle.
C. A massage table shall be used for all Massage Therapy, with the exception of
"Thai,""Shiatsu,"and similar forms of Massage Therapy,which may be provided on
a padded mat on the floor, provided the patron is fully attired in loose clothing,
pajamas, scrubs or similar style of garment. The tables should have a minimum
height of twenty-eight (28) inches. Beds, floor mattresses and waterbeds are not
permitted on the premises of the Massage Business or Establishment.
D. All locker facilities, if any, that are provided for the use of patrons shall be fully
secured for the protection of the patron's valuables, and the patron shall be given
control of the key or other means of access.
E. The Massage Business or Establishment shall comply with all local and state
building standards applicable to other professional and personal services
businesses, including, but not limited to, the following:
1. Have a system of adequate ventilation in accordance with the provisions of
Section 705 of the Uniform Building Code of 1982, as referenced in Part 2,
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Licensing of Massage Businesses
Chapter 7 of the matrix adoption tables, of Title 24 of the California Code of
Regulations.
2. Have a supply of hot and cold running water in accordance with Part 5,
Section 1001(d)(1), of Title 24 of the California Code of Regulations.
3. Have a supply of potable drinking water in accordance with Part 5, Section
1001(d)(3), of Title 24 of the California Code of Regulations.
4. Provide hand washing facilities in accordance with Part 5, Section 1001(d)
(2), of Title 24 of the California Code of Regulations.
5. Provide public toilet rooms in accordance with Part 5, Sections 910(b) and
910(c), and Table No. C-1, of Title 24 of the California Code of Regulations.
5.45.080. HEALTH AND SAFETY REQUIREMENTS. The following health and safety
requirements shall be applicable to all Massage Businesses or Establishments:
A. The Massage Business or Establishment shall at all times be equipped with an
adequate supply of clean sanitary towels, coverings and linens, all massage tables
shall be covered with a clean sheet or other clean covering for each patron. After a
towel, covering or linen has once been used it shall be deposited in a closed
receptacle and not used until properly laundered and sanitized. Towels, coverings
and linens shall be laundered either by regular commercial laundering or by a
noncommercial laundering process which includes immersion in water at least
140°F for not less than fifteen (15) minutes during the washing or rinsing operation.
Clean towels, coverings and linens shall be stored in closed, clean cabinets when
not in use.
B. All Massage Therapy rooms or cubicles, wet and dry heat rooms, toilet rooms,
shower compartments, and hot tubs and pools shall be thoroughly cleaned and
disinfected as needed, and at least once each business day the premises are open
and such facilities are in use. All bathtubs shall be thoroughly cleaned and
disinfected after each use.
C. All liquids, creams, or other preparations used on or made available to patrons shall
be kept in clean and closed containers. Powders may be kept in clean shakers. All
bottles and containers shall be distinctly and correctly labeled to disclose their
contents. When only a portion of a liquid, cream or other preparation is to be used
or made available to a patron, it shall be removed from the container in such a way
as not to contaminate the remaining portion.
D. All bathrobes, bathing suits and other garments that are provided for the use of
patrons shall be either fully disposable and shall not be used by more than one
patron, or shall be laundered after each use pursuant to Paragraph A of this
section.
E. All combs, brushes, and or other personal items of grooming or hygiene that are
provided for the use of patrons shall be either fully disposable and shall not be used
by more than one patron, or shall be fully disinfected after each use.
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Licensing of Massage Businesses
F. No patrons shall be allowed to use any shower facilities of the Massage Business or
Establishment unless such patrons are offered slip-resistant sandals or flip-flops
while in the shower compartment. All footwear such as sandals or flip-flops that are
provided for the use of patrons shall be either fully disposable and shall not be used
by more than one patron, or shall be fully disinfected after each use.
G. The patron's genitals, pubic area, anus, gluteal fold, and female patron's breasts
below a point immediately above the top of the areola must be fully draped at all
times while any employee of the Massage Business or Establishment is in the
Massage Therapy room or cubicle with the patron. No Massage Therapy shall be
provided to a patron that results in intentional contact, or occasional and repetitive
contact with the genitals, anus, gluteal fold, or areola of a patron.
5.45.090. ATTIRE AND PHYSICAL HYGIENE REQUIREMENTS. The following attire
and physical hygiene requirements shall be applicable to all Massage Therapists and Massage
Practitioners who are Employed or Retained by a Massage Business or Establishment or are sole
practitioners within the municipal boundaries of the City of Menifee:
A. All Persons shall be clean and wear clean and sanitary outer garments at all times.
All outer garments shall be of a fully opaque, nontransparent material and provide
complete covering from at least the mid thigh to two (2) inches below the
collarbone. The midriff may not be exposed.
B. All Persons shall thoroughly wash their hands with soap and water or any equally
effective cleansing agent immediately before providing Massage Therapy to a
patron. No Massage Therapy shall be provided upon a surface of the skin or scalp
of a patron where such skin is inflamed, broken (e.g., abrased, cut)or where a skin
infection or eruption is present.
C. No Person afflicted with an infection or parasitic infestation capable of being
transmitted to a patron shall knowingly provide Massage Therapy to a patron, or
remain on the premises of a Massage Business or Establishment while so infected
or infested. Infections or parasitic infestations capable of being transmitted to a
patron include, but are not limited to: (1) cold, influenza or other respiratory illness
accompanied by a fever, until 24 hours after resolution of the fever or otherwise as
provided by public health officials; (2)streptococcal pharyngitis("strep throat"), until
24 ours after treatment has been initiated and 24 hours after resolution of fever; (3)
purulent conjunctivitis ("pink eye"), until examined by a physician and approved for
return to work; (4) pertussis("whooping cough"), until five days of antibiotic therapy
has been completed; (5)varicella ("chicken pox"), until the sixth day after onset of
rash or sooner if all lesions have dried and crusted; (6)mumps, until nine days after
onset of paratid gland swelling; (7) tuberculosis, until a physician or local health
department authority states that the Person is noninfectious; (8)impetigo(bacterial
skin infection), until 24 hours aftertreatment has begun; (9)pediculosis(head lice),
until the morning after first treatment; and (10) scabies ("crabs"), until after
treatment has been completed. Blood-borne diseases, such as HIV/AIDS and
hepatitis B(HBV), shall not be considered infectious or communicable diseases for
the purpose of this paragraph.
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Licensing of Massage Businesses
5.45.100. INSPECTION BY GOVERNMENT OFFICIALS.
A. All Massage Businesses or Establishments, as a condition of their business
licenses, shall permit representatives of the City, Riverside County Health
Department, Police Department, or Fire Department, to conduct reasonable
inspections of all areas during the regular business hours of the Massage Business
or Establishment, for the purpose of verifying CMTC certificates and ensuring
compliance with state and local law, including, but not limited to, Chapter 10.5
(commencing with Section 4600)of the California Business and Professions Code,
city zoning requirements, city building code requirements, the requirements
delineated in this Chapter, or other applicable fire and health and safety
requirements.
B. Nothing in this section shall be deemed to prohibit the above-described government
officials from pursuing any and all available legal remedies to secure entry into and
reasonable inspection of the premises of the Massage Business or Establishment if
such entry is refused.
C. It is a violation of this Chapter for the Massage Business or Establishment to
prohibit or interfere with such lawful inspection of the premises at any time it is open
for business.
5.45.110. OWNER AND OPERATOR RESPONSIBILITY: DENIAL, REVOCATION,
RESTRICTION OR SUSPENSION OF BUSINESS LICENSE. The following provisions
shall apply to all Massage Businesses or Establishments:
A. For the purpose of enforcement of the requirements of this Chapter, all Owners and
Operators of the Massage Business or Establishment shall be responsible for the
conduct of all of its employees, agents, independent contractors or other
representatives, while on the premises of the Massage Business or Establishment
or providing Massage Therapy.
B. Notwithstanding the provisions of Chapter 10.5(commencing with Section 4600)of
Division 2 of the California Business and Professions Code, the City, or its
authorized agent, may:
1. Require the Massage Business or Establishment in its application for a
business license, or for the renewal of a business license, to provide
information relevant to the activities of the Massage Business or
Establishment regulated by this Chapter;
2. Make reasonable investigations into the information provided in the
application for a business license;
3. Verify the CMTC Certificates of the Massage Therapists and Practitioners
employed by the Massage Business or Establishment;
3. Conduct reasonable safety and health inspections of the Massage Business
or Establishment;
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City of Menifee Ordinance No. 2009-64
Licensing of Massage Businesses
4. Charge a business licensing fee sufficient to cover the costs of the business
licensing activities regulated by this Chapter; and
5. Deny, revoke, restrict or suspend a business license for the following
causes: (a) an employee, agent, independent contractor or other
representative of the Massage Business or Establishment has committed a
violation of this Chapter, or of Chapter 10.5 (commencing with Section
4600) of Division 2 of the California Business or Professions Code; (b)the
Massage Business or Establishment has provided materially false
information in its application for a business license; (c) any other reason
allowed by law.
5.45.120. REMEDIES CUMULATIVE; EACH DAY A SEPARATE OFFENSE. Any
Person subject to this Chapter who personally, or through an agent, employee, independent
contractor or other representative, violates any provision of this Chapter shall be guilty of a separate
offense for each and every day during any portion of which any such violation is committed,
continued or permitted by such Person. All remedies provided herein shall be cumulative and not
exclusive.
5.45.130. PUBLIC NUISANCE. Any Massage Establishment or Business operated,
conducted or maintained contrary to the provisions of this Chapter shall be, and the same is
declared to be, unlawful and a public nuisance, and the City may, in addition to or in lieu of
prosecuting a criminal or administrative action hereunder, commence an action or actions,
proceeding or proceedings for the abatement, removal or enjoinment thereof, in the manner
provided by law, and shall take such other steps and shall apply to such court or courts as may
have jurisdiction to grant such relief as will abate or remove such Massage Establishments or
Businesses and restrain and enjoin any Person from operating, conducting or maintaining a
Massage Establishment or Business contrary to the provisions of this Chapter.
5.45.140. CRIMINAL PENALTIES. Any Person subject to this Chapter who personally,
or through an agent, employee, independent contractor or other representative, violates any
provision of this Chapter commits a misdemeanor. Any Person convicted of a misdemeanor shall
be subject to punishment by fine and or imprisonment to the maximum extent permitted by
California state law.
5.45.150. CIVIL INJUNCTION. The violation of any provision of this Chapter shall be
and is hereby declared to be contrary to the public interest and shall, at the discretion of the City,
create a cause for injunctive relief.
5.45.160. ADMINISTRATIVE FINES AND COSTS. In addition to the remedies set
forth above, any Person subject to this Chapter who personally, or through an agent, employee
independent contractor or other representative, violates any provision of this Chapter may be
administratively cited.
5.45.170. AUTHORIZATION TO VERIFY. By engaging in the practice of Massage
Therapy within the borders of the City of Menifee,and applying for a business license or renewal of
a business license, each Massage Business or Establishment endorses the provisions of this
Chapter, agrees to cooperate with the City regarding such provisions and provides authorization for
the City, its agents and employees, and the County of Riverside, its agents and employees,to verify
all information requested in the Massage Business'or Establishment's business license application
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Licensing of Massage Businesses
or renewal and to engage in reasonable investigations associated with the City's effort to enforce
the provisions of this Chapter. Such activities may include, but are not limited to, requesting
appropriate information from the California Massage Therapy Council.
Section 3. SEVERABILITY.
If any section, subsection, phrase or clause of this ordinance is for any reason held to be
unconstitutional, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would have passed this ordinance and each
section, subsection, phrase, or clause thereof irrespective of the fact that any one or more sections,
subsections, phrases, or clauses be declared unconstitutional.
Section 4. PUBLICATION AND EFFECTIVE DATE.
This ordinance shall be published in accordance with the provisions of Government Code
Section 36933. This ordinance shall be effective 30 days from the date of its adoption.
PASSED, APPROVED AND ADOPTED this �day of the following
vote: Q
AYES:&Aw-t�� C 7 �..W
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NOES:` Q -
ABSENT: Q �
APPROVED:
Wallace W. Edgerton tv
Mayor
ATTEST:
96-Lz/�
Kathy Bennett, City Clerk
Approved as to form:
Elizab'LAh L. Marlyn, City Attorney
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