O2290City Council Meeting: July 14, 2009
Santa Monica, California
ORDINANCE NUMBER 2290 (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTER 6.104 OF THE SANTA MONICA MUNICIPAL
CODE RELATING TO MASSAGE REGULATIONS
WHEREAS, on May 27, 2008, the City of Santa Monica adopted Ordinance
Number 2265 amending Chapter 6.104 of the Santa Monica Municipal Code relating to
massage regulations; and
WHEREAS, thereafter; the State of California adopted Senate Bill No. 731,
effective September 1, 2009, also relating to massage regulations; and
WHEREAS, Senate Bill No. 731 limits the City's ability to require State certified
massage technicians to obtain an additional license, permit, or other City authorization;
and
WHEREAS, Senate Bill No. 731 also limits the City's ability to apply certain
regulations to State certified massage technicians and certain massage establishments;
and
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WHEREAS, the City seeks to conform its massage regulations to the
requirements of Senate Bill No. 731, while still exercising local control to the maximum
extent allowed by State law;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 6.104.005 is hereby added to Chapter 6.104 of the Santa
Monica Municipal Code to read as follows:
Section 6.104.005. Applicability of Chapter.
Except as specifically provided in this section, this
Chapter shall apply to all Massage Establishments and to all
Massage Technicians. Nothing contained in this Chapter
shall require any person with a Massage Technician Permit
to obtain State Certification, and any Massage Technician
may renew his or her Massage Technician Permit in
accordance with this Chapter without obtaining State
Certification.
(a) No Certified Massage Technician shall be
required to obtain a Massage Technician Permit under
section 6.104.050 of this Chapter or to comply with sections
6.104.060, 6.104.070, or 6.104.080 of this Chapter.
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(b) No Certified Massage Establishment shall be
required to comply with subsection (2) of section 6.104.040
or subsections (c), (f), or (h) of section 6.104.090 of this
Chapter.
(c) No Certified Sole Proprietorship shall be
required to obtain an Operator's Permit under section
6.104.020 of this Chapter or to comply with sections
6.104.030, 6.104.040, 6.104.080, or to comply with
subsections (c) or (f) of section 6.104.090 of this Chapter.
(d) The provisions of this Chapter shall not apply
to any person who is a state licensed physician, surgeon,
osteopath, physical therapist, or occupational therapist, or to
any registered nurse working on the premises of and under
the direct supervision of a state licensed physician, surgeon,
or osteopath.
SECTION 2. Section 6.104.010 is hereby amended to read as follows:
Section 6.104.010. Definitions.
The following words and phrases as used in this
Chapter shall have the following meanings:
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(a) Certified Massage Establishment. Any
Massage Establishment that employs or uses any only
Certified Massage Technicians to perform Massage
services.
(b) Certified Massage Technician. Any Massage
Technician who has a valid, current State Certification, and
who is practicing consistent with the qualifications
established by his or her State Certification.
(c) Certified Sole Proprietorship. Any Sole
Proprietorship where the owner has State Certification and is
the only person employed by that business to provide
Massage services.
(d) Massage. Any method of pressure on or
friction against, or stroking, kneading, rubbing, tapping,
pounding, or stimulating the external parts of the body with
the hands or other parts of the body, with or without the aid
of any mechanical or electrical apparatus or appliances, or
with or without supplementary aids such as rubbing alcohol,
liniments, antiseptics, oils, powder, creams, lotions,
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ointments, or other similar preparations commonly used in
this practice.
(e) Massage Establishment. Any business where
any individual, firm, association, partnership, corporation, or
combination of individuals, engages in, conducts, carries on,
or permits to be engaged in or conducted, for money or any
other consideration, Massage or health treatments involving
Massages including, but not limited to, those businesses that
provide Massage accessory to their principal permitted use,
such as aromatherapy, beauty salon, health club, beach
club, skin care salon, acupuncture, chiropractic office or day
spa. Unless otherwise specified in this Chapter, any
reference to Massage Establishment shall include Certified
Massage Establishment.
(f) Massage Technician. Any person who
administers a Massage to another person in exchange for
money or any other consideration.
(g) Massage Technician Permit. The permit
required to administer Massage for money or any other
consideration.
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(h) Off-Premises Massage. A Massage conducted
for money or any other consideration at a location other than
a Massage Establishment.
(i) Off-Premises Massage Technician. Any
person who administers Off-Premises Massage to another
person in exchange for money or other consideration.
Q) Operator. A person or entity who holds an
Operator's Permit for a Massage Establishment.
(k) Operator's Permit. The permit required to
operate a Massage Establishment.
(I) Responsible Employee. Any person
designated by the Operator to conduct day-to-day operations
of the Massage Establishment, provided such person holds
an Operator's Permit or a Massage Technician Permit, or is
a Certified Massage Technician.
(m) Sole Proprietorship. Any business where the
owner is the only person employed by that business to
provide Massage services.
(n) State Certification. Certification issued
pursuant to Chapter 10.5 of the California Business and
Professions Code.
SECTION 3. Section 6.104.015 is hereby added to Chapter 6.104 of the Santa
Monica Municipal Code to read as follows:
Section 6.104.015. Business license required.
(a) Operators. Every Operator of a Massage.
Establishment shall obtain a business license pursuant to
Chapter 6.04 of this Code.
(b) Massage Technicians. Every Massage
Technician who is an independent contractor as defined in
section 6.04.010(e) of this Code or any Sole Proprietorship
shall obtain a business license pursuant to Chapter 6.04 of
this Code.
SECTION 4. Section 6.104.020 is hereby amended to read as follows:
Section 6.104.020. Operator's Permit required.
Except as provided for in Section 6.104.170, no
person shall operate a Massage Establishment within the
City without first obtaining an Operator's Permit pursuant to
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the provisions of this Chapter and complying with all other
applicable local and state laws, including, but not limited to,
laws establishing land use restrictions and all red light
abatement provisions set forth in Penal Code Sections
11225 through 11235 regarding the operation of a Massage
Establishment.
SECTION 5. Section 6.104.030 is hereby amended to read as follows:
Section 6.104.030. Application and examination
for Operator's Permit.
Any person may apply for an Operator's Permit for a
Massage Establishment by filing a written application with
the Finance Department of the City on a form prepared by
the Chief of Police, paying the filing fees established by the
City, and passing a written examination administered by the
City. The application shall be completed and signed by the
owner of the proposed Massage Establishment, if a Sole
Proprietorship; one general partner, if the owner is a
partnership or LLP; one officer or one director, if the owner is
a corporation or LLC; one participant, if the owner is a joint
venture; or one trustee if the owner is a trust. The application
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shall be deemed complete if it contains or is accompanied by
the following:
(a) A description of the type of ownership of the
business.
(1) Sole Proprietorship. If the applicaht is a
Sole Proprietorship; the applicant shall state his or her name
and address of residence on the application.
(2) Partnership. If the applicant is a
partnership of any kind, the applicant shall set forth the
name and address of residence of each of the partners,
including limited partners, on the application. If the applicant
is a limited partnership, the applicant shall also attach to the
application a copy of its certificate of limited partnership filed
with the Secretary of State. If one or more of the partners is
a corporation, the provisions of this section pertaining to
corporations shall apply in addition to this subsection.
(3) Corporation. If the applicant is a
corporation, the name of the corporation shall be set forth
exactly as shown in its articles of incorporation, together with
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the state and date of incorporation, the names and residence
addresses of each of the corporation's current officers and
directors, and of each stockholder holding more than five
percent (5%) of the stock of that corporation, and the name
and address of the corporation's current agent for service of
process.
(4) Designated officer or partner. An
applicant corporation or partnership shall designate one
officer or general partner to act as the responsible managing
officer and that person shall complete and sign. all forms
required of an individual applicant by this Chapter. The
responsible managing officer may be different from the
Responsible Employee.
(b) A statement containing the precise name
under which the Massage Establishment will be conducted
and the complete address and all telephone numbers of the
Massage Establishment.
(c) A complete list of the names and current
residence addresses of all proposed Massage Technicians,
other employees, and other persons working in the Massage
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Establishment, with a description of the job duties or function
of each person.
(d) The name and current residence addresses of
the Responsible Employee proposed to be principally in
charge of th,e operation of the Massage Establishment, if that
person is different from the Operator.
(e) The following personal information and
identification concerning the applicant, if the applicant is an
individual, or the responsible managing officer, if the
applicant is an entity:
(1) Name and complete residence address;
(2) Two immediately prior residence addresses;
(3) Date of birth;
(4) Height; weight, color of hair and eyes, and
gender;
(5) The Massage or similar business history and
experience of the applicant, including but not limited to,
whether or not such person, in previously operating a
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Massage Establishment or similar business in this City or
any other city or state under license or permit, has had such
license or permit denied, revoked, or suspended, and the
reasons therefor;
(6) All criminal convictions including pleas of nolo
contendere within the last ten years, including those which
have been dismissed or expunged under the provisions of
Section 1203.4 of the Penal Code, but excluding infraction
violations, and the date of each such conviction or plea and
the sentence therefor;
(7) A valid California driver's license or valid
California identification card;
(&) Two front-faced portrait photographs at least
two inches by two inches in size taken by.the Police
Department;
(9) A complete set of fingerprints taken by the
Police Department;
(10) The name and address of the owner and
lessor of the real property upon which or in which the
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Massage Establishment is to be conducted. In the event that
the applicant is not the legal owner of the real property, the
application must be accompanied by a copy of the lease and
a notarized acknowledgement from the owner of the real
property that a Massage Establishment will be located on the
real property;
(11) A site plan depicting the building and unit
proposed for the Massage Establishment and a dimensional
interior floor plan depicting how the Massage Establishment
will comply with this Chapter and other applicable laws,
including all health, zoning, fire and safety requirements and
standards;
(12) Such other information and identification as is
reasonably deemed necessary by the Chief of Police to fulfill
the purposes of this Chapter; and
(13) A statement in writing by the applicant
authorizing the City, its agents and employees to seek
verification of the information contained in the application
and attesting that the applicant certifies under penalty of
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perjury that all information contained in the application is true
and correct.
Prior to the issuance of an Operator's Permit, the
applicant, or responsible managing officer if the applicant is
a corporation or partnership, must pass a written
examination given by the City. The examination shall be
given on a monthly basis and shall test the applicant or
responsible managing officer on the requirements of this
Chapter to ensure substantial .understanding of the
Operator's and the Responsible Employee's duties. An
applicant or responsible managing officer who fails the
examination may retake it; however, an applicant who fails
the examination three times shall be ineligible to re-take the
examination for one year after the third failed examination.
An additional fee may be imposed by the City for each re-
examination.
SECTION 6. Section 6.104.040 is hereby amended to read as follows:
Section 6.104.040. Conditions of issuance of
Operator's Permit.
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The Chief of Police shall condition the issuance of any
Operator's Permit to ensure compliance with this Chapter
and other applicable laws, including all health, zoning, fire
and safety requirements and standards. Such conditions
shall include, but not be limited to, .the following:
(1) All doors shall be kept unlocked during
business hours.
(2) No Massage may be given within any cubicle,
room, booth or any area within the Massage Establishment
which is fitted with a door capable of being locked, unless
that door is an exterior door. No electronic locking device
may be utilized on any interior door.
(3) Except to the extent required by written
prescription issued and signed by a physician licensed in the
State of California, no Massage Technician or employee
shall Massage the genitals, gluteal fold, or anal area of any
patron, or the breasts of any female patron, nor shall any
Operator or Responsible Employee of a Massage
Establishment allow or permit such Massage.
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(4) No Operator or Responsible Employee, while
performing any task or service associated with the Massage
Establishment, shall be present in any room with another
person unless the person's genitals, gluteal fold, anus, or, in
the case of a female, her breast(s), are fully covered.
(5) No person or entity granted an Operator's
Permit shall use any name or conduct business under any
designation other than that specified in the Operator's
Permit, and no business shall be conducted other than the
business authorized by the Operator's Permit.
(6) All Massage Establishments shall have an
Operator or Responsible Employee on the premises at all
times the Massage Establishment is open. The Operator of
each Massage Establishment shall file a statement with the
Finance Department designating the person or persons with
power to act as a Responsible Employee. The Operator or
the Responsible Employee shall post, on a daily basis, the
name of each on-duty Responsible Employee and each on-
duty Massage Technician in a conspicuous public place in
the lobby of the Massage Establishment. The Operator and
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the Responsible Employee shall be responsible for ensuring
compliance with this Chapter.
(7) No Massage Establishment shall be open for
business without having a valid Operator's Permit.
(8) At least one Massage Technician holding a
current valid Massage Technician Permit for that specific
Massage Establishment, or at least one State Certified
Massage Technician, shall be on the premises and on duty
at all times when the Massage Establishment is open.
(9) The Operator or the Responsible Employee
shall ensure that the Operator's Permit for the Massage
Establishment and the Massage Technician Permit or State
Certification for each on-duty Massage Technician are
conspicuously displayed in a public place in the lobby of the
Massage Establishment.
(10) The Operator or the Responsible Employee
shall ensure that each Massage Technician, other than a
Certified Massage Technician, is wearing or has in his or her
possession the photo identification card required by Section
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6.104.070 at all times when in the Massage Establishment.
The photo identification card shall be presented to the
representatives of the City, including a police officer, upon
request.
(11) The Operator or the Responsible Employee
shall be responsible for the conduct of all employees,
including Massage Technicians, while such employees are
at the Massage Establishment. All persons found working in
the Massage Establishment shall be considered employees
of the Operator, including independent contractors and
unpaid volunteers. Any act or omission of such person that
constitutes a violation of the provisions of this Chapter shall
be deemed to be the act or omission of the Operator for
purposes of determining whether the Operator's Permit shall
be revoked, suspended, denied or renewed.
(12) No Operator or Responsible Employee shall
employ any person as a Massage Technician who does not
have, prior to such employment, a valid Massage Technician
Permit for the specific Massage Establishment at which the
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Massage Technician is to perform Massage service, unless
that person is a Certified Massage Technician.
(13) Every Operator or Responsible Employee shall
report to the Finance Department any change of personnel
at the Massage Establishment, including any change of
Massage Technicians, whether by new or renewed
employment, discharge or termination on the form and in the
manner required by the Finance Department. The form shall
include space to provide the name of the employee and the
date of hire, rehire, discharge or termination. The form shall
be submitted to Finance Department within three (3) working
days of the date of hire, rehire, discharge or termination.
(14) The Operator or the Responsible Employee of
a Massage Establishment shall deliver the Massage
Technician Permit and photo identification card of any
Massage Technician no longer employed at the Massage
Establishment to the Finance Department within three (3)
working days of the date of discharge or termination of the
Massage Technician, except if the discharged or terminated
person is a Certified Massage Technician.
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(15) All persons, including the Operator,
Responsible Employee, Massage Technicians and all other
persons working in the Massage Establishment, shall be fully
clothed at all times and shall wear clean outer garments.
Clothing shall be of a fully opaque, non-transparent material
and shall provide complete covering of the genitals, genital
area, buttocks and female breasts of such persons,
Massage Technicians and other persons working in the
Massage Establishment.
(16) .The Operator or the Responsible Employee
shall maintain a register of all employees, including all
Massage Technicians and all other persons working in the
Massage Establishment, showing the name, nicknames and
aliases used by such person, home address, age, birth date,
gender, height, weight, color of hair and eyes, telephone
numbers, social security number, date of employment and
termination, if any, and duties of each employee. By the
tenth day of each quarter, the Operator or the Responsible
Employee shall file with the Finance Department a copy of
the register showing all persons who worked on the
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premises during the preceding quarter. The above
information on each employee shall be maintained in the
register on the premises for a period of two (2) years
following termination of the employee. The Operator or the
Responsible Employee shall make the register of employees
available to representatives of the City, including a police
officer, upon request.
(17) Each Operator shall provide the Finance
Department with evidence of the insurance required by
Section 6.104.090 prior to the date of issuance of the
Operator's Permit.
(18) The Operator and the Responsible Employee
shall comply with all provisions of this Chapter and all other
applicable laws, including, but not limited to, all red light
abatement provisions set forth in Penal Code Sections
11225 through 11235, or any successor statute.
SECTION 7. Section 6.104.050 is hereby amended to read as follows:
Section 6.104.050. Massage Technician Permit
required.
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Except as provided in Section 6.104.005(a), no
person shall perform Massage in a Massage Establishment
or Off-Premises Massage for money or any other
consideration, unless such person has in effect a valid
Massage Technician Permit.
SECTION 8. Section 6.104.060 is hereby amended to read as follows:
Section 6.104.060. Application and examination
for Massage Technician Permit.
Any person may apply for a Massage Technician
Permit either to work in a Massage Establishment or as an
Off-Premises Massage Technician by filing a written
application with the Finance Department on a form required
by the Chief of Police, paying a filing fee, and passing an
examination administered by the County of Los Angeles.
The application shall be completed and signed by the person
desiring the Massage Technician Permit. The application
shall be deemed complete if it contains or is accompanied by
the following:
(a) For a Massage Technician Permit to
work in a Massage Establishment, the exact name of the
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Massage Establishment at which the applicant will be
working as a Massage Technician and the exact address of
the location of the Massage Establishment at which the
applicant will be working as a Massage Technician. For an
Off-Premises Massage Technician, the central business
address of the Off-Premises Massage Technician. Either
shall include the full street address and all telephone
numbers associated with the location. If the applicant will be
working in a Massage Establishment, the application shall
indicate the exact name, address, and all telephone
numbers of the Massage Establishment.
(b) A statement in writing from a physician
licensed in the State of California on a form approved by the
Chief of Police that the physician has examined the applicant
within the past thirty-day period preceding the application
and has found the applicant to be free from all
communicable diseases.
(c) The following personal information and
identification concerning the applicant:
(1) Name and complete residence address;
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(2) Two immediately prior residence
addresses;
(3) Date of birth;
(4) Height, weight, color of hair and eyes,
and gender;
(5) The Massage or similar business history
and experience of the applicant, including but not limited to,
whether or not such person, in previously performing
Massage services or operating a Massage Establishment or
similar business in this or any other city or state, under
license or permit, has had such license or permit denied,
revoked, or suspended and the reasons therefor;
(6) All criminal convictions including pleas
of nolo contendere within the last ten years, including those
which have been dismissed or expunged under the
provisions of Section 1203.4 of the Penal Code, but
excluding infraction violations, and the date of each such
conviction or plea and the sentence therefore;
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(7) A valid California driver's license or valid
California identification card;
(8) Two front-faced portrait photographs at
least two inches by two inches in size taken by the Police
Department;
(9) A complete set of fingerprints taken by
the Police Department.
(d) A diploma or certificate of graduation
and a certified transcript from an approved Massage school.
The term "approved Massage school" means and includes a
school or institution of learning licensed by the State of
California and approved by the State Superintendent of
Public Instruction pursuant to Education Code Section
94311(d) and reviewed by the Superintendent within the.
preceding twelve-month period, which has for its purpose the
teaching of the theory, method, profession, or work of
Massage Technicians and which requires a resident course
of study of not less than five hundred hours. The term
"approved Massage school" may, at the discretion of the
Chief of Police, also include a school or institution of learning
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which is licensed and accredited by a state other than the
State of California, which has for its purpose the teaching of
the theory, method, profession, or work of Massage
Technicians, and which requires a resident course of study
of not less than five hundred hours. An applicant who
attended an out-of-state school shall submit a diploma or
certificate of completion, a certified transcript, the name,
address and telephone number of the school, and a course
description and outline of the material covered in the courses
completed by the applicant. Any out of state course of study
submitted for approval shall meet the State of California's
Office of Post Secondary Education's minimum
requirements.
Notwithstanding the foregoing, the Chief of
Police may determine that a particular school does not
qualify as an "approved Massage school" based upon
substantial evidence that the school issues diplomas or
certificates of completion fraudulently or otherwise fails to
engage in teaching the theory, method, profession, or work
of Massage Technicians.
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(e) Proof of passage of aCity-approved
examination for Massage Technicians. A list of City-
approved examinations shall be maintained by the Finance
Department.
(f) Evidence of the insurance required by
Section 6.104.090.
(g) A statement in writing by the applicant
authorizing the City, its agents and employees to seek
verification of the information contained in the application
and attesting that the applicant certifies under penalty of
perjury that all information contained in the application is true
and correct.
(h) Such other information and identification
as deemed necessary by the Chief of Police to fulfill the
purposes of this Chapter.
SECTION 9. Section 6.104.070 is hereby amended to read as follows:
6.104.070. Conditions of issuance of Massage
Technician Permit.
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The Chief of Police shall condition the issuance of
any Massage Technician Permit to ensure compliance with
this Chapter and other applicable laws. Such conditions shall
include, but not be limited to, the following:
(a) That the Massage Technician must be
wearing or have in his or her possession the photo
identification card prepared by the Police Department when
working pursuant to the Massage Technician Permit. The
photo identification card shall be promptly presented to the
representatives of the City, including a police officer, upon
request. If a Massage Technician intends to change his or
her business address, he or she shall be required, prior to
such change occurring, to obtain from the Police Department
a new photo identification card showing the new business
address of the Massage Technician.
(b) That if the applicant is authorized to conduct
Off-Premises Massage, that Off-Premises Massage shall not
be conducted in a hotel, motel, or other commercial
establishment except in the office of the customer.
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(c) That when working pursuant to the Massage
Technician Permit, the Massage Technician may not expose
his or her genitals or buttocks, or, in the case of a female,
her breast(s), or make intentional contact or occasional and
repetitive contact with the genitals or anus of another
person.
(d) No Massage Technician employed by a
Massage Establishment may engage in any Off-Premises
Massage without applying for and being issued a separate
Massage Technician Permit to engage in Off-Premises
Massage.
SECTION 10. Section 6.104.080 is hereby amended to read as follows:
6.104.080. Processing Operator's Permit and
Massage Technician Permit applications; and the
issuing of permits.
The Chief of Police shall exercise his or her
discretion to approve, conditionally approve, or deny any
application under this Chapter within sixty days after it is
deemed complete. The sixty day period for processing may
be extended for up to an additional thirty days if necessary to
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complete an investigation of the applicant, the application or
the proposed location. The Chief of Police shall issue the
permit unless he or she makes any of the following findings:
(a) The applicant has, within five years prior to
the application date:
(1) Been convicted of or pled to a violation of
Health and Safety Code Section 11550, or a violation of
Penal Code Section 266h, 266i, 314, 315, 316, 318, 647(a)
or 647(b), or a violation of any provision of this Chapter, or
any previous Chapter to which this is the successor Chapter;
(2) Been convicted of or pled to any felony
offense involving the sale of a controlled substance specified
in Health and Safety Code Section 11054, 11055, 11056,
11057, or 11058; or of any felony offense which substantially
relates to the applicant's qualifications, functions or duties
under this Chapter;
(3) Been required to register under the provisions
of Penal Code Section 290;
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(4) Been convicted of or pled to any offense in
any other state which is the equivalent of any of the offenses
specified above;
(5) Been convicted. of or pled to a lesser offense
as a result of a plea negotiation in a case where the
applicant was originally charged with any of the crimes listed
in this subsection (a);
(6) Been subjected to a permanent injunction
against the conducting or maintaining. of a nuisance
pursuant to Sections 11225 through 11235 of the Penal
Code, or any similar provisions of law in a jurisdiction outside
the State of California.
(b) The applicant has, within three years prior to
the application date:
(1) Committed an act, which, if done by an
Operator or a Massage Technician permittedunder this
Chapter, would be grounds for suspension or revocation of
the permit pursuant to section 6.104.120 of this Code;
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(2) Committed an act involving dishonesty, fraud,
or deceit with the intent to substantially benefit himself,
herself, or another or substantially to injure another, or an
act of violence, which act or acts are substantially related to
the qualifications, functions, or duties governed by this
Chapter.
(c) The Massage Establishment as proposed by
the applicant does not comply with all applicable laws,
including, but not limited to, health, zoning, nuisance, fire
and safety requirements and standards.
(d) The applicant has knowingly made a false,
misleading, or fraudulent statement of fact to the City on his
or her application.
(e) The application does not contain the
information required by this Chapter.
(f) The applicant has not satisfied the
requirements of this Chapter.
SECTION 11.Section 6.104.090 is hereby amended to read as follows:
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Section 6.104.090. Requirements for all Massage Establishments
and Massage Technicians.
The requirements of this Section are reasonable
health and safety requirements for Massage Establishments
and Massage Technicians and shall apply to all Massage
Establishments and Massage Technicians in the City; unless
otherwise specified.
(a) All Massage Establishments shall have an
Operator or Responsible Employee on the premises at all
times when the Massage Establishment is open.
(b) No person shall give, or assist in the giving, of
any Massage to any person under the age of eighteen (18)
years, unless the parent or guardian of such minor person
has consented thereto in writing.
(c) The Operator or the Responsible Employee
shall erect and maintain a recognizable and readable sign
adjacent to the main entrance identifying the premises as a
Massage Establishment. The sign may not use any strobe
lights or other flashing lights to illuminate the front of the
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business.. This subsection shall not apply to any Certified
Massage Establishment:
(d) The Operator or the Responsible Employee
shall also post and maintain a list of services available and
the cost of each. No Operator or Responsible Employee
shall permit, and no Massage Technician shall offeror
perform, any service other than those posted and for the
cost of the service as posted.
(e) The Operator and the Responsible Employee
shall be responsible for the conduct of all employees,
including Massage Technicians, while such employees are
at the Massage Establishment. All. persons found working in
the Massage Establishment shall be considered employees
of the Operator, including independent contractors and
unpaid volunteers. Any act or omission of such person that
constitutes a violation of the provisions of this Chapter shall
be deemed to be the act or omission of the Operator for
purposes of determining whether the Operator's Permit shall
be revoked, suspended, denied or renewed.
34
(f) Th e Operator or the Responsible. Employee
shall provide in each room where Massages are given
sufficient lighting and ventilation as required by the Building
Code. Lighting in each Massage room shall be at least one
40 watt white light bulb which shall be activated at all times
while a patron is in the room. No strobe lights, colored
lights, or colored light coverings shall be used. This
subsection shall not apply to any Certified Massage
Establishment.
(g) From time to time and during business hours,
City and County health and safety personnel, including a
police officer, may inspect the premises for the purpose of
determining compliance with state and local laws. An
Operator, Responsible Employee, a Massage Technician or
any other employee or agent thereof, including a Certified
Massage Technician, shall allow such inspections; and it is a
violation of this Chapter if he or she refuses to permit or
interferes with a lawful inspection.
(h) A minimum of one tub or shower and one toilet
and washbasin shall be provided for the patrons in every
35
Massage Establishment. If male and female patrons are to
be served simultaneously, and if steam rooms or saunas are
provided, a separate steam room or sauna shall be provided
for male and female patrons. Hot and cold running water
under pressure shall be provided to all wash basins,
bathtubs, showers, and similar equipment. Each wash basin
shall be provided with soap or detergent and sanitary towels
placed in permanently installed dispensers. A trash
receptacle shall be provided in each toilet room. In addition
to the wash basin provided for patrons, a minimum of one
separate wash basin shall be provided in each Massage
Establishment, which wash basin shall provide soap or
detergent and hot running water at all times and shall be
located within or as close as practically possible to the area
devoted to the performing of Massage services. If the wash
basin for patrons is not in the toilet room but it is adjacent
thereto, this wash basin shall meet the separate wash basin
requirement if it is reasonably close to the area devoted to
performing Massages. This subsection shall not apply to any
Certified Massage Establishment.
36
(i) In a Certified Massage Establishment, no
Massage may be given within any cubicle, room, booth or
any area any behind any locked door, unless there is no staff
available to assure security for clients and massage staff
who are behind closed doors. All other Massage
Establishments shall comply with the requirements of section
6.104.040(2) relating to locked doors.
Q) No person shall operate a Massage
Establishment or work as an Off Premises Massage
Technician or administer a Massage as herein defined for
money or any other consideration between the hours of
10:30 p.m. and 7:00 a.m.
(k) No person shall operate a Massage
Establishment under any name or conduct business or
perform Massage services under any designation or location
not specified in his or her Operator's Permit, Massage
Technician Permit or State Certification, as applicable.
(I) No person shall enter, be, or remain in any part
of a Massage Establishment while in possession of
consuming, using, or under the influence of any alcoholic
37
beverage or controlled substance. The owner, Operator, and
Responsible Employee shall each be responsible for
ensuring that no such person shall enter or remain in a
Massage Establishment.
(m)No person, while conducting business as an
Off-Premises Massage Technician, shall be in possession
of, or under the influence of, any alcoholic beverage or
controlled substances.
(n) No building or part thereof used as a Massage
Establishment and no location at which an Off-Premises
Massage Technician works shall be equipped with any
electronic, mechanical, or artificial device used, or capable of
being used, for recording or videotaping, for monitoring the
activities, conversation, or other sounds in the treatment
room or any room used by the business patrons; nor shall
any such equipment be used to record, videotape or monitor
a person receiving a Massage without that person's written
consent in advance.
(o) No Operator or Responsible Employee of any
Massage Establishment shall send a Massage Technician
38
off the premises for the purpose of administering a Massage,
nor shall the Massage Establishment or any part thereof be
used by any employee, Operator, Responsible Employee, or
owner to receive or accept such requests for Off-Premises
Massages, except when such Off-Premises Massage is
permitted by this Chapter. No person holding a Massage
Technician Permit to conduct Off-Premises Massage shall
conduct Massage, whether or not for compensation, at a
hotel, motel, or any other commercial establishment except
in the office of the customer.
(p) Every Massage Technician shall, while working
in a Massage Establishment, display his or her Massage
Technician Permit or State Certification in a conspicuous
place within the Massage Establishment so that it may be
readily seen by persons entering the premises.
(q) All persons working in a Massage
Establishment shall be fully clothed at all times, and such
clothing shall be of a fully opaque, non-transparent material.
No Massage Technician shall perform any Massage or
39
associated task. while exposing his or her genitals, buttocks,
or, in the case of a female, her breast(s).
(r) Except to the extent required by written
prescription issued and signed by a physician licensed in the
State of California, no Massage Technician shall Massage
the genitals, buttocks, gluteal fold, or anal area of any
patron, or the breasts of any female patron, nor shall any
Operator or Responsible Employee of a Massage
Establishment allow or permit such Massage. No Massage
Technician shall make intentional contact or occasional and
repetitive contact with the genitals, buttocks, gluteal fold, or
anus of any patron, or the breasts of any female patron.
(s) All persons, including the Operator, the
Responsible Employee, the Massage Technicians and all
other persons working in Massage Establishments shall be
fully clothed at all times and shall wear clean outer
garments. Clothing shall be of a fully opaque, non-
transparent material and shall provide complete covering of
the genitals, genital area, buttocks and female breasts of
40
such persons, Massage Technicians, and other persons
working in the Massage Establishment.
(t) Each Mass age Establishment shall provide to
all patrons, clean, sanitary and opaque coverings capable of
covering the patrons' genitals, genital area, buttocks and
female breasts. No common use of such coverings shall be
permitted and re-use is prohibited unless coverings are
adequately cleaned between uses.
(u) No Massage Technician shall perform any
Massage or associated task in any room with another person
unless that person's genitals, genital area, buttocks and
female breasts are fully covered.
(u) Standard or portable Massage tables with
durable, washable plastic or other waterproof material as
covering shall be used for Massage. Foam pads more than
four inches thick or with a width of more than four feet may
not be used. Beds, mattresses, and water beds may not be
used in the administration of a Massage.
41
(w)The Operator of each Massage Establishment
shall file a statement with the Finance Department
designating the person or persons with power to act as a
Responsible Employee. The Operator or the on-duty
Responsible Employee shall post, on a daily basis, the name
of each Responsible Employee and each Massage
Technician in a conspicuous public place in the lobby of the
Massage Establishment. The Operator or the Responsible
Employee shall be responsible for ensuring compliance with
this Chapter.
(x) Every Operator shall report to the City any
change of employees, including any change of Massage
Technicians, whether by new or renewed employment,
discharge or termination, on the form and in the manner
required by the Finance Department. The report shall
contain the name of the employee and the date of hire,
rehire, discharge or termination. The report shall be made
within three (3) working days of the date of hire, rehire,
discharge or termination.
42
(y) Every Operator shall, on or before the fifth (5th)
working day of each calendaP month, report to the City a full
list of all employees, independent contractors, volunteers, or
other persons, including Massage Technicians, working or
providing any service at the Massage Establishment. Such
report shall include a statement by the Operator or
Responsible Employee that each person performing
Massage services at the Massage Establishment has a
Massage Technician Permit or State Certification.
(z) Every Operator of a Massage Establishment
employing any Certified Massage Technician shall file a
copy of the State Certification for each Certified Massage
Technician with the Finance Department and the Police
Department.
(aa) Every Certified Massage Technician
required to obtain a business license pursuant to section
6.104.015(b) shall file a copy of his or her State Certification
with the Finance Department and the Police Department.
(bb) Every person operating a Massage
Establishment and each person doing business as a
43
Massage Technician shall keep a record of the dates and
hours of each treatment or service, name, address and birth
date of the patron which shall be verified by the patron
showing legal identification prior to the provision of service,
the name of the Massage Technician administering such
service and a description of the treatment or service
rendered. These records shall be open to inspection by the
health officials charged with the responsibility of preventing
the spread of communicable and contagious diseases and to
officials, including a police officer, charged with the
enforcement of the provisions of this Chapter. The
information furnished or secured as a result of any such
records shall be used only to ensure and enforce compliance
with this Chapter and other applicable laws and shall
otherwise remain confidential. Officials charged with
enforcement of this Chapter shall periodically inspect the
records to ensure compliance with this Chapter. The records
shall be maintained for a period of not less than one (1) year.
(cc) All Operators and all Massage
Technicians shall keep on file with the Finance Department
44
in full force and effect at all times, documents issued by an
insurance company authorized to do business in the State of
California evidencing that the Permit holder is insured under
a liability insurance policy providing minimum coverage of
$100,000.00 for injury or death to one person arising out of
the operation of any Massage Establishment in the case of
the Massage Establishment, or the administration of a
Massage, in the case of the Massage Technician.
(dd) Any Operator that is not the legal owner
of the real property upon which or in which the Massage
Establishment is located shall keep on file with the Finance
Department the name and address of the owner of such real
property. Such an Operator must also keep on file with the
Finance Department a copy of the lease and a notarized
acknowledgement from the owner of the real property. Any
change in ownership of the real property or in the lease
terms shall be filed with the Finance Department with thirty
(30) days of such change.
(ee) All Massage Establishments must
comply with all state and federal laws and regulations for
45
disabled customers. No Massage Establishment, Operator,
Responsible Employee or Massage Technician may
discriminate or exclude patrons on the basis of race,
nationality, gender, sexual orientation, religion, age, or
disability.
(ff) The Chief of Police may require that the
following notice be posted in the event that any employee of
the Massage Establishment or any person who has been
aided and abetted by an employee of the Massage
Establishment has been found, after hearing by
administrative proceeding or by court conviction or plea, to
have violated any provisions listed in this Chapter:
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND THE
MASSAGE ROOMS DO NOT PROVIDE COMPLETE
PRIVACY AND ARE SUBJECT TO INSPECTION BY THE
SANTA MONICA POLICE DEPARTMENT AND CODE
ENFORCEMENT DIVISION WITHOUT PRIOR NOTICE.
SECTION 12. Section 6.104.100 is hereby amended to read as follows:
46
Section 6.104.100. Changes of Operators.
An Operator or Responsible Employee shall report
immediately to the Chief of Police any and all changes of
ownership or management of the Massage Establishment
including, but not limited to, changes of Operator,
Responsible Employee, manager or other person principally
in charge, stockholders holding more than five percent (5%)
of the stock of the corporation, officers, directors, and
partners; and any and all changes of name, style, or
designation under which the business is to be conducted,
and all changes of address or telephone numbers of the
Massage Establishment.
SECTION 13. Section 6.104.110 is hereby amended to read as follows:
6.104.110. No transfer of permits-Duration and
renewal of permits.
(a) No Massage Technician Permit or Operator's
Permit shall be sold or transferred. Any such attempted sale,
assignment or transfer shall be deemed to constitute a
voluntary surrender of such permit and such permit shall
thereafter be null and void.
47
(b) All Operator's Permits and Massage
Technician Permits shall be issued for a period of no more
than one year, provided that the Massage Technician or
Operator continues to meet the requirements of this Chapter.
(c) Applications for Massage Technician Permit
or Operator's Permit renewal at the end of each fiscal year
shall be filed with the Chief of Police at least thirty days prior
to the expiration of the Massage Technician Permit or
Operator's Permit.
(d) Each applicant for renewal shall file such
information, including but not limited to proof of insurance, as
may be required by the Chief of Police to update the
information required for his or her original application. Each
Massage Technician renewal applicant shall include a
statement in writing from a licensed physician in the State of
California that he or she has examined the applicant within
the past thirty day period preceding the application and has
found the renewal applicant to be free from all
communicable diseases.
SECTION 14. Section 6.104.120 is hereby amended to read as follows:
48
6.104.120. Suspension, revocation, denial and
appeal.
(a) The Chief of Police may deny an application,
refuse to renew a Massage Technician Permit or Operator's
Permit, or revoke or suspend an existing Massage
Technician Permit or Operator's Permit on the grounds that
the applicant or permit holder has allowed violations of the
permit conditions or otherwise failed to comply with the
requirements of this Chapter. In any such case, the applicant
or permit holder shall have the right to appeal from a
decision of the Chief of Police in accordance with the
hearing procedures established by Chapter 6.16 of this
Code.
(b) No suspended Massage Technician Permit or
Operator's Permit may be renewed during the term of the
suspension. If a suspended Massage Technician Permit or
Operator's Permit lapses during the suspension period, a
new application may be approved, to be effective only upon
the expiration of the period of suspension.
49
(c) When the Chief of Police concludes that
grounds exist to deny an application or to suspend, revoke
or refuse to renew a Massage Technician Permit or
Operator's Permit, the Chief of Police shall direct service
upon the applicant, or Massage Technician or Operator, by
certified mail, return receipt requested, addressed to the
business and residence address of the applicant, or
Massage Technician or Operator, of a notice of denial or
notice of intent to suspend, revoke or refuse to renew
Massage Technician Permit or Operator's Permit. This
notice shall state the reasons for the proposed action, the
effective date of the decision, the right of the applicant, or
Massage Technician or Operator, to appeal the decision to a
hearing examiner, the right to submit contrary evidence
along with the appeal, and that the decision will be final if no
appeal is filed within the time allowed.
(d) The right to appeal shall terminate upon
expiration of fifteen days from the date of mailing of the
notice. Any decision of the Chief of Police, pursuant to this
Chapter, shall be deemed final and conclusive unless a
50
written notice of appeal is filed with the City Clerk prior to the
expiration of the fifteen day appeal period. In the event an
appeal is timely filed, any suspension or revocation shall be
stayed until a final decision has been rendered by the
hearing examiner. If no appeal is filed, the suspension or
revocation. shall become effective upon expiration of the
period for filing the appeal. The hearing shall be concluded
within sixty days of the date of the filing of the appeal. The
hearing examiner shall render his or her decision within sixty
days from the date of the conclusion of the hearing, unless
otherwise agreed by the parties. The decision of the hearing
examiner shall be final. The applicant shall be entitled to
notice of the basis for the proposed action, a copy of the
documents upon which the decision of the Chief of Police
was based and the opportunity to present contrary evidence
to the Chief of Police prior to the hearing and to the hearing
examiner at the hearing. Notice of the date, time and place
of the hearing shall be mailed at least ten days prior to the
date of the hearing, by certified mail, return receipt
requested, with proof of service attached, addressed to the
51
address listed on the Operator application, or Massage
Technician application, as the case may be.
(e) No Massage Technician Permit or Operator's
Permit granted herein shall confer any vested right to any
person or business for more than the permit period. All
Operators, Responsible Employees and Massage
Technicians shall comply with the provisions of this Chapter
as they may be amended hereafter.
SECTION 15. Section 6.104.130 is hereby deleted in its entirety.
SECTION 16. Section 6.104.140 is hereby deleted in its entirety:
SECTION 17. Section 6.104.150 is hereby amended to read as follows:
6.104.150. Fees.
The City Council shall establish, and from time to
time amend by resolution, fees for the administration and
enforcement of this Chapter.
SECTION 18. Section 6.104.160 is hereby amended to read as follows:
6.104.160. Variance procedure.
52
Any other provision of this Chapter
notwithstanding, an Operator or a person applying for an
Operator's Permit may file with the Chief of Police a request
for a variance to be relieved of the requirements set forth in
Section 6.104.090(h) of this Chapter. The decision of the
Chief of Police to grant or to deny a request for a variance
shall be final. The Chief of Police may grant such requests
only if he or she is satisfied that all of the following conditions
are met:
(a) Although within the statutory definition of a
Massage Establishment, the Operator's premises are
devoted primarily to the conduct of a business other than
that of Massage:
(b) The Operator would suffer unusual hardship if
forced to comply with the requirements set forth in Section
6.104.090(h) of this Chapter.
(c) The bathing and toilet facilities provided by the
operator in lieu of those required by Section 6.104.090(h)
comply with the applicable requirements of State and local
53
law and are adequate to protect the public health, safety,
and welfare.
SECTION 19. Section 6.104.170 is hereby amended to read as follows:
6.104.170. Massage schools.
A Massage school duly accredited by the State of
California may obtain an Operator's Permit under this
Chapter and may employ Massage Technicians to provide
Massage so long as the principal business activity is
providing education and instruction.
SECTION 20. Section 6.104.180 is hereby amended to read as follows:
6.104.180. Location of massage establishments.
A Massage Establishment incompliance with the
provisions of this Chapter, or any Certified Massage
Establishment, shall be considered a permitted use in any
zoning district in the City, where general retail use is
permitted.
SECTION 21. Section 6.104.190 is hereby amended to read as follows:
54
6.104.190. Violation and penalty.
(a) Violations of this Chapter shall constitute a
misdemeanor and shall be punishable in the manner
provided in Section 1.08.010.
(b) Notwithstanding the foregoing, any Massage
Establishment operated, conducted or maintained contrary
to the provisions of this Chapter may be, and the same is
hereby declared to be, unlawful as defined in Section
1.08.010 of this Code and a public nuisance as defined in
Penal Code Section 11225 and in Penal Code Section
373(a). The City may, in addition to or in lieu of prosecuting
a criminal action hereunder pursue any available civil
remedy, including, but not limited to an action or proceeding,
for the abatement, removal and enjoinment of the operation
of the Massage Establishment and for reimbursement of the
costs of such abatement, removal and enjoinment.
SECTION 22. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
55
SECTION 23. If any section, subsection, sentence,. clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, 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 and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of this Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 24. The Mayor shall sign and the City Clerk shall attest to the
passage of this Ordinance. The City Clerk shall cause the same to be published once
in the official newspaper within 15 days after its adoption. This Ordinance shall
become effective 30 days from its adoption.
APPROV~~EjD~~~AS TO FORM: ~(~~
M R HA ES MO IE
City Attorn
56
Approved and adopted this 14th day of July, 2009.
Ken Genser, M yor
State of California )
County of Los Angeles) ss.
City of Santa Monica )
I, Maria Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoirig Ordinance No. 2290 (CCS) had its introduction on June 23`d, 2009, and was
adopted at the Santa Monica City Council meeting held on July 14th, 2009, by the
following vote:
Ayes: Council members: Bloom, Davis, Holbrook, Shriver
Mayor Genser, Mayor Pro Tem O'Connor
Noes: Council members: None
Abstain: Council members: None
Absent: Council members: McKeown
A summary of Ordinance No. 2290 (CCS) was duly published pursuant to California
Government Code Section 40806.
ATTEST:
Maria Stewart, C y Clerk