Ord 691
ORDINANCE NO. 691
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA, AMENDING SECTION
5.04.010, SECTION 5.04.020, AND CHAPTER 5.68 OF THE MUNICIPAL CODE, AND
DELETING SECTIONS 5.16.320 AND 5.16.340, AND CHAPTER 544, PERTAINING
TO MASSAGE ESTABLISHMENTS AND LICENSED BUSINESSES
WHEREAS, the Legislature enacted Senate Bill 731 in the 2007-2008 term,
creating a voluntary state licensing scheme for massage practitioners and therapists,
which will go into effect September 1, 2009; and
WHEREAS, these new rules, codified in Business & Professions Code section
4600 et. seq., exempt those who obtain certificates from the State from certain local
regulations of massage practice; and
WHEREAS, these new laws require amendments to the Poway Municipal Code
to ensure the Code's compliance with Senate Bill 731 and to provide clearer guidelines
for how the Code can be enforced; and
WHEREAS, the City Council for the City of Poway finds that it is necessary to
maintain a strict regulatory regime to ensure the health and safety of those performing
and receiving massage services in the City of Poway; and
WHEREAS, as part of this comprehensive regulatory scheme, it is also
necessary to regulate holistic health practitioners who practice massage, because they
are not subject to State regulation; and
WHEREAS, during the course of updating relevant sections of the Poway
Municipal Code to comply with Senate Bill 731, the City Council for the City of Poway
deems it appropriate to also delete certain outdated provisions in the chapter related to
business licensing.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL FOR THE
CITY OF POWAY AS FOLLOWS:
SECTION 1: Section 5.04.010 is modified to read as follows:
5.04.010 License - Required.
It is unlawful for any person, firm, or corporation to engage in, conduct, manage,
or carryon any of the following businesses, practices, professions, or occupations
within the City without first having obtained a license therefor in accordance with the
uniform licensing procedure:
A. Amusement establishment and devices;
B. Bingo;
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C. Carnivals and go-cart centers;
D. Dances and dancehalls;
E. Dances, teenage;
F. Entertainment;
G. Firearms, sale of;
H. Junk, automotive wrecking, nonoperating vehicle storage yards;
I. Massage establishments, except for those exempted by Business &
Professions Code section 4600 et. seq.;
J. Massage technician, except for those exempted by Business & Professions
Code section 4600 et. seq.;
K. Secondhand dealers;
L. Shooting ranges;
M. Solicitors:
1. License,
2. Identification card;
N. Street patrols;
SECTION 2: Section 5.04.020 is modified to read as follows:
5.04,020 Issuing Officer.
All licenses issued shall be issued by the Issuing Officer, who shall be the City
Manager or the City Manager's designee.
SECTION 3: Section 5.16.320 is deleted in its entirety.
SECTION 4: Section 5.16.340 is deleted in its entirety.
SECTION 5: Chapter 5.44 is deleted in its entirety.
SECTION 6: Section 5.68.040 is modified to read as follows:
5.68.040 Definitions.
Whenever in this chapter the following words or phrases are used, they shall mean:
A. "Building inspection" means the Development Services Department of the
City.
B. "Certificate Holder" means a person certified pursuant to Business &
Professions Code section 4600 et. seq., or a business establishment where only people
certified pursuant to Section 4600 et. seq. practice massage.
C. "Chief of Police" means the Chief of Police of the City or any other law
enforcement official of competent jurisdiction.
D. "Health Department" means the Health Department of the County.
E. "License" means the business license to operate a massage establishment
required by this chapter.
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F. "Massage" means any method of pressure on or friction against, or stroking,
kneading, rubbing, tapping, pounding, vibrating or stimulating of the external parts of the
body with the hands or with the aid of any mechanical or electrical apparatus or
appliances with or without such supplementary aids as rubbing alcohol, liniments,
antiseptics, oils, powder, creams, lotions, ointments, or other similar preparations
commonly used in this practice. Massage includes practices by . holistic health
practitioners or other similar professions or avocations that otherwise meet this
definition.
G. "Massage establishment" means any establishment having a fixed place of
business where any person, firm, association or corporation engages in or carries on or
permits to be engaged in or carried on any of the activities mentioned in subsection F of
this section. An establishment of a holistic health provider or any other similar
professional who includes massage as part of his or her practice is a massage
establishment.
H. "Massage technician" means any person, including a trainee, male or female,
who gives or administers to another person, for any form of consideration, a "Massage,"
as that term is defined in this chapter.
I. "Permit" means the permit to engage in the activities of a "massage technician"
required by this chapter.
J. "Person" means a natural person, firm, copartnership, association or
corporation.
K. "Recognized school" means any school or institution of learning, which has
for its purpose the teaching of the theory, method, profession or work of massage, and
which has been approved pursuant to Section 29007.5 of the California Education Code
or pursuant to a similar code provision of another state.
L. "Specified anatomical areas" mean pubic region, human genitals, perineum,
anal region and the area of the female breast that includes the areola and the nipple.
SECTION 7 Section 5.68.100 is modified to read as follows:
5.68.100 Application form for massage technician.
The application for a massage technician permit shall contain the following:
A. The name and residence address;
B. The previous addresses of the applicant, if any, for a period of three years
immediately prior to the date of the application and the dates of residence at each;
C. Social security number and driver's license number, if any;
D. The applicant's weight, height, color of hair and eyes;
E. The written evidence, satisfactory to the Chief of Police, that the applicant is
at least 18 years of age;
F. Business, occupation or employment of the applicant for the three years
immediately preceding the date of the application;
G. Whether such person has ever been convicted of any crime, except
misdemeanor traffic violations. If any person mentioned in this subsection has been so
convicted, a statement must be made giving the place and court in which such
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conviction was had, the specific charge under which the conviction was obtained, the
sentence imposed as a result of such conviction, and the circumstances surrounding
the crime for which he was convicted;
H. The business license or permit history of the applicant; whether such person,
in previously operating in this or another county, city or state under license or permit,
has had such license or permit suspended or revoked, the reason therefor, and the
business activity or occupation subsequent to such suspension or revocation;
I. Two portrait photographs, at least two inches by two inches. One photograph
shall be retained by the Chief of Police for his files and one photograph shall be affixed
to the permit;
J. Such other identification and information as the Chief of Police may require in
order to discover the truth of the matters specified in this chapter as required to be set
forth in this section;
K. For all new applicants after September 1, 2009, passage of a certifying
examination approved by the regulatory body providing oversight to massage
professionals pursuant to Business & Professions Code section 4600 et. seq.
Applicants renewing their applications without a break in licensure status from before
September 1, 2009, shall demonstrate that they have passed a qualifying written
examination prepared by the Health Department and administered by the Chief of
Police establishing competency and ability of the applicant to engage in the practice of
massage. In lieu of taking such written examination, applicant may furnish a diploma or
certificate of graduation from a "recognized school" wherein the method, profession and
work of massage is taught or may furnish evidence of employment as a massage
technician for 1,200 hours;
L. Pass an examination prepared and conducted by the Health Department
wherein the applicant shall be required to demonstrate a basic knowledge of anatomy,
physiology, hygiene and manual and mechanical massage. These examinations shall
be conducted at regular intervals. The Health Director shall advise the Chief of Police of
the results of such examination;
M. The Chief of Police shall fingerprint the applicant.
SECTION 8: Section 5.68.110 is modified to read as follows:
5.68.110 Massage technician trainee.
A. A massage technician trainee permit shall be issued to any person who has
fulfilled the requirements of PMC 5.68.100, with the exception of subsection L or M of
that section, provided he is currently enrolled in a "recognized school" as defined in
PMC 5.68.040(J) and has completed at least 25 hours of instruction; and provided the
applicant submits a letter signed by the owner or manager of a licensed massage
establishment stating his immediate intent to employ the applicant to do massage as a
trainee working under the direct supervision and control of a massage technician who
has received a permit under the provisions of this chapter. The procedure to follow,
except as otherwise provided in this chapter, in obtaining a permit is that set forth in the
uniform licensing procedure set out in Chapter 5.04 PMC. In addition to the reasons
stated in the uniform licensing procedure, the Issuing Officer may deny an applicant for
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a permit if he finds that:
1. The applicant has, within five years immediately preceding the date of the
filing of the application, been convicted of an offense or has been adjudged to be a
mentally disordered sex offender and has a duty to register with the Sheriff or Chief of
Police under Section 290 of the Penal Code; or has been convicted of a violation of
Sections 314 (indecent exposure), 315 (keeping or residing in a house of ill-fame), 316
(keeping a disorderly house, disturbing the peace), 647(a) (soliciting or engaging in
lewd or dissolute conduct in a public place), or 647(b) (soliciting or engaging in
prostitution) of the Penal Code, or convicted in another state or any offense which, if
committed or attempted in this State, would have been punishable as one or more of
the heretofore mentioned offenses.
2. The trainee permit shall allow the student to work in a massage establishment
under the supervision and direction of a massage technician who has received a permit
issued under the provisions of this chapter; provided, however, no licensed massage
technician shall be permitted to supervise more than two persons issued a trainee
permit at anyone time. The trainee permit shall expire nine months from the date of
issuance and shall not be renewed unless good cause is shown by the applicant for
such renewal. Any person desiring to obtain a permit to act as a massage technician
trainee shall make an application to the Issuing Officer.
3. The nonrefundable fee for a massage technician trainee permit and the
annual nonrefundable renewal fee shall be established by City Council resolution from
time to time. The appropriate fee shall accompany the submission of each application.
The trainee must at all times comply with the laws relating to massage establishments
and the failure to comply may render the trainee ineligible to obtain a massage
technician permit.
4. An applicant who is denied a trainee permit may request a hearing from the
Issuing Officer. Such request must be made in writing and filed with the Issuing Officer
within five days after the applicant has received notice of the denial. The Issuing Officer
shall notify the applicant of the time and place of such hearing.
B. After September 1, 2009, no more massage technician trainee permits shall
be issued.
SECTION 9 Section 5.68.120 is modified to read as follows:
5.68.120 Qualification period.
All those persons employed as massage technicians in massage establ'lshments
at the time Ordinance 29 from 1981 went into effect or so employed within the 12
months immediately preceding such effective date, who cannot qualify for a massage
technician permit by reason of PMC 5.68.100(K) and (L), will have 120 days to qualify
either as a massage technician or a massage technician trainee and obtain the required
permit under this chapter. All other information required under PMC 5.68.100 shall be
submitted immediately.
SECTION 10: Section 5.68.130 is modified to read as follows:
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5.68.130 Massage establishment facilities.
A. No license to conduct a massage establishment shall be granted and no
massage establishment shall practice massage unless an inspection by the Department
of Development Services and the Health Department reveals that the proposed
establishment complies with each of the following minimum requirements:
1. A recognizable and legible sign complying with the sign regulations in the
zoning ordinance of the City shall be posted at the main entrance identifying the
premises as a massage establishment.
2. A light level of no less than five foot-candles at any point within the room shall
be maintained in each room or enclosure where massage services are performed on
patrons. This subsection does not apply to Certificate Holders.
3. Adequate dressing, locker and toilet facilities shall be provided for patrons,
except that Certificate Holders need not provide any facilities over and above those
required by applicable law for other professional or personal services:
a. In steam rooms and rooms containing tubs and showers, a waterproof
floor covering shall be provided which extends up the walls at least six inches and shall
be covered at the floor-wall juncture with at least a three-eighths-inch radius. Toilet
rooms shall be of similar construction.
b. Walls of toilet and bathing facilities shall be smooth, waterproof and
kept in good repair.
4. Cabinets shall be provided for the storage of clean linen. Approved containers
shall be provided for the storage of all soiled linen.
5. Minimum ventilation shall be provided in accordance with the building code of
the City. To allow for adequate ventilation in cubicles, rooms and areas provided for
patrons use, which are not serviced directly by required window or mechanical systems
of ventilation, partitions shall be constructed so that the height of partitions does not
exceed 75 percent of the floor-to-ceiling height of the area in which they are located.
However, nothing in this subsection shall require Certificate Holders to maintain any
higher standards than apply to other professional or personal services.
6. A minimum of one separate washbasin provided with hot and cold running
water, soap and individual towels in a dispenser shall be provided in each massage
establishment for the use of employees. This washbasin shall be separate from
washbasins located in toilet rooms. This subsection does not apply to Certificate
Holders, but Certificate Holders must comply with all other related standards
established by law.
7. All plumbing and electrical installations shall be installed under permit and
inspection of the Department of Development Services and such installations shall be
installed in accordance with the Uniform Building Code and Uniform Plumbing Code.
8. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other
physical facilities for the establishment must be in good repair and maintained in a clean
and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, shall be
thoroughly cleaned and disinfected with a disinfectant approved by the Health
Department each day the business is in operation. Bathtubs shall be thoroughly cleaned
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and disinfected with a disinfectant approved by the Health Department after each use.
This subsection does not apply to Certificate Holders.
9. Towels, sheets, and linens of all types and items for personal use of operators
and patrons shall be clean and freshly laundered. Towels, clothes, and sheets shall not
be used for more than one person. Reuse of such linen is prohibited unless the same
has been first laundered. Common use of towels or linens is prohibited. Heavy white
paper may be substituted for sheets; provided, that such paper is used once for each
person and then discarded into a sanitary receptacle.
10. All lavatories or washbasins shall be provided with hot and cold running
water, soap and single service towels in wall-mounted dispensers, except for Certificate
Holders, who must abide by all laws applicable to professional or personal services.
11. Except for Certificate Holders, security deposit facilities for the protection of
the valuables of the patrons shall also be available.
12. Disinfecting agents and sterilizing equipment approved by the Health
Department shall be provided for any instruments used in performing acts of massage.
13. Pads used on massage tables shall be covered in a workmanlike manner
with durable washable plastic or other acceptable waterproof material.
14. Except for Certificate Holders, no exterior entrance to the massage
establishment which is regularly used by the public for ingress or egress to such
establishment shall be locked during business hours.
15. All massage establishments shall be subject to reasonable inspection during
hours of business operation.
16. Except for Certificate Holders who must comply with all laws applicable to
professional or personal services, a minimum of one tub or shower, and one toilet and
washbasin shall be provided by every massage establishment; provided, however, that
if male and female persons are employed by any massage establishment or if male and
female patrons are to be served simultaneously at said establishment, or any
combination thereof, a separate massage room, or rooms, separate dressing facilities
and separate toilet facilities shall be provided for male and female patrons and
employees. Further, in those establishments where steam room or sauna baths are
provided, if male and female patrons are to be served simultaneously, separate steam
rooms or sauna rooms shall be provided for male and female patrons.
B. This section shall be construed to require minimum standards only. The
application shall be required to comply with all applicable provisions of this Code.
SECTION 11: Section 5.68.170 is modified to read as follows:
5.68.170 Records of treatments.
Except for Certificate Holders, every person, association, firm, or corporation
operating a massage establishment under a license as provided in this chapter shall
keep for a period of 90 days a record of the date and hour of each treatment, and the
name of the technician administering such treatment. Said record shall be open to
inspection by officials charged with the enforcement of these provisions for the
purposes of law enforcement and for no other purpose. The information furnished or
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secured as a result of any such inspection shall be confidential. Any willfully
unauthorized disclosure or use of such information by any officer or employee of the
City shall constitute an infraction and such officer or employee shall be subject to the
penalty provisions of this Code, in addition to any other penalties provided by law.
Records shall be kept for a period of 90 days of treatments rendered off the business
site.
SECTION 12: Section 5.68.180 is modified to read as follows:
5.68.180 Applicability of regulations to existing business.
The provisions of this chapter shall be applicable to all persons and business
described in this chapter whether the activities described in this chapter were
established before or after the effective date of the ordinance codified in the adopted
County code and set out in this chapter, except where expressly provided otherwise
herein.
SECTION 13: Section 5.68.190 is modified to read as follows:
5.68.190 Exemptions.
This chapter shall not apply to:
A. Acupuncturists, physicians, surgeons, chiropractors, osteopaths or physical
therapists who are duly licensed to practice their respective professions in the State;
B. Nurses who are licensed under the laws of this State;
C. Trainers of any amateur, semiprofessional or professional athlete or athletic
team;
D. Barbers and beauticians who are duly licensed under the laws of the State.
SECTION 14: Section 5.68.220 is modified to read as follows:
5.68.220 Violation - Penalty.
A.. Every person, except those persons who are specifically exempted by this
chapter, whether acting as an individual, owner, employee of the owner, operator or
employee of the operator, or whether acting as a mere helper for the owner, employee,
or operator, or acting as a participant or worker in any way, who gives "massages" or
conducts "a massage establishment" or practices the giving or administering of any of
the services defined in PMC 5.68.040 without first obtaining the necessary permit or
license shall be guilty of a misdemeanor.
B. Any owner, operator, manager, or permittee in charge or in control of a
massage establishment who knowingly employs a person performing as a massage
technician, as defined in this chapter, who is not in possession of a valid, unrevoked
permit or valid, unrevoked State-issued certificate, or who allows such person to
Ordinance No. 691
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perform, operate or practice massage within such place of business is guilty of a
misdemeanor.
SECTION 15: Section 5.68.230 is added, to read as follows:
5.68.230 Rules Applicable to Certificate Holders.
The following rules apply to Certificate Holders:
A. No later than three business days before practicing massage in the City of
Poway, a Certificate Holder shall register with the City of Poway. A Certificate Holder
must re-register within five business days of submitting information to the California
Massage Therapy Councilor its successor to renew the Certificate Holder's certification.
The Certificate Holder shall, in his or her registration form, include the following
information:
1. The Certificate Holder's name;
2. A copy of the Certificate Holder's current, valid certificate;
3. The Certificate Holder's business address;
4. Any other information the City Manager deems relevant, consistent with
Business & Professions Code section 4600 et. seq.
B. Nothing in this chapter exempts a Certificate Holder from an obligation to
obtain a business license from the City of Poway.
C. Within three business days of any change in the information required by
subsection A, a Certificate Holder who practices massage in the City of Poway shall
notify the City Manager of this change.
SECTION 16: Section 5.68.240 is added, to read as follows:
5.68.240 Attire.
A. Each massage establishment shall provide to all patrons clean, sanitary and
opaque coverings capable of covering the patron's Specified anatomical areas. Such
coverings shall be used for one customer only and shall not be reused without first
being cleaned.
B. No owner, operator, responsible managing employee, manager, permittee or
licensee in charge of or in control of a massage establishment shall permit a massage
to be given unless the patron's Specified anatomical areas are covered during the entire
massage by the covering referred to in subsection A of this section.
C. With the exception of bathrooms or dressing rooms not open to public view,
no owner, operator, responsible managing employee, manager, permittee or licensee in
charge of or in control of any massage establishment shall permit any person in any
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area within the massage establishment which is used in common by the patrons or
which can be viewed by patrons from such an area, unless such person's Specified
anatomical areas are fully covered.
D. No owner, operator, responsible managing employee, manager, permittee or
licensee in charge of or in control of massage establishment shall permit any massage
technician to perform any service or task while in the presence of a patron or to be on
the premises of a massage establishment during its hours of operation unless the
massage technician is fully covered from a point not to exceed four inches above the
center of the kneecap to the base of the neck. Such covering shall be of an opaque
material and shall be maintained in a clean and sanitary condition.
E. No owner, operator, responsible managing employee, manager, permittee or
licensee in charge of or in control of a massage establishment shall permit any person
to massage or intentionally touch the Specified anatomical areas of another person
while performing the services of an adult massage technician.
SECTION 17: This ordinance shall be codified.
EFFECTIVE DATE: This ordinance shall take effect and be in force thirty (30)
days after the date of this passage; and before the expiration of fifteen (15) days after
its passage, it shall be published once with the names and members voting for and
against the same in the Po way News Chieftain, a newspaper of general circulation
published in the City of Poway.
Introduced and first read at a regular meeting of the City Council of the City of
Poway held this 7th day of July 2009, and thereafter PASSED AND ADOPTED at a
regular meeting of said City Council held the 21st day of July 2009, by the following roll
call vote.
~~lJ- ~ -
Don Higginson, Mayo;
~-<.~0.:- ,
~
LjpdaAYroyan, MMC
City Clerk
Ordinance No. 691
Page 11
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO)
I, Linda A. Troyan, City Clerk of the City of Poway, do hereby certify that the
foregoing Ordinance No. 691, was duly adopted by the City Council at a meeting of said
City Council held on the 21st day of July 2009, and that it was so adopted by the
following vote:
AYES: BOYACK, CUNNINGHAM, REXFORD, KRUSE, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
~
rin~l'A. Troyan, MMC
City Clerk
City of Poway