HomeMy WebLinkAboutZOA 14-351 MASSAGE ESTABLISHMENTS 2014 Assembly Bill No. 1147
CHAPTER 406
An act to amend Section 460 of, and to add and repeal Chapter 10.5
(commencing with Section 4600) of Division 2 of, the Business and
Professions Code, and to amend Section 51034 of the Government Code,
relating to healing arts.
[Approved by Govemor September 18,2014.Filed with
Secretary of State September 18,2014.]
LEGISLATIVE COUNSEL'S DIGEST
AB 1147,Bonilla.Massage therapy.
Existing law,until January 1,2015,provides for the voluntary certification
of massage practitioners and massage therapists by the California Massage
Therapy Council.Existing law specifies the requirements for the council to
issue to an applicant a certificate as a massage practitioner or massage
therapist.Existing law authorizes a city,county,or city and county to impose
certain requirements on massage establishments or businesses that are the
sole proprietorship of an individual certified pursuant to existing state law
or that employ or use only persons who are so certified. Existing law
authorizes a city,county,or city and county to,among other things,adopt
reasonable health and safety requirements,as specified,pertaining to those
massage establishments or businesses, and to require an applicant for a
business license to operate a massage business or establishment to fill out
an application that requests relevant information,as specified.
This bill would reenact, revise, and recast these provisions to, among
other things,establish an interim board of directors to govern the council
until September 15,2015,and provide for the appointment of a new board
of directors consisting of 13 members, as specified, whose 4-year terms
would begin on that date. The bill would authorize the board to establish
fees reasonably related to the costs of providing services and performing
its duties,not to exceed$300.The bill would require the board to provide
at least 90 days'advance notice prior to holding a meeting to vote upon a
proposal to increase the certification fees,as specified,except as provided.
The bill would also require the board to notify certificate holders of a board
action that increases those fees.
The bill would discontinue the issuance of new massage practitioner
certificates after January 1,2015,except as provided,but would authorize
the renewal of massage practitioner certificates issued prior to January 1,
2015. The bill would require that all certificates issued pursuant to these
provisions be subject to renewal every 2 years,except as provided.The bill
would require the council to develop policies,procedures,rules,or bylaws
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governing the approval and unapproval of schools that provide education
required for certification,as specified.
The bill would authorize the council to deny an application for a
certificate, or to discipline a certificate holder for a violation of these
provisions, as specified. The bill would require the board to exercise its
denial or discipline authority by means of fair and reasonable procedures
that, among other things, provide the applicant or certificate holder with
notice and an opportunity to be heard,as specified.The bill would provide
that unprofessional conduct in violation of these provisions includes,among
other things,engaging in sexually suggestive advertising related to massage
services and engaging in sexual activity while providing massage services
for compensation.
The bill would, notwithstanding any other law, prohibit a city, county,
or city and county from enacting or enforcing an ordinance that conflicts
with these provisions or other corresponding specified provisions.However,
the bill would authorize a city,county,or city and county to adopt or enforce
local ordinances that govern zoning,business licensing,or reasonable health
and safety requirements for establishments or businesses of a licensed or
certified healing arts professional, including a certified massage therapist.
The bill would also make clarifying and conforming changes regarding local
regulation of massage establishments or businesses.
The bill would authorize a court to issue an injunction or to provide any
other relief it deems appropriate for violations of these provisions, as
specified.The bill would provide that the powers and duties of the council
are subject to review by the appropriate committees of the Legislature and
would require the council to provide a specified report to these committees
on or before June 1,2016.
The bill would provide that these provisions are issues of statewide
concern, and therefore applicable statewide. The bill would also provide
that its provisions are severable.
The bill would repeal these provisions on January 1,2017.
The people of the State of California do enact as follows:
SECTION 1. Section 460 of the Business and Professions Code is
amended to read:
460. (a) No city, county, or city and county shall prohibit a person or
group of persons, authorized by one of the agencies in the Department of
Consumer Affairs or an entity established pursuant to this code by a license,
certificate,or other means to engage in a particular business,from engaging
in that business,occupation,or profession or any portion of that business,
occupation,or profession.
(b) (1) No city, county, or city and county shall prohibit a healing arts
professional licensed with the state under Division 2 (commencing with
Section 500) or licensed or certified by an entity established pursuant to
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this code from engaging in any act or performing any procedure that falls
within the professionally recognized scope of practice of that licensee.
(2) This subdivision shall not be construed to prohibit the enforcement
of a local ordinance in effect prior to January 1,2010,related to any act or
procedure that falls within the professionally recognized scope of practice
of a healing arts professional licensed under Division 2(commencing with
Section 500).
(c) This section shall not be construed to prevent a city,county,or city
and county from adopting or enforcing any local ordinance governing zoning,
business licensing, or reasonable health and safety requirements for
establishments or businesses of a healing arts professional licensed under
Division 2 (commencing with Section 500)or licensed or certified by an
entity established under this code or a person or group of persons described
in subdivision(a).
(d) Nothing in this section shall prohibit any city, county, or city and
county from levying a business license tax solely for revenue purposes,nor
any city or county from levying a license tax solely for the purpose of
covering the cost of regulation.
SEC. 2. Chapter 10.5 (commencing with Section 4600) is added to
Division 2 of the Business and Professions Code,to read:
CHAPTER 10.5. MASSAGE THERAPY ACT
4600. This chapter shall be known and may be cited as the Massage
Therapy Act. Whenever a reference is made to the Massage Therapy Act
by any statute,it shall be construed to refer to this chapter.
4600.5. (a) It is the intent of the Legislature that this act enable
consumers and local governments to more easily identify certified massage
professionals, provide for consistent statewide certification and oversight
of massage professionals,ensure that schools approved by the council that
are teaching massage provide a high level of training, assist local
governments and law enforcement in meeting their duty to maintain the
highest standards of conduct in massage establishments by vetting and
disciplining certificate holders,provide for a self-funded nonprofit oversight
body to certify massage professionals,and ensure full compliance with,and
execution of,the requirements of this act.
(b) It is the intent of the Legislature that broad control over land use in
regulating massage establishments be vested in local governments so that
they may manage those establishments in the best interests of the individual
community, and that the requirements and practice of the profession of
massage therapy remain a matter of statewide concern, regulation, and
oversight.
(c) It is the intent of the Legislature that local governments impose and
enforce only reasonable and necessary fees and regulations,in keeping with
the requirements of existing law and being mindful of the need to protect
legitimate business owners and massage professionals, particularly sole
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providers, during the transition period after this act becomes law and
thereafter for the sake of developing a healthy and vibrant local economy.
(d) It is the intent of the Legislature that local governments, law
enforcement, nonprofit stakeholders, the massage industry, and massage
professionals work together going forward to improve communication and
share information to further increase the value of statewide certification,to
collaborate in the implementation of this act, and to develop a model
ordinance reflecting best practices in massage regulation for cities and
counties to adopt that will respect local control, patient privacy, and the
dignity of the profession of massage therapy.
4601. As used in this chapter, the following terms shall have the
following meanings:
(a) "Approved school" or "approved massage school"means a school
approved by the council that meets minimum standards for training and
curriculum in massage and related subjects,that meets any of the following
requirements,and that has not been otherwise unapproved by the council:
(1) Is approved by the Bureau for Private Postsecondary Education.
(2) Is approved by the Department of Consumer Affairs.
(3) Is an institution accredited by the Accrediting Commission for Senior
Colleges and Universities or the Accrediting Commission for Community
and Junior Colleges of the Western Association of Schools and Colleges
and that is one of the following:
(A) A public institution.
(B) An institution incorporated and lawfully operating as a nonprofit
public benefit corporation pursuant to Part 2 (commencing with Section
5110) of Division 2 of Title 1 of the Corporations Code, and that is not
managed by any entity for profit.
(C) A for-profit institution.
(D) An institution that does not meet all of the criteria in subparagraph
(B)that is incorporated and lawfully operating as a nonprofit public benefit
corporation pursuant to Part 2(commencing with Section 5110)of Division
2 of Title 1 of the Corporations Code,that has been in continuous operation
since April 15, 1997,and that is not managed by any entity for profit.
(4) Is a college or university of the state higher education system, as
defined in Section 100850 of the Education Code.
(5) Is a school requiring equal or greater training than what is required
pursuant to this chapter and is recognized by the corresponding agency in
another state or accredited by an agency recognized by the United States
Department of Education.
(b) "Certificate"means a valid certificate issued by the council pursuant
to this chapter.
(c) "Compensation' means a payment, loan, advance, donation,
contribution,deposit,or gift of money,or anything of value.
(d) "Council'means the California Massage Therapy Council created
pursuant to this chapter, which shall be a nonprofit organization exempt
from taxation under Section 501(c)(3)of Title 26 ofthe United States Code.
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(e) "Massage"means the scientific manipulation of the soft tissues.For
purposes of this chapter,the terms"massage"and"bodywork" shall have
the same meaning.
(f) "Massage establishment"or"establishment"means a fixed location
where massage is performed for compensation, excluding those locations
where massage is only provided on an out-call basis.
(g) "Massage practitioner"means a person who is certified by the council
pursuant to Section 4604.2 and who administers massage for compensation.
(h) "Massage therapist"means a person who is certified by the council
under Section 4604 and who administers massage for compensation.
(i) "Sole provider" means a massage business where the owner owns
100 percent of the business, is the only person who provides massage
services for compensation for that business pursuant to a valid and active
certificate issued in accordance with this chapter,and has no other employees
or independent contractors.
4602. (a) The California Massage Therapy Council, as defined in
subdivision(d) of Section 4601, is hereby established and shall carry out
the responsibilities and duties set forth in this chapter.
(b) The council may take any reasonable actions necessary to carry out
the responsibilities and duties set forth in this chapter, including, but not
limited to, hiring staff, entering into contracts, and developing policies,
procedures,rules,and bylaws to implement this chapter.
(c) The council may require background checks for all employees,
contractors, volunteers, and board members as a condition of their
employment, formation of a contractual relationship, or participation in
council activities.
(d) The council shall issue a certificate to an individual applicant who
satisfies the requirements of this chapter for that certificate.
(e) The council is authorized to determine whether the information
provided to the council in relation to the certification of an applicant is true
and correct and meets the requirements of this chapter. If the council has
any reason to question whether the information provided is true or correct
or meets the requirements of this chapter,the council is authorized to make
any investigation it deems necessary to establish that the information
received is accurate and satisfies any criteria established by this chapter.
The applicant has the burden to prove that he or she is entitled to
certification.
(f) Until September 15,2015,the council shall be governed by a board
of directors comprised of two representatives selected by each professional
society, association, or other entity, which membership is comprised of
massage therapists and that chooses to participate in the council.To qualify,
a professional society,association,or other entity shall have a dues-paying
membership in California of at least 1,000 individuals for the last three years
and shall have bylaws that require its members to comply with a code of
ethics. The board of directors shall also include each of the following
persons:
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(1) One member selected by each statewide association of private
postsecondary schools incorporated on or before January 1, 2010, which
member schools have together had at least 1,000 graduates in each of the
previous three years from massage therapy programs that meet the approval
standards set forth in subdivision(a)of Section 4601, unless a qualifying
association chooses not to exercise this right of selection.
(2) One member selected by the League of California Cities,unless that
entity chooses not to exercise this right of selection.
(3) One member selected by the California State Association of Counties,
unless that entity chooses not to exercise this right of selection.
(4) One member selected by the Director of Consumer Affairs, unless
that entity chooses not to exercise this right of selection.
(5) One member appointed by the Office of the Chancellor of the
California Community Colleges,unless that entity chooses not to exercise
this right of selection.The person appointed,if any,shall not be part of any
massage therapy certificate or degree program.
(6) The council's bylaws shall establish a process for appointing other
professional directors to the council who have knowledge of the massage
industry or can bring needed expertise to the operation of the council for
purposes of complying with Section 4603.
(g) At 12 p.m.Pacific standard time on September 15,2015,the term of
each member of the board of directors established pursuant to subdivision
(f)shall terminate,and the terms of 13 new members of the board of directors
who shall be chosen in the following manner,shall begin:
(1) One member shall be a representative of the League of California
Cities,unless that entity chooses not to exercise this right to appoint.
(2) One member shall be a representative of the California Police Chiefs
Association,unless that entity chooses not to exercise this right to appoint.
(3) One member shall be a representative of the California State
Association of Counties,unless that entity chooses not to exercise this right
to appoint.
(4) One member shall be a representative of an"anti-human trafficking"
organization to be determined by the council.This organization shall appoint
one member, unless the organization chooses not to exercise this right to
appoint.
(5) One member shall be appointed by the Office of the Chancellor of
the California Community Colleges,unless that office chooses not to exercise
this right to appoint.
(6) One member shall be a member of the public appointed by the
Director of the Department of Consumer Affairs,unless the director chooses
not to exercise this right to appoint.
(7) One member shall be appointed by the California Association of
Private Postsecondary Schools, unless that entity chooses not to exercise
this right to appoint.
(8) One member shall be appointed by the American Massage Therapy
Association,California Chapter,who shall be a California-certified massage
therapist or massage practitioner who is a California resident and who has
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been practicing massage for at least three years,unless that entity chooses
not to exercise this right to appoint.
(9) One member shall be a public health official representing a city,
county,city and county,or state health department,to be determined by the
council.The city,county,city and county,or state health department chosen,
shall appoint one member unless that entity chooses not to exercise this
right to appoint.
(10) (A) One member shall be a certified massage therapist or a certified
massage practitioner who is a California resident who has practiced massage
for at least three years prior to the appointment,selected by a professional
society, association, or other entity which membership is comprised of
massage therapist professionals,and that chooses to participate in the council.
To qualify, a professional society, association, or other entity shall have a
dues-paying membership in California of at least 1,000 individuals, have
been established since 2000,and shall have bylaws that require its members
to comply with a code of ethics.
(B) If there is more than one professional society,association,or other
entity that meets the requirements of subparagraph (A), the appointment
shall rotate based on a four-year term between each of the qualifying entities.
The qualifying entity shall maintain its appointment authority during the
entirety of the four-year term during which it holds the appointment
authority.The order in which a qualifying professional society,association,
or other entity has the authority to appoint shall be determined by
alphabetical order based on the full legal name of the entity as of January
1,2014.
(11) The members appointed to the board in accordance with paragraphs
(1)to(10),inclusive,shall appoint three additional members,at a duly held
board meeting in accordance with the board's bylaws. One of those
appointees shall be an attorney licensed by the State Bar of California,who
has been practicing law for at least three years and who at the time of
appointment represents a city in the state. One of those appointees shall
represent a massage business entity that has been operating in the state for
at least three years.The council shall establish in its bylaws a process for
appointing an additional member,provided that the member has knowledge
of the massage industry or can bring needed expertise to the operation of
the council for purposes of complying with Section 4603.
(h) Board member terms shall be for four years.
(i) The board of directors shall establish fees reasonably related to the
cost of providing services and carrying out its ongoing responsibilities and
duties.Initial and renewal fees for certificates shall be in an amount sufficient
to support the functions of the council in the administration of this chapter,
but in no event shall exceed three hundred dollars($300).The renewal fee
shall be reassessed biennially by the board.
0) The meetings of the council shall be subject to the rules of the
Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120)of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government
Code).The board may adopt additional policies and procedures that provide
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greater transparency to certificate holders and the public than required by
the Bagley-Keene Open Meeting Act.
(k) Prior to holding a meeting to vote upon a proposal to increase the
certification fees, the board shall provide at least 90 days' notice of the
meeting,including posting a notice on the council's Internet Web site unless
at least two-thirds of the board members concur that there is an active threat
to public safety and that voting at a meeting without prior notice is necessary.
However,the board shall not waive the requirements of subdivision 0).
(n If the board approves an increase in the certification fees,the council
shall update all relevant areas of its Internet Web site and notify all certificate
holders and affected applicants by email within 14 days of the board's action.
4603. Protection of the public shall be the highest priority for the council
in exercising its certification and disciplinary authority, and any other
functions.Whenever the protection of the public is inconsistent with other
interests sought to be promoted, the protection of the public shall be
paramount.
4604. (a) In order to obtain certification as a massage therapist, an
applicant shall submit a written application and provide the council with
satisfactory evidence that he or she meets all of the following requirements:
(1) The applicant is 18 years of age or older.
(2) The applicant has successfully completed the curricula in massage
and related subjects totaling a minimum of 500 hours, or the credit unit
equivalent, that incorporates appropriate school assessment of student
knowledge and skills.
(A) Of the 500 hours,a minimum of 100 hours of instruction shall address
anatomy and physiology,contraindications,health and hygiene,and business
and ethics.
(B) All of the 500 hours shall be from schools approved by the council.
(3) The applicant has passed a massage and bodywork competency
assessment examination that meets generally recognized psychometric
principles and standards and that is approved by the council.The successful
completion of this examination may have been accomplished before the
date the council is authorized by this chapter to begin issuing certificates.
(4) The applicant has successfully passed a background investigation
pursuant to Section 4606,and has not violated any of the provisions of this
chapter.
(5) All fees required by the council have been paid.
(6) The council may issue a certificate to an applicant who meets the
qualifications of this chapter if he or she holds a current and valid
registration, certification, or license from any other state whose licensure
requirements meet or exceed those defined within this chapter.If an applicant
has received education at a school that is not approved by the council,the
council shall have the discretion to give credit for comparable academic
work completed by an applicant in a program outside of California.
(b) A certificate issued pursuant to this chapter and any identification
card issued by the council shall be surrendered to the council by any
certificate holder whose certificate is suspended or revoked.
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4604.1. (a) The council shall not accept applications to issue any new
certificates to practice as a certified massage practitioner on or after January
1,2015.
(b) Certificates to practice as a certified massage practitioner for
applications accepted prior to January 1, 2015, may be renewed without
any additional educational requirements.
(c) A massage practitioner certificate and any identification card issued
by the council,shall be surrendered to the council by any certificate holder
whose certificate is suspended or revoked.
4604.2. (a) A person who was issued a conditional certificate to practice
as a massage practitioner shall, within five years of being issued the
conditional certificate by the council, complete and report to the council
the completion of, at least 30 hours of additional education per year from
approved schools or from continuing education providers approved by the
council, until he or she has completed a total of at least 250 hours of
education.
(b) A conditional certificate issued to any person pursuant to this section
shall immediately be nullified,without need for further action by the council,
if proof of completion of the requirements specified in subdivision (a) is
not filed with the council within the time period specified in subdivision
(a).
(c) Notwithstanding subdivision(a)of Section 4604.1,the council shall
issue a new certificate to practice as a massage practitioner to a person that
successfully completes the requirements described in subdivision(a).
4605. Except as otherwise provided, a certification issued pursuant to
this chapter shall be subject to renewal every two years in the manner
prescribed by the council.A certificate issued by the council shall expire
after two years unless renewed as prescribed.The council may provide for
the late renewal of a certificate.
4606. (a) Prior to issuing a certificate to an applicant,or designating a
custodian of records,the council shall require the applicant or the custodian
of records candidate to submit fingerprint images as directed by the council
and in a form consistent with the requirements of this section.
(b) The council shall submit the fingerprint images and related
information to the Department of Justice for the purpose of obtaining
information as to the existence and nature of a record of state and federal
level convictions and of state and federal level arrests for which the
Department of Justice establishes that the applicant or candidate was released
on bail or on his or her own recognizance pending trial.
(c) Requests for federal level criminal offender record information
received by the Department of Justice pursuant to this section shall be
forwarded to the Federal Bureau of Investigation by the Department of
Justice. The Department of Justice shall review the information returned
from the Federal Bureau of Investigation,and shall compile and disseminate
a fitness determination regarding the applicant or candidate to the council.
The Department of Justice shall provide information to the council pursuant
to subdivision(p)of Section 11105 of the Penal Code.
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(d) The Department of Justice and the council shall charge a fee sufficient
to cover the cost of processing the request for state and federal level criminal
offender record information.
(e) The council shall request subsequent arrest notification service from
the Department of Justice,as provided under Section 11105.2 of the Penal
Code,for all applicants for certification or custodian of records candidates
for whom fingerprint images and related information are submitted to
conduct a search for state and federal level criminal offender record
information.
(f) The council is authorized to receive arrest notifications and other
background materials about applicants and certificate holders from a city,
county,or city and county.
4607. The council may discipline an owner or operator of a massage
business or establishment who is certified pursuant to this chapter for the
conduct of all individuals providing massage for compensation on the
business premises.
. 4608. In addition to the other requirements of this chapter,a certificate
holder shall:
(a) Display his or her original certificate wherever he or she provides
massage for compensation. A certificate holder shall have his or her
identification card in his or her possession while providing massage services
for compensation.
(b) Provide his or her full name and certificate number upon the request
of a member of the public, the council, or a member of law enforcement,
or a local government agency charged with regulating massage or massage
establishments,at the location where he or she is providing massage services
for compensation.
(c) Include the name under which he or she is certified and his or her
certificate number in any and all advertising of massage for compensation.
(d) Notify the council within 30 days of any changes in the certificate
holder's home address or the address of any massage establishment or other
location where he or she provides massage for compensation, excluding
those locations where massage is only provided on an out-call basis. A
certificate holder also shall notify the council of his or her primary email
address, if any, and notify the council within 30 days of a change of the
primary email address.
4609. (a) It is a violation of this chapter for an applicant or a certificate
holder to commit any of the following acts, the commission of which is
grounds for the council to deny an application for a certificate or to impose
discipline on a certificate holder:
(1) Unprofessional conduct, including, but not limited to, any of the
following:
(A) Engaging in sexually suggestive advertising related to massage
services.
(B) Engaging in any form of sexual activity on the premises of a massage
establishment where massage is provided for compensation, excluding a
residence.
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(C) Engaging in sexual activity while providing massage services for
compensation.
(D) Practicing massage on a suspended certificate or practicing outside
of the conditions of a restricted certificate.
(E) Providing massage of the genitals or anal region.
(F) Providing massage of female breasts without the written consent of
the person receiving the massage and a referral from a licensed California
health care provider.
(2) Procuring or attempting to procure a certificate by fraud,
misrepresentation,or mistake.
(3) Failing to fully disclose all information requested on the application.
(4) Impersonating an applicant or acting as a proxy for an applicant in
any examination referred to in this chapter for the issuance of a certificate.
(5) Impersonating a certificate holder, or permitting or allowing a
noncertified person to use a certificate.
(6) Violating or attempting to violate,directly or indirectly,or assisting
in or abetting the violation of,or conspiring to violate,any provision of this
chapter or any rule or bylaw adopted by the council.
(7) Committing any fraudulent, dishonest, or corrupt act that is
substantially related to the qualifications or duties of a certificate holder.
(8) Denial of licensure, revocation, suspension, restriction, citation, or
any other disciplinary action against an applicant or certificate holder by
another state or ten:itory of the United States, by any other government
agency, or by another California health care professional licensing board.
A certified copy of the decision, order, judgment, or citation shall be
conclusive evidence of these actions.
(9) Being convicted of any felony,misdemeanor,infraction,or municipal
code violation, or being held liable in an administrative or civil action for
an act,that is substantially related to the qualifications,functions,or duties
of a certificate holder. A record of the conviction or other judgment or
liability shall be conclusive evidence of the crime or liability.
(10) Dressing while engaged in the practice of massage for compensation,
or while visible to clients in a massage establishment,in any of the following:
(A) Attire that is transparent, see-through, or substantially exposes the
certificate holder's undergarments.
(B) Swim attire, if not providing a water-based massage modality
approved by the council.
(C) A manner that exposes the certificate holder's breasts,buttocks,or
genitals.
(D) A manner that constitutes a violation of Section 314 of the Penal
Code.
(E) A manner that is otherwise deemed by the council to constitute
unprofessional attire based on the custom and practice of the profession in
California.
(11) Committing any act punishable as a sexually related crime or being
required to register pursuant to the Sex Offender Registration Act(Chapter
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5.5(commencing with Section 290)of Title 9 of Part 1 of the Penal Code),
or being required to register as a sex offender in another state.
(b) The council may deny an application for a certificate for the
commission of any of the acts described in subdivision(a).The council may
also discipline a certificate holder,in any manner permitted by this chapter,
for the commission of any of those acts by a certificate holder.
(c) The council shall deny an application for a certificate,or revoke the
certificate of a certificate holder, if the applicant or certificate holder is
required to register pursuant to the Sex Offender Registration Act(Chapter
5.5(commencing with Section 290)of Title 9 of Part 1 of the Penal Code),
or is required to register as a sex offender in another state.
4610. (a) An applicant for a certificate shall not be denied a certificate,
and a certificate holder shall not be disciplined pursuant to this chapter
except according to procedures that satisfy the requirements of this section.
Denial or discipline that is not in accord with this section shall be void and
without effect.
(b) The council may discipline a certificate holder by any, or a
combination,of the following methods:
(1) Placing the certificate holder on probation, which may include
limitations or conditions on practice.
(2) Suspending the certificate and the rights conferred by this chapter on
a certificate holder for a period not to exceed one year.
(3) Suspending or staying the disciplinary order, or portions of it,with
or without conditions.
(4) Revoking the certificate.
(5) Taking other action as the council deems proper, as authorized by
this chapter or policies,procedures,rules,or bylaws adopted by the board.
(c) The council may issue an initial certificate on probation,with specific
terms and conditions,to any applicant.
(d) Any denial or discipline shall be decided upon and imposed in good
faith and in a fair and reasonable manner.Any procedure that conforms to
the requirements of subdivision(f) is fair and reasonable,but a court may
also find other procedures to be fair and reasonable when the full
circumstances of the denial or discipline are considered.
(e) A procedure is fair and reasonable if the procedures specified in
subdivision(f)or(g)are followed or if all of the following apply:
(1) Denial or discipline shall be based on a preponderance of the evidence.
In determining the basis for the denial or discipline,the council may consider
all written documents or statements as evidence, but shall weigh the
reliability of those documents or statements.
(2) The provisions of the procedure are publicly available on the council's
Internet Web site.
(3) The council provides 15 calendar days prior notice of the denial or
discipline and the reasons for the denial or discipline.
(4) The council provides an opportunity for the applicant or certificate
holder,to be heard, orally or in writing,not less than five days before the
85
-13— Ch.406
effective date of the denial or discipline,by a person or body authorized to
decide whether the proposed denial or discipline should go into effect.
(f) (1) Notwithstanding any other law, if the council receives notice
that a certificate holder has been arrested and charges have been filed by
the appropriate prosecuting agency against the certificate holder alleging a
violation of subdivision(b)of Section 647 of the Penal Code or any other
offense described in paragraph(11)of subdivision(a)of Section 4609,the
council shall immediately suspend, on an interim basis, the certificate of
that certificate holder,and take all of the following additional actions:
(A) Notify the certificate holder at the address last filed with the council
that the certificate has been suspended and the reason for the suspension
within 10 business days.
(B) Provide notification of the suspension by email to the clerk or other
designated contact of the city, county, or city and county in which the
certificate holder lives or works,pursuant to the council's records,within
10 business days.
(C) Provide notification of the suspension by email to any establishment
or employer, whether public or private,that the council has in its records
as employing the certificate holder,within 10 business days.
(2) Upon notice to the council that the charges described in paragraph
(1)have resulted in a conviction,the council shall permanently revoke the
suspended certificate. The council shall provide notice to the certificate
holder, at the address last filed with the council by a method providing
delivery confirmation,within 10 business days that it has evidence of valid
record of conviction and that the certificate will be revoked unless the
certificate holder provides evidence within 15 days from the date of the
council's mailing of the notice that the conviction is either invalid or that
the information is otherwise erroneous.
(3) Upon notice that the charges described in paragraph(1)have resulted
in an acquittal or have been otherwise dismissed prior to conviction, the
certificate shall be immediately reinstated and the certificate holder and any
establishment or employer that received notice pursuant to this section shall
be notified of the reinstatement within 10 business days.
(g) (1) Notwithstanding any other law,if the council determines that a
certificate holder has committed an act punishable as a sexually related
crime or a felony that is substantially related to the qualifications,functions,
or duties of a certificate holder,the council may immediately suspend the
certificate of that certificate holder.A determination to immediately suspend
a certificate pursuant to this subdivision shall be based upon a preponderance
of the evidence and the council shall also consider any available credible
mitigating evidence before making a decision. Written statements by any
person shall not be considered by the council when determining whether to
immediately suspend a certificate unless made under penalty of perjury. If
the council suspends a certificate in accordance with this subdivision,the
council shall take all of the following additional actions:
(A) Notify the certificate holder within 10 business days,at the address
last filed with the council,by a method providing delivery confirmation,
85
Ch.406 —14—
that the certificate has been suspended,the reason for the suspension,and
that the certificate holder has the right to request a hearing pursuant to
paragraph(2).
(B) Notify by email or any other means consistent with the notice
requirements of this chapter, any business or employer,whether public or
private,that the council has in its records as employing or contracting with
the certificate holder for massage services,and the California city,county,
or city and county that has jurisdiction over that establishment or employer,
that the certificate has been suspended within 10 business days.
(2) A certificate holder whose certificate is suspended pursuant to this
subdivision shall have the right to request,in writing,a hearing to challenge
the factual basis for the suspension.If the holder of the suspended certificate
requests a hearing on the suspension, the hearing shall be held within 30
calendar days after receipt of the request. A holder whose certificate is
suspended based on paragraph (1) shall be subject to revocation or other
discipline in accordance with subdivision(a).
(3) If the council determines,after a hearing conducted pursuant to this
subdivision, to lift the suspension, the certificate shall be immediately
reinstated and the certificate holder, any establishment or employer, and
the city, county, or city and county that has jurisdiction over that
establishment or employer,that received notice pursuant to this section shall
be notified of the reinstatement within 10 business days.
(h) Any notice required under this section may be given by any method
reasonably calculated to provide actual notice.Any notice given by mail
shall be given by first-class or certified mail sent to the last address of the
applicant or certificate holder shown on the council's records.
(i) An applicant or certificate holder may challenge a denial or discipline
decision issued pursuant to this section in a court of competent jurisdiction.
Any action challenging a denial or discipline,including any claim alleging
defective notice, shall be commenced within one year after the effective
date of the denial or discipline. If the action is successful, the court may
order any relief, including reinstatement, that it finds equitable under the
circumstances.
0) This section governs only the procedures for denial or discipline
decision and not the substantive grounds for the denial or discipline.Denial
or discipline based upon substantive grounds that violates contractual or
other rights of the applicant or certificate holder,or is otherwise unlawful,
is not made valid by compliance with this section.
4611. (a) It is an unfair business practice for a person to do any of the
following:
(1) To hold himself or herself out or to use the title of"certified massage
therapist" or "certified massage practitioner," or any other term, such as
"licensed,""certified,""CMT,"or"CMP," in any manner whatsoever that
implies or suggests that the person is certified as a massage therapist or
massage practitioner,unless that person currently holds an active and valid
certificate issued by the council pursuant to this chapter.
85
-15— Ch.406
(2) To falsely state or advertise or put out any sign or card or other device,
or to falsely represent to the public through any print or electronic media,
that he or she or any other individual is licensed,certified,or registered by
a governmental agency as a massage therapist or massage practitioner.
(b) In addition to any other available remedies, engaging in any of the
prohibited behaviors described in subdivision (a) constitutes unfair
competition under Section 17200.
4612. (a) Notwithstanding any other law, a city, county, or city and
county shall not enact or enforce an ordinance that conflicts with this chapter
or Section 51034 of the Government Code.
(b) Nothing in this chapter shall prevent a city,county,or city and county
from licensing, regulating, prohibiting, or permitting an individual who
provides massage for compensation without a valid certificate.
4614. (a) Upon the request of any law enforcement agency or any other
representative of a local government agency with responsibility for regulating
or administering a local ordinance relating to massage or massage
establishments,the council shall provide information concerning an applicant
or a certificate holder,including,but not limited to,any of the following:
(1) The current status of an application or certificate.
(2) Any history of disciplinary actions.
(3) The home and work addresses of the applicant or certificate holder.
(4) The name and home and work addresses of any person whose
certificate has been suspended and the length of the suspension,if the work
address is located within the jurisdiction of agency making the request.
(5) Any other information in the council's possession that is necessary
to verify facts relevant to administering the local ordinance.
(b) Upon the request of the council,any law enforcement agency or any
other representative of a local government agency with responsibility for
regulating or administering a local ordinance relating to massage or massage
establishments is authorized to provide information to the council concerning
an applicant or certificate holder, including,but not limited to, any of the
following:
(1) The current status of any local application or permit.
(2) Any history of legal or administrative action taken against the
applicant or certificate holder.
(3) Any information related to criminal activity or unprofessional conduct
allegedly engaged in by a certificate applicant or certificate holder,including,
but not limited to,police reports and declarations of conduct.
(4) The home and work addresses of the applicant or certificate holder.
(5) Any other information in the possession of the law enforcement
agency or other local government agency that is necessary to verify
information or otherwise implement this chapter.
(c) The council shall accept information provided by any law enforcement
agency or any other representative of a local government agency with
responsibility for regulating or administering,a local ordinance relating to
massage and review that information in a timely manner.The council shall
have the responsibility to review any information received pursuant to this
85
Ch.406 —16—
subdivision and to take any actions authorized by this chapter that are
warranted by that information.
4615. (a) The council shall have the responsibility to determine whether
the school from which an applicant has obtained the education required by
this chapter meets the requirements of this chapter.
(1) If the council has any reason to question whether or not the applicant
received the education that is required by this chapter from the school or
schools that the applicant is claiming,the council shall investigate the facts
to determine that the applicant received the required education prior to
issuing a certificate.
(2) For purposes of this section and any other provision of this chapter
that authorizes the council to receive factual information as a condition of
taking any action,the council may conduct oral interviews of the applicant
and others or conduct any investigation deemed necessary to establish that
the information received is accurate and satisfies the criteria established by
this chapter.
(b) The council shall develop policies, procedures, rules, or bylaws
governing the requirements and process for the approval and unapproval of
schools consistent with Section 4601, including any corrective action
required to return a school to approved status. These policies,procedures,
rules, or bylaws shall address topics including, but not limited to, what
constitutes an acceptable curriculum,facility requirements,student-teacher
ratios,clinical practice requirements,and provisions for the acceptance of
accreditation from a recognized accreditation body or other form of
acceptance.The council shall exercise its authority to approve and unapprove
schools and specify corrective action in keeping with the purposes set forth
in Section 4603.
(c) The council may charge a reasonable fee for the inspection or approval
of schools, provided the fees do not exceed the reasonable cost of the
inspection or approval process.
4616. The council shall be sued only in the county of its principal office,
which shall be in Sacramento,unless otherwise designated by the council.
4617. The superior court of a county of competent jurisdiction may,
upon a petition by any person, issue an injunction or any other relief the
court deems appropriate for a violation of this chapter by any person or
establishment operating in that county subject to the provisions of this
chapter.An injunction proceeding under this section shall be governed by
Chapter 3 (commencing with Section 525)of Title 7 of Part 2 of the Code
of Civil Procedure.
4618. The Legislature finds and declares that due to important health,
safety,and welfare concerns that affect the entire state,establishing a uniform
standard of certification for massage practitioners and massage therapists
upon which consumers may rely to identify individuals who have achieved
specified levels of education, training, and skill is a matter of statewide
concern and not a municipal affair,as that term is used in Section 5 ofArtitle
XI of the California Constitution.Therefore,this chapter shall apply to all
85
-17— Ch.406
cities,counties,and cities and counties,including charter cities and charter
counties.
4619. (a) This chapter shall be liberally construed to effectuate its
purposes.
(b) The provisions of this chapter are severable. If any provision of this
chapter or its application is held invalid,that invalidity shall not affect other
provisions or applications that can be given effect without the invalid
provision or application.
(c) If any provision of this chapter or the application of these provisions
to any person or circumstance is held to be invalid,the invalidity shall not
affect other provisions or applications of the chapter that can be given effect
without the invalid provision or application,and to this end the provisions
of this chapter are severable.
4620. (a) On or before June 1,2016,for the time period beginning on
January 1,2015,the council shall provide a report to the appropriate policy
committees of the Legislature that includes all of the following:
(1) A feasibility study of licensure for the massage profession,including
a proposed scope of practice,legitimate techniques of massage,and related
statutory recommendations.
(2) The council's compensation guidelines and current salary levels.
(3) The status of the council's progress towards revising the school
approval process.
(4) Performance metrics,including,but not limited to:
(A) The annual number of denied certificate applications, and a brief
description of the grounds for each decision.
(B) The annual number of suspended,revoked,or otherwise disciplined
certificates,and a brief description of the grounds for each decision.
(C) The number of certificates taken off suspension, and a brief
description of the grounds for each decision.
(D) The number of schools inspected and unapproved and a brief
description of the grounds for each decision to unapprove.
(E) The total number of complaints about certificate holders received
annually, including a subtotal of complaints received from local law
enforcement and the action taken by the council as a result of those
complaints.
(b) The council shall testify in person if requested by the appropriate
policy committees of the Legislature.
4621. (a) This chapter shall remain in effect only until January 1,2017,
and as of that date is repealed,unless a later enacted statute,that is enacted
before January 1,2017,deletes or extends that date.
(b) Notwithstanding any other law,the powers and duties of the council
shall be subject to review by the appropriate policy committees of the
Legislature.
SEC.3. Section 51034 of the Government Code is amended to read:
51034. (a) The Legislature in enacting this chapter recognizes the
existing power of a city or county to regulate a lawful massage business
pursuant to Section 37101, or pursuant to Section 16000 or 16100 of the
85
Ch.406 —18—
Business and Professions Code, or under Section 7 of Article XI of the
California Constitution.
(b) Nothing contained in this chapter shall be a limitation on that existing
power or on the existing authority of a city to license for revenue purposes.
A city, county, or city and county shall not enact or enforce an ordinance
that conflicts with the provisions of this section or Chapter 10.5
(commencing with Section 4600) of Division 2 of the Business and
Professions Code.
(c) Nothing contained in this chapter shall authorize a city, county, or
city and county to do any of the following:
(1) Prohibit a person of one sex from engaging in the massage of a person
of the other sex.
(2) Define a massage establishment as an adult entertainment business,
or otherwise regulate a massage establishment as adult entertainment.
(3) Require a massage establishment to have windows or walls that do
not extend from the floor to ceiling,or have other internal physical structures,
including windows,that interfere with a client's reasonable expectation of
privacy.
(4) Impose client draping requirements that extend beyond the covering
of genitalia and female breasts, or otherwise mandate that the client wear
special clothing.
(5) Prohibit a massage establishment from locking its external doors if
the massage establishment is a business entity owned by one individual with
one or no employees or independent contractors.
(6) Require a massage establishment to post any notice in an area that
may be viewed by clients that contains explicit language describing sexual
acts,mentions genitalia,or specific contraception devices.
(7) Impose a requirement that a person certified pursuant to Chapter 10.5
(commencing with Section 4600) of Division 2 of the Business and
Professions Code take any test,medical examination,or background check
or comply with education requirements beyond what is required by Chapter
10.5 (commencing with Section 4600) of Division 2 of the Business and
Professions Code.
(8) Impose a requirement that an individual holding a certificate issued
in accordance with Chapter 10.5 (commencing with Section 4600) of
Division 2 of the Business and Professions Code,obtain any other license,
permit, certificate, or other authorization to provide massage for
compensation. However,this paragraph shall not be construed to prohibit
a city,county,or city and county from requiring by ordinance that a massage
business or establishment obtain a license, permit, certificate, or other
authorization in order to operate lawfully within the jurisdiction.
(9) Impose a dress code requirement on a person certified pursuant to
Chapter 10.5(commencing with Section 4600)of Division 2 of the Business
and Professions Code in excess of those already imposed pursuant to
paragraph (10) of subdivision (a) of Section 4609 of the Business and
Professions Code.
85
-19— Ch.406
(10) Prohibit a person certified pursuant to Chapter 10.5 (commencing
with Section 4600)of Division 2 of the Business and Professions Code from
performing massage for compensation on the gluteal muscles, prohibit
specific massage techniques recognized by the California Massage Therapy
Council as legitimate,or impose any other specific restriction on professional
practice beyond those set forth in subparagraph (E) of paragraph (1) of
subdivision(a)of Section 4609 of the Business and Professions Code,except
as authorized by Section 460 of the Business and Professions Code.
O
85
Title 5 BUSINESS TAXES, LICENSES AND REGULATIONS
Chapter 5.90 MASSAGE PRACTITIONERS
5.90.010 Title.
This chapter shall be known as the "Massage Practitioner Law of the City of Palm Desert."
5.90.020 Authority.
This chapter is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the
Government Code of the state (commencing with Section 51030) with recognition of the
limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the
state (commencing with Section 4600).
5.90.030 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and
provisions contained in this section shall govern the construction, meaning and application of
words and phrases used in this chapter:
I "Applicant" shall mean an applicant for a certificate of registration 4— .
"California Massage Therapy Council'.' means the massage therapy organization formed
pursuant to California Business and Professions Code Section 4600 et seq., as amended, and
referred to as CAMTC herein.
empieys ef uses on!y eet4ified massage therapists ef pfaetiti iing valid and ettfFefit
state eei4ifieatieas and has satisfied all other r-equkefnerAsl ie previsions of this-
ehapten
I "Certificate of registration" means a certificate issued by the city manager upon
submission of satisfactory evidence that a massage practitioner or therapist has a valid and
current state certification and has satisfied all other requirements pursuant to the provisions of
this chapter.
"Certified massage business" means any business where the only persons employed or used
by that business to provide massage services have current and valid state certifications.
"Certified massage practitioner" means any person holding a current and valid state
certificate issued by the CAMTC pursuant to California Business and Professions Code Section
4600 et seq., as amended, whether as a massage practitioner or massage therapist, as defined
therein.
72500.00762 V 352503.2
"Cert:f:e.l ele pfepr-ete ship" meansaft), fliassage bosiftess ..l er-e theowner- the «l.
per-sen empleyed or- used by that business to provide massage senwes and the wh%er- has a
etiffe.,t a.,..l valid unee„ditional state eert:fieat:e.,
"City manager" means the city manager of the city of Palm Desert, or designee.
"Massage" meansany f'method etr-emi g the external rams of the body for effiedial,
health, massage,ie oses for-
as pai4 of
e e
f:.;etieagainst, sty-eking, kneading, ,bb i tapping, rdin er-_tinw1at:n the yae al
„arts ef'the body, with or- withe„t the aid ef'any Fneehmieal of eleetrieal_appararur__er
r.lianees. a witha without pefnepar, aids e a r„bb l hl,ing aeeeiif, t
� l A
e h e lk ent f
iieseoils, > fWiens, emitments,
IlRod
this > baths, > t not li��ted > Russian, Swedisk,
4apaneseevapef, > > sponge, > fe any other- type of bath.
>
I "Massage" means the scientific manipulation of the soft tissue h, o -Oeer�,4,Cs
"Owner" or "operator" means any and all owners�a massage business ineludifig any e
,
PaAfler-, a S�ar-eheldef, a sole proprietor-, er- any per-son whe has a five per-eent or- gfe
owner-ship interest 4; - business whether- as an individual, eer-per-ate entity, lim�ted-
paler, shareholder- ele pr-eprieto establishment. 671-le `-C �,� 5% OWIje(51�
I "Registered certificate holder" means a per-son or- besiness
12ragtitioner who has been issued a certificate of registration by the city manager.
"State certification" or "state certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business and Professions Code Section 4600 et seq.,
as amended.
.
n f f�the ,manse di fled this ha ter t l , f; t
A. e ••cur�rpa�Scc6c-vrm��i�a-aiccrrc�'cvazxiica—arcaarCzaaiFcc�}r-iS--ixixiir'v�zaa eeffified massage Fid further-, it is unlawful for- any business to provide massage
massage,sefyiees within thp Pity unless all ifflefilheil-1-als the fmssage business to per-fe
>
pruetit}9ieFS:
B. Within ene year- of passage ef the or-dinanee eedified in this ehapter, unless issued
euffent and vand eei4ifieate of r-egistr-afien issued pursuant to this ehapter, it is upAawful for- a
per-son> > e
be engaged
the eper-a4ien
_g b�p > >,20_13)
72500.00762U352503.2
I .90.0505,90.040 Certificates of registration ,.,, ,trans. fable.
A. It is unlawful to practice massage for any form of consideration as a principal,
employee, agent or otherwise within the city, unless a person has a current and valid certificate
of registration issued pursuant to this chapter. This section expressly applies to all massage
practitioners working as individuals unless specifically exempted pursuant to the provisions of
Section 5.87.190.
B. The city manager shall issue a certificate of registration to any certified massage
practitioner who demonstrates the following:
1. A valid and current state certification; and
2. A valid and current California Massage Therapy Council ("CAMTC") issued
identification card.
C. If the application is denied, the city manager shall promptly give the applicant
written notice thereof and the findings for such denial. The applicant may submit a written
request for reconsideration with the city manager within ten calendar days of the date of the
city manager's written notice of denial. The request for reconsideration shall be accompanied
by a fifty-dollar filing fee, or other amount as established from time to time by city council
resolution. Upon receipt of the written request, the city manager shall reconsider the
application together with any new records, documents, or information presented by the
applicant, or discovered by the city, within the time and manner provided in Section 5.87.050.
The city manager's decision on the reconsideration shall be final.
ID. A certificate of registration--in � shall not be transferable.
I3.90.0685.9%= Business license.
All persons shall obtain a business license where required by the city's business license
Iprovisions. The issuance of a certificate of registration is a condition
precedent to the granting of such a business license. Upon the issuance of a certificate of
registration pursuant to this chapter, the applicant shall apply for and furnish the information
necessary to obtain a business license as required by the provisions of this code. No business
license shall be issued until the certificate of registration has been issued and the business
license fee, as provided in this code, has been paid. The business license fee shall be
commensurate with the business license fee charged to other professionals as established by this
code.
I5.90.7u190.060 Certificate of registration expiration and renewal.
A. Certificates of registrational shall be valid for two years from issuance or
as extended pursuant to this chapter.
B. The eity eei4ifieate of r-egistra4iea shall be r-enewed in aeeer-danee with the
72500.00762W352503.2
I ---C-_=a. The registered certificate holder--4Wivk1ual shall apply to the city to renew
such registration within thirty calendar days prior to expiration of the certificate of registration
and shall apply to the city to amend the certificate of registration within thirty calendar days
after any change in the registration information including, but not limited to, a change in the
work address. The city manager may extend the certificate of registration one time during a
renewal period for up to ninety calendar days for individuals who provide timely evidence of a
renewal application to CAMTC. Renewals shall be processed and investigated and the applicant
is required to submit that information which has changed from the last application or renewal.
D. If a renewal application and all required information for the renewal is not received
by the city manager within thirty calendar days after expiration, the certificate of registration
shall be deemed expired and no privilege to provide massage in the city shall exist. {9r-d-1256
§-2, 204-34
3 0.0 5.90.070 Revocation or suspension of certificate of registration.
A. The city manager shall revoke or suspend a certificate of registration issued to
Iindividttals,an individual upon the following grounds:
1. The registered certificate holder is no longer in possession of a current and valid
state certification or CAMTC issued identification card;
2. The registered certificate holder has engaged in fraud, misrepresentation, or false
statements in obtaining or maintaining a certificate of registration.
IB. The term of suspension of any peFmitcertificate of registration shall be not more than
sixty calendar days.
I5.90.0905.90.080 Suspension or revocation notice.
INotice of suspension or revocation of a certificate of registrations shall be made
in compliance with Section 5.87.130.
I3.90.1995.90.090 Appeal from revocation, suspension.
The decision of the city manager to revoke or suspend a certificate of registration may be
appealed by the registered certificate holder in accordance with the procedures set forth in
Section 5.87.140.
I 5.90.1 W5.90.100 Reapplication after denial.
No reapplication for a certificate of registration will be accepted within one year after an
I application or renewal is denied or a certificate of registration is revoked. (rd. 1256 ,
2�
5.°�0 .95 0.110 Compliance with Chapter 5.87.
72500.00762U352503.2
Certified massage practitioners shall comply with all applicable health and safety regulations
I found in Sections 5.87.200 and 5.87.210. (Ord. 125e § 2, 2013)
-90.13AS.90.120 Violation—Penalties.
A. Unless otherwise exempted by the provisions of this chapter, every person, whether
acting as an individual, owner, employee of the owner, operator, or employee of the operators
or whether acting as a mere helper for the owner, employee, or operator, or whether acting as
a participant or worker in any way, who gives massages or conducts a massage business, or
who, in connection with the business, gives or administers, or practices the giving or
administering of, massages or- b.4hs or any of the sa...4eesas defined in this chapter, without
first obtaining state certification and a city certificate of registration, or who sli"
v-ielnteviolates any provision of this chapter, shall be guilty of an i4aaeeltiega misdemeanor.
B. Any massage establishment Hermit
holder in charge or in control of a certified massage business or cci4mca
sole proprietorship who knowingly employs a person who is not in possession of a valid,
unrevoked certificate of registration, or who allows such persons to perform, operate, or
Ipractice within such a place of business, shall be guilty of an44aeliena misdemeanor.
C. Anyone found to have violated any provision set forth herein shall guilty of aii
infr-aetien and awfane found to have vielated I . . . . set fei4h herein fner-e than thfee
shall be guilty of a misdemeanor; however the city attorney
may reduce the penalty to an infraction. The penalties for such violations are as set forth in
Chapter 1.12 of the municipal code.
I 5.90.1405.90.130 Other remedies.
IThe provisions of Section 5.90.130 .95 0.120 are not to be construed as exclusive remedies
and, in the event of violation, the city may pursue any proceedings or remedies otherwise
provided by law.
72500.00762V 352503.2
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I i y O F , �o 1 M 5
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346-o6ii
FAX: 760 341-7098
info@palm-desert.org
CITY OF PALM DESERT
LEGAL NOTICE
NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BY THE PALM
DESERT CITY COUNCIL TO APPROVE AMENDMENTS TO THE PALM DESERT MUNICIPAL
CODE, CHAPTER 5.87 MASSAGE ESTABLISHMENTS AND CHAPTER 5.90 MASSAGE
PRACTITIONERS OF TITLE 5 BUSINESS TAXES, LICENSES AND REGULATIONS, AND TO
TITLE 25 ZONING REGARDING MASSAGE BUSINESS ZONING AND LAND USE
RESTRICTIONS BASED ON ASSEMBLY BILL 1174.
Project Location: City wide
Recommendation: Staff is recommending approval of the above noted request.
Public Hearing: The public hearing before the City Council will be held on November 13, 2014,
at 4:00 p.m.
Comment Period: Based on the time limits defined by CEQA, your response should be sent at
the earliest possible date. The public comment period on this project is from October 31, 2014
to November 13, 2014.
Public Review: All related documents are available for public review daily at City Hall.
Please submit written comments to the Planning Department. If any group challenges the
action in court, issues raised may be limited to only those issues raised at the public
hearing described in this notice or in written correspondence at, or prior to the City
Council hearing. All comments and any questions should be directed to..
Kevin Swartz, Assistant Planner
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
(760) 346-0611
kswartz@cityofpalmdesert.org
Publish: Desert Sun RACHELLE KLASSEN, City Clerk
November 1, 2014 Palm Desert City Council
ORDINANCE NO. 1277
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING AMENDMENTS TO THE PALM
DESERT MUNICIPAL CODE TITLE 5 (BUSINESS TAXES, LICENSES,
AND REGULATIONS) CHAPTERS 5.87 AND 5.90, AND TITLE 25
(ZONING) CHAPTERS 25.16, 25.28, 25.34, AND 25.99 PERTAINING TO
THE REGULATION OF MASSAGE ESTABLISHMENTS BASED UPON
ASSEMBLY BILL 1147
CASE NO: ZOA 14-351
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 4th day of November, 2014, hold a duly noticed public hearing to consider the request by
the City of Palm Desert and recommended approval to the City Council to amend Title 25
Zoning Chapters 25.16, 25.28, 25.34, and 25.99; and
WHEREAS, the City Council of the City of Palm Desert, California, did on the 13th
day of November, 2014, hold a duly noticed public hearing to consider the request by the
City of Palm Desert for approval of the above noted; and
WHEREAS, California Government Code, Section 65800 et seq. authorizes the City
of Palm Desert ("City") to adopt and administer zoning laws, ordinances, rules and
regulations by cities as a means of implementing the General Plan; and
WHEREAS, the California Constitution and Government Code Section 51030 et
seq., authorizes the City to regulate massage businesses by imposing reasonable
standards relative to the skill and experience of massage practitioners and reasonable
conditions on the operation of massage establishments; and
WHEREAS, in 2008, the Legislature adopted Senate Bill 731, which created the
California Massage Therapy Council, a state-organized nonprofit organization with
regulatory authority over the certification of massage practitioners throughout the State of
California; and,
WHEREAS, the City amended Chapters 5.87 and 5.90 of the Palm Desert Municipal
Code ("Code") to comply with the regulations set forth in Senate Bill 731; and
WHEREAS, Senate Bill 731 was widely criticized by local agencies as providing
massage businesses with almost unprecedented protection from local zoning and land use
authority, and interfering with local law enforcement efforts to close massage businesses
allowing prostitution and other illegal activities; and
WHEREAS, Assembly Bill 1147, signed recently by Governor Jerry Brown, was
created in response to criticism against Senate Bill 731 and allows local agencies to impose
reasonable zoning, business licensing, and health and safety requirements on massage
establishments; and
ORDINANCE NO. 1277
WHEREAS, the City wishes to amend portions of the Palm Desert Municipal Code
Titles 5 and 25 to ensure that the City regulates massage practitioners and massage
establishments in compliance with the provisions of AB 1147.
NOW, THEREFORE, IT SHALL BE ORDAINED by the City Council of the City of
Palm Desert, California, that the following sections of the Palm Desert Municipal Code are
hereby amended as follows:
SECTION 1: The City Council finds that the revisions to the Palm Desert Municipal
Code proposed by the above referenced ordinance are in the public interest and reasonably
related to the public welfare because they update the City's massage regulations in order
to: protect the public health from unskilled massage practitioners; to protect the public
morals from illegal prostitution; and to achieve community land use planning and economic
development goals established in the City of Palm Desert General Plan, while maintaining
compliance with California Assembly Bill 1147.
SECTION 2: Chapter 5.87 of the Palm Desert Municipal Code is hereby amended to
read in full as shown in Exhibit "A."
SECTION 3: Chapter 5.90 of the Palm Desert Municipal Code is hereby amended to
read in full as shown in Exhibit "B."
SECTION 4: Table 25.16-1 in Section 25.16.030 (Allowed Land Uses and Permit
Requirements) of the Palm Desert Municipal Code is hereby amended to add the following
rows under Retail, Service, and Office Uses in alphabetical order as recommended by the
Planning Commission:
Table 25.16-1: Use Matrix for Commercial and Industrial Districts
Commercial/Industrial District
i
I(P=Permitted; A =:Administrative Use
Permit; C= Conditional Use Permit, N Special
Not Permitted) ( Use
iProvisions
r
OP C-1 PC- PC- PC- PC- SI PI
1 2 3 4
Retail, Service, and Office
Uses
Accessory massage P P N P P P N N 25.34.160
establishments
Independent stand-alone N P N P P N N N 25.34.160
massage establishments
SECTION 5: Section 25.28.040 (El Paseo Overlay District) of the Palm Desert
Municipal Code is hereby amended by adding the following language to item B.9. as
follows:
ORDINANCE NO.
1277
"B. Permitted uses. The following retail/personal service uses shall be liberally
construed to be permitted uses within the El Paseo pedestrian commercial overlay:
9. Personal care/products shops and services (including barbering, cosmetology,
and accessory massage establishments)."
SECTION 6: Section 25.34.160 (Massage Establishments) of the Palm Desert
Municipal Code is hereby added as follows:
"25.34.160 Massage Establishments
A. No independent stand-alone massage establishment shall operate in any zone
other than the C-1 (excluding the El Paseo Overlay District), PC-2, and PC-3 zones.
B. No accessory massage establishment shall operate in any zone other than the C-
1, O.P., PC-2, PC-3, and PC-4 zones.
C. No independent stand-alone massage establishment shall operate within one
thousand (1,000) feet of any other stand-alone massage establishment. The measure of
reference distance in this subsection shall be a straight line from the nearest property line
containing the independent stand-alone massage establishment to the nearest property line
of another independent stand-alone massage establishment. All existing independent
stand-alone massage establishments will be allowed to continue business until such
business ceases to operate for more than thirty (30) days."
SECTION 7: Section 25.99.020 (Land Use Definitions) of the Palm Desert Municipal
Code is hereby amended to include the following definitions in alphabetical order:
"Accessory massage establishment. A certified massage establishment located
within a hotel, beauty salon, day spa, athletic club, chiropractors office, doctors office,
physical therapy office, or yoga or Pilates studio where revenue from massage services is
less than 50% of the total revenue of the hotel, beauty salon, day spa, athletic club, doctor
or chiropractor's office, or yoga or Pilates studio."
"Certified massage establishment. Any massage establishment where the only
persons employed or used by that establishment to provide massage services have current
and valid state certifications."
"Independent stand-alone massage establishment. Any certified massage
establishment where revenue from massage services exceeds 50% of the establishment's
total revenue."
SECTION S: The City Council also finds that the amendments to Title 25 Zoning of
the Palm Desert Code are consistent with the City of Palm Desert General Plan in that the
proposed amendments preserve the commercial corridors. Highway 111 is the second
major retail corridor of the City, and while independent stand-alone massage
establishments can contribute to the positive development or economic vitality of the City,
an over-concentration of these businesses does not. The City's General Plan is to provide a
variety of retail and dining offerings in the commercial zones such as Highway 111 that
ORDINANCE NO. 1277 '
encourage pedestrian-friendly streetscapes that are open and inviting. Massage
establishments are a destination business, and when part of a shopping center, do not
attract the same pedestrian foot traffic since they tend to blackout their business windows to
provide a relaxing interior environment. AB 1147 allows the City to be more restrictive along
the City's commercial corridors and throughout the City in general, in support of the goals,
programs, and policies established in the Economic & Fiscal and Community Design
Elements of the General Plan. Staff believes the proposed amendments achieve the City's
overall goal, while keeping in compliance with AB 1147.
SECTION 9: If any section, subsection, clause or phrase of this Ordinance or any
part thereof is for any reason held to be invalid, unconstitutional, or unenforceable by the
decision of any court of competent jurisdiction, such decision shall not affect the validity of
the remaining portion of the Ordinance. The City Council declares that it would have passed
each section, subsection, paragraph, sentence, clause, or phrase thereof, irrespective of
the fact that nay one or more section, subsection, sentence, clause or phrase would be
declared invalid, unconstitutional or unenforceable.
SECTION 10: Pursuant to state and local environmental regulations, it has been
determined that the regulations encompassed in this Ordinance are not subject to the
California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity
will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of
the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has
no potential for resulting in physical change to the environment, directly or indirectly.
SECTION 11: The City Clerk of the City of Palm Desert, California, is hereby
directed to publish this Ordinance in the Desert Sun, a newspaper of general circulation,
published and circulated in the City of Palm Desert, California, and shall be in full force and
effective on January 1, 2015 after its adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm
Desert, California, at its regular meeting held on the 11t1hday ofnecember 2014, by the
following vote, to wit:
AYES: HARNIR, JONATHAN, SPIEGEL, TANNER, and WEBER
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
SUSAN MARIE WEBER, MAYOR
ATTEST:
RACFiffLLS D. RILASS5N, Clify Clerk
City of Palm Desert, California
�9- 1 5 - (Lt
ORDINANCE NO. 127
Exhibit "A"
Title 5 BUSINESS TAXES, LICENSES AND REGULATIONS
Chapter 5.87 MASSAGE ESTABLISHMENTS
5.87.010 Title.
This chapter shall be known as the "Massage Establishment Law of the City of Palm
Desert."
5.87.020 Authority.
This chapter is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the
Government Code of the state (commencing with Section 51030) with recognition of the
limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of
the state (commencing with Section 4600).
5.87.030 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and
provisions contained in this section shall govern the construction, meaning and application
of words and phrases used in this chapter:
"Accessory massage establishment" means a certified massage establishment located
within a hotel, beauty salon, day spa, athletic club, chiropractors office, doctors office,
physical therapy office, or yoga or Pilates studio where revenue from massage services is
less than 50% of the total revenue of the hotel, beauty salon, day spa, athletic club,
chiropractors office, doctors office, physical therapy office, or yoga or Pilates studio.
"Applicant" means an applicant for a massage establishment permit.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code Section 4600 et seq., as amended,
and referred to as CAMTC herein.
"Certified massage establishment" means any establishment where the only persons
employed or used by that establishment to provide massage services have current and
valid state certifications, and the owner has a current massage establishment permit, and all
practioners and owners have a business licenses.
"Certified massage practitioner" means any person holding a current and valid state
certificate issued by the CAMTC pursuant to California Business and Professions Code
Section 4600 et seq., as amended, whether as a massage practitioner or massage
therapist, as defined therein.
ORDINANCE NO. 1277
"City manager" means the city manager of the city of Palm Desert, or designee.
"Communication device" means-any video*dr other type of camera device that is either
free standing or is temporarily or permanently mounted to a fixed surface indoors or
outdoors.
"Independent stand-alone massage establishment" means any certified massage
establishment where revenue from massage services exceeds 50% of the massage
establishment's total revenue.
"Massage" means the scientific manipulation of the soft tissues.
"Massage establishment permit" means a permit issued by the city manager upon
submission of satisfactory evidence as required in Section 5.87.050 of this chapter.
"Massage establishment permit holder" means a person or establishment that has been
issued a massage establishment permit by the city manager.
"Owner" or "operator" means any and all owners of a massage establishment including
any of the following persons: the managing responsible officer/employee, a general partner,
a limited partner, a shareholder, or a sole proprietor, or any person who has a five percent
or greater ownership interest in a massage business whether as an individual, corporate
entity, limited partner, shareholder or sole proprietor.
"State certification" or "state certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business and Professions Code Section 4600 et
seq., as amended.
5.87.040 State certification and city massage establishment permit required.
Within six months of passage of the ordinance codified in this chapter, it is unlawful for any
establishment to provide massage services within the city unless the massage
establishment has obtained a massage establishment permit from the city and all
individuals providing massage at said massage establishment are state certified massage
practitioners. Any non-conforming uses shall be subject to Chapter 25.62.
5.87.050 Certified massage establishment—Permit required.
A. Any person desiring to own or operate an establishment to provide massage
services within the city shall file a massage establishment permit application on forms
provided by the city manager, submitted under penalty of perjury and containing all of the
following information:
1. State Certification Verification and Applicant Information.
a. A certified massage establishment applicant/owner shall produce:
i. A valid and current driver's license and/or identification card issued by a state or
federal governmental agency or other photographic identification bearing a bona fide seal
by a foreign government;
ORDINANCE NO. 1277
ii. A statement that the proposed massage establishment shall employ only certified
massage practitioners along with copies of valid and current state certificates for all
massage practitioners who will provide massage services at the massage establishment
and copies of their current and valid CAMTC issued identification cards;
iii. Acceptable proof that the applicant and all certified massage practitioners employed
or who will be employed by the massage establishment are at least eighteen years of age;
iv. Two photographs of the applicant to be taken by the police department;
v. Applicant's current address, telephone number, and previous two residence
addresses including dates at each address;
vi. Applicant's business, occupation, and employment history for ten years preceding
the date of current or proposed employment, the inclusive dates of same; the name and
address of any massage establishment or other like establishment owned or operated by
any applicant including, but not limited to, history, if any, with any agency, board, city,
county, territory, or state; and dates of issuance, denial, restriction, revocation, or
suspension, and the reasons therefore of any individual or establishment permit; and
vii. Fingerprints, subject to a fee to cover actual costs, to submit to Department of
Justice through LiveScan or equivalent, and may submit additional fee to cover the actual
costs for subsequent arrest notice for renewal applications, to determine whether the
applicant has any of the following:
(A) All convictions for any crime involving conduct which requires registration under
California Penal Code Section 290 (Sex Offender Registration Act),
(B) Convictions of violations of California Penal Code Sections 266i (pandering), 315
(keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing
upon person to visit place for gambling or prostitution), 647(b) (prostitution), 653.23
(supervision of prostitute),
(C) Convictions of any felony offense involving the sale of a controlled substance
specified in Section 1104, 11055, 11056, 11057, or 11058 of the California Health and
Safety Code,
(D) Convictions of crimes designated in California Government Code Section 51032
(massage—grounds for denial of license), or any crime involving dishonesty, fraud, deceit,
violence or moral turpitude,
(E) All injunctions for nuisances under California Penal Code Sections 11225 through
11235 (red light abatement law),
(F) Convictions in any other state of any offense which, if committed or attempted in this
state, would have been punishable as one or more of the referenced offenses of this
subdivision,
(G) Conspiracy or attempt to commit any such offense described in subsections (vi)(A)
through (F).
ORDINANCE NO.1277
viii. If the city finds that an applicant's background check results in a finding that the city
determines is relevant to owning or operating a massage establishment, the city may
regulate that establishment in any manner it deems proper that is in accordance with the
law.
2. General Establishment Information.
a. The establishment name, proposed establishment address, and telephone number
of the massage establishment.
b. The name and permanent address of the owner of the property upon which the
applicant intends to locate the massage establishment.
c. In the event the applicant is not the owner of record of the real property upon which
the massage establishment is or will be located, the application must be accompanied by a
notarized statement from the owner of record of the real property acknowledging that a
massage establishment is or will be located on the property. In addition, the applicant must
furnish a copy of the lease or rental agreement pertaining to the premises in which the
massage establishment will be located.
d. The applicant shall provide the name and permanent address of the owner of the
property at which the applicant intends to locate the massage establishment. If the property
owner is a corporation, the application shall include the name of the corporation exactly as
shown in its articles of incorporation or charter together with the state and date of
incorporation and the names and residence addresses of each of its current officers and
directors, and of each stockholder holding more than five percent of the stock of that
corporation, and its registered agent for receipt of process. The applicant shall provide the
address of the corporation itself, if different than the address of the massage establishment.
If the property owner is a partnership, the application shall set forth the name and residence
address of each partner, including limited partners. If the property owner is a limited
partnership, it shall further a copy of its certificate of limited partnership as filed with the
county clerk. If one or more of the partners is a corporation, the provisions of this subsection
pertaining to corporate applicants shall apply to the corporate partner.
e. The name(s) of person(s) having the management or supervision of the applicant's
establishment.
f. Such other identification and information necessary to discover the truth of the
matters hereinbefore specified as required to be set forth in the application.
g. A description of all services to be provided by the applicant's proposed massage
establishment.
h. Name and address of any massage establishment or other like establishment owned
or operated by any person whose name is required to be given pursuant to this section.
ORDINANCE NO. 1277
3. Corporate Information.
a. If the applicant is a corporation, the application shall include the name of the
corporation exactly as shown in its articles of incorporation or charter together with the state
and date of incorporation and the names and residence addresses of each of its current
officers and directors, and of each stockholder holding more than five percent of the stock of
that corporation, and its registered agent for receipt of process. The applicant shall provide
the address of the corporation itself, if different than the address of the massage
establishment.
b. If the applicant is a partnership, the application shall set forth the name and
residence address of each partner, including limited partners. If the applicant is a limited
partnership, it shall further a copy of its certificate of limited partnership, as filed with the
county clerk. If one or more of the partners is a corporation, the provisions of this subsection
pertaining to corporate applicants shall apply to the corporate partner.
c. The applicant, corporation or partnership shall designate one of its officers or
general partners to act as its responsible managing officer/employee. Such person shall
complete and sign all application forms required of an individual applicant under this
chapter. The corporation's or partnership's responsible managing officer must, at all times,
meet all of the requirements set by this chapter or the corporation or partnership permit
shall be suspended until a responsible managing officer who meets such requirements is
designated. If no such person is found within ninety calendar days, the corporation or
partnership permit is deemed canceled and a new application for a massage establishment
permit must be filed.
4. Authorization for the City of Palm Desert, its agents and employees, to seek
information and conduct an investigation into the truth of the statements set forth in the
application and into the background of the applicant.
5. A certificate of compliance from the health officer for the city of Palm Desert (as
designated by the city manager) that certifies that the premises of the massage
establishment will meet all applicable codes and regulations must be submitted prior to
application approval.
6. Zoning consistency check in writing from city's community development department.
A zoning consistency check does not confer or authorize any entitlement to a use permit or
building permit or similar, which process, if applicable, is separate from the massage
establishment permit process.
7. A signed statement that the owner/applicant shall be responsible for the conduct of
all employees or independent contractors working on the premises of the establishment and
that failure to comply with California Business and Professions Code Section 4600 et seq.,
with any local, state, or federal law, or with the provisions of this chapter may result in the
revocation of the,city-issued permit.
ORDINANCE NO. 1277
8. Payment of an application fee as per Section 5.87.080.
B. Upon receipt of the application, the city manager shall refer the application to other
city departments that shall inspect the premises, if any, proposed to be used as a massage
establishment and shall make a written recommendation to the city manager concerning
compliance with the respective requirements.
C. The city manager or authorized representative shall have up to sixty calendar days
after the submission of all required information to complete his or her investigation.
5.87.060 Certified massage establishment—Location.
A. No independent stand-alone massage establishment shall operate in any zone other
than the C-1 (excluding the El Paseo Overlay District), PC2, and PC3 zones.
B. No accessory massage establishment shall operate in any zone other than the C-1,
O.P., PC2, PC3, and PC4 zones.
C. No independent stand-alone massage establishment shall operate within one
thousand feet of any other stand-alone massage establishment. The measure of reference
distance in this subsection shall be a straight line from the nearest property line containing
the independent stand-alone massage establishment to the nearest property line of another
independent stand-alone massage establishment. All existing independent stand-alone
massage establishments will be allowed to continue business until such business ceases to
operate for more than thirty (30) days.
5.87.070 Certified massage establishment—Permit issuance.
A. The city manager may issue a massage establishment permit to a certified massage
establishment that demonstrates all of the following:
1. That the operation, as proposed by the applicant, if permitted, complies with all
applicable laws, including, but not limited to, the city's building, zoning, business license,
and health and safety regulations.
2. The application is complete.
3. The applicant has not engaged in or been complicit in, any activity or inactivity that
would lead to suspension or revocation of a massage establishment permit as set forth in
this chapter within five years preceding the application.
4. The massage establishment employs or uses only state certified massage
practitioners whose certifications are valid and current and that owners of the state
certificates are the same persons to whom CAMTC issued valid and current identification
cards.
5. That the applicant has not made a material misrepresentation in this application or
with respect to any other document or information required by the city with respect to this
application or for an application for a city massage permit under applicable law within the
last five years.
' 1277
ORDINANCE N0.
6. That the background check for any applicant/owner authorized by this chapter shows
that such person has not been required to register under the provisions of Section 290 of
the California Penal Code; within five years preceding the application had a conviction in
court of competent jurisdiction for any of the crimes identified in Section
5.87.050(A)(1)(d)(vi)(B) through (G); has not had an individual or establishment permit or
license with any agency, board, city, county, territory, or state, denied, revoked, restricted,
or suspended within the last five years; and has not been subject to an injunction for
nuisance under Penal Code Sections 11225 through 11235 within the last five years.
B. If the application is denied, the city manager shall promptly give the applicant written
notice thereof and the findings for such denial. The applicant may submit a written request
for reconsideration with the city manager within ten calendar days of the date of the city
manager's written notice of denial. The request for reconsideration shall be accompanied by
a fifty-dollar filing fee, or other amount as established from time to time by city council
resolution. Upon receipt of the written request, the city manager shall reconsider the
application together with any new records, documents, or information presented by the
applicant, or discovered by the city, within the time and manner provided in Section
5.87.050. The city manager's decision on the reconsideration shall be final.
5.87.080 Massage establishment permit application fee.
A massage establishment permit application fee shall be set by resolution of the city council
and shall be required for all applicants.
5.87.090 Business license.
All applicants shall obtain a business license where required by the city's business license
provisions. The issuance of a massage establishment permit is a condition precedent to the
granting of such a business license. Upon the issuance of a massage establishment permit
pursuant to this chapter, the applicant shall apply for and furnish the information necessary
to obtain a business license as required by the provisions of this code. No business license
shall be issued until the massage establishment permit has been issued and the business
license fee, as provided in this code, has been paid.
5.87.100 Notification of changes.
Every massage establishment permit holder shall report in writing to the city manager any
and all changes of address or ownership of the massage establishment, and any changes
or transfers of massage practitioners employed in the establishment or practice within thirty
calendar days of said change(s).
5.87.110 Massage establishment permit expiration and renewal.
A. Massage establishment permits shall be valid for two years from issuance or as
extended pursuant to this chapter.
B. The city massage establishment permit shall be renewed in accordance with the
expiration schedule set forth in this section.
ORDINANCE NO. 1277 ,
C. If a massage establishment permit holder wishes to renew such permit prior to its
expiration, he or she must apply to the city to renew such permit within fifteen calendar days
prior to expiration.
D. If a renewal application and all required information for the renewal is not received
upon expiration, the massage establishment permit shall be deemed expired and no
privilege to provide massage services in Palm Desert shall exist. Renewals shall be
processed and investigated and the applicant is required to submit that information which
has changed from the last application or renewal, and a renewal application fee as provided
in Section 5.87.080.
5.87.120 Revocation or suspension of massage establishment permit.
A. Massage establishment permits issued to a certified massage establishment shall be
suspended or revoked by the city manager upon any of the following grounds:
1. The massage establishment permit holder has been arrested or filing of charges of a
crime that would have caused denial of the massage establishment permit.
2. The massage establishment permit holder has made a material misrepresentation
on the application for massage establishment permit or renewal.
3. The massage establishment permit holder has engaged in conduct or operated the
certified massage establishment or as a massage practitioner in a manner which violates
any of the provisions of this chapter, any conditions of the permit, or any of the laws which
would have been grounds for denial of the permit. A massage therapist or massage
practitioner employed by the massage establishment has been arrested for violating the
provisions of Section 647(a) and (b) of the California Penal Code, or any other state law
involving a crime of moral turpitude, or the premises for which the permit was issued is
being operated in an illegal or disorderly manner, and such practices shall constitute in
immediate suspension and/or revocation of certificate of registration.
4. The massage establishment permit holder employs or uses one or more non-
certified massage practitioners to perform massage services.
5. Violations of this chapter or of California Business and Professions Code Section
4600 et seq., have occurred on the establishment premises.
6. The massage establishment permit holder has failed to comply with one or more of
the zoning, business license, or health and safety requirements under this chapter.
7. The massage establishment permit holder has engaged in fraud, misrepresentation,
or false statements in obtaining or maintaining a massage establishment permit.
8. There is an urgency of immediate action to protect the public from injury or harm.
B. The term of suspension shall be not more than sixty calendar days.
C. The suspension or revocation shall be effective immediately by the city manager.
ORDINANCE NO. 127
D. If a massage establishment permit is suspended or revoked, the suspension shall be
effective immediately by the City Manager or his designees. Such suspension shall be
accomplished by posting a notice thereof on the premises. Such notice shall state the
reasons for the suspension. The City Manager or his designees shall direct or cause the
premises to be closed and locked against use by the public in order to insure compliance
with an order of suspension. The aggrieved party may pursue a subsequent appeal or
hearing by following the procedures set forth in this chapter.
E. It is unlawful for any person to conduct the business of a massage establishment or
carry on the business of massage while the massage establishment permit remains
suspended or revoked pending a hearing.
F. Any massage establishment permit or certificate of registration for a massage
business existing at the time this ordinance is adopted may be revoked or suspended as
provided in this chapter.
5.87.130 Suspension or revocation notice.
A. Notice shall be given to the massage establishment permit holder by letter stating
the grounds for proposed revocation or suspension. Notice shall be given by personal
service or certified, registered, or first class mail of the letter to the address shown on the
last application or renewal.
B. If the massage establishment permit is suspended or revoked, the massage
establishment permit shall be surrendered.
C. Service shall be deemed complete when personal service is made or when the
notice letter is delivered by certified, registered, or first class mail.
5.87.140 Appeal from revocation, suspension.
The decision of the city manager to suspend or revoke a massage establishment permit
may be appealed by the massage establishment permit holder in accordance with the
following procedures:
A. All appeals shall be in writing and shall contain the following information: (1) name(s)
of the person filing the appeal (appellants); (2) a brief statement in ordinary and concise
language of the grounds for the appeal; and (3) the signatures of all parties named as
appellants and their mailing addresses.
B. A filing fee for an appeal of one hundred dollars, or other amount as established
from time to time by city council resolution, must be paid to the city at or prior to the time of
the filing of the appeal.
C. Any appeal filed that fails to provide all of the information required by this section
and the appropriate filing fee shall be deemed incomplete.
ORDINANCE NO.
1211 '
D. A complete and proper appeal of the suspension or revocation of a massage
establishment permit shall be filed with the city clerk within ten calendar days of service of
the letter revoking or suspending the massage establishment permit or within ten calendar
days of any other action that is the subject of appeal.
E. After receiving the written appeal, the city clerk shall schedule a hearing before the
city council. The city council may refer the matter to a hearing officer. The city council may
decide the matter based on the recommendations and findings of the hearing officer, if it so
chooses.
F. The decision of the city councilor hearing officer shall be final.
5.87.150 Reapplication after denial or revocation.
No reapplication for a massage establishment permit will be accepted within two years after
an application or renewal is denied or a massage establishment permit is revoked. If the
application or renewal is denied for the sole reason that the application or renewal
application is incomplete, reapplication may occur to complete the application or renewal
application, however, an additional application fee will be charged per each submitted
application. If an application is denied for the sole reason that a massage practitioner does
not possess the required training, reapplication may occur when the required training is
completed.
5.87.160 Inspection by city and notices of violation.
A. The city shall have the right to enter the premises from time to time during regular
business hours prior to the issuance of a massage establishment permit and subsequently
for the purpose of making reasonable inspections to enforce compliance with this chapter
and with building, fire, electrical, plumbing, and/or health and safety regulations. In the
event a massage establishment permit has been issued, it may be revoked or suspended in
the manner set forth in this chapter. It is unlawful for any massage establishment
owner/operator to fail to allow code compliance or police officers into the premises or hinder
such officers in any manner. During an inspection, code compliance and police officers may
also verify the identity of the owner(s) and all employees.
B. Whenever city officials make an inspection of a massage establishment and finds
that any provision of this chapter has been violated, he or she shall give notice of such
violation by means of an inspection report or other written notice. In any such notification,
the investigating person shall:
1. Set forth the specific violation or violations found, and shall notify the massage
establishment permit holder that failure to comply with any notice issued in accordance with
the provisions of this chapter may result in the revocation or suspension of the massage
establishment permit.
2. The massage establishment permit holder may be issued a warning that any future
violation of this chapter may result in suspension or revocation of the massage
establishment permit, or the city officials may establish a specific and reasonable period of
' 1277
ORDINANCE N0.
time for the correction of the violation or violations. No time to correct need be given for
health and safety violations or violations of criminal law.
3. The massage establishment permit holder and operator shall take immediate action
to correct violations and city officials may re-inspect the establishment for compliance.
5.87.170 Transfer of massage establishment permit.
A massage establishment permit shall not be transferable except with the written approval
of the city manager. A written application for such a transfer shall be made to the city
manager. The application for such transfer shall contain the same information as required
herein for an initial application for a massage establishment permit as set forth in Section
5.87.050. In the event of denial of such transfer, notification of and reasons for denial shall
be set forth in writing and shall be sent to the applicant by means of registered or certified
mail or delivered in person.
5.87.180 Special events notification required.
When extra massage practitioners are required for a special event at or organized by a
certified massage establishment, the owner, manager, or operator of the establishment
must supply the city with a list of certified massage practitioners who will be working at the
event, copies of their certificates of registration, and any other information the city may
reasonably require, not less than two weeks before the date of the event.
5.87.190 Exemptions.
The provisions of this chapter shall not apply to the following classes of persons or
establishments while engaged in the performance of their duties:
A. Physicians, surgeons, chiropractors, osteopaths, acupuncturists, nurses or physical
therapists duly licensed to practice their respective professions in the state of California and
working within the scope of their licenses.
B. Barbers, cosmetologists, estheticians, and manicurists who are duly licensed under
the laws of the state of California while engaging in practices within the scope of their
licenses, except that this provision shall apply solely to the massaging of the neck, face,
hands and feet, and/or scalp of the customers, and this exception shall not apply to full body
work or full body massage. Further, this provision shall apply solely to businesses that
generate less than fifty percent of their gross revenue from full body work or full body
massage.
C. Hospitals, nursing homes, sanatoriums, or any other health facilities duly licensed by
the state of California.
D. Accredited junior colleges and colleges or universities whose coaches and trainers
are acting within the scope of their employment.
E. Trainers of amateur, semi-professional or professional athletes or athletic teams
while engaging in their training responsibilities for and with athletes; and trainers working in
conjunction with a specific athletic event such as an outdoor road or bike race.
ORDINANCE NO. 1277
F. Health clubs, health spa, gymnasium, or other similar facility designed or intended
for general physical exercise or conditioning in which the furnishing of full body work or full
body massage generates less than fifty percent of the establishment's gross revenue.
However, persons performing massage services shall obtain a state certification and city
massage establishment permit in conformance with Chapter 5.90 Massage Practitioners.
5.87.200 Health and safety requirements—Building requirements.
All premises of certified massage establishments shall be subject to periodic inspection by
the city for compliance with health, safety, and building standards and all such
establishments shall comply with, in addition to zoning and building codes, the following
requirements:
A. A recognizable and readable sign shall be posted at the main entrance of each
massage establishment identifying the establishment as such establishment; provided, that
all such signs shall comply with the sign regulations of the city.
B. The owner or operator of each massage establishment shall display the massage
establishment permit issued to the establishment and to each massage practitioner
employed in the establishment in an accessible and conspicuous place on the premises.
Certified massage practitioners shall have his or her original state certificate at his or her
place of business and his or her identification card in his or her possession while providing
massage services.
C. Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated,
designed and provided in accordance with the fire department and building department
regulations and standards.
D. All building openings, entries, windows, etc., shall be located, covered or screened in
such a manner as to prevent a view from the outside of the building into dressing rooms,
treatment rooms, restrooms, and other areas where patrons of the establishment may not
be fully dressed.
E. Lighting in parking lots shall be in compliance with Chapter 24.16 of the municipal
code.
F. Construction of rooms used for toilets, baths and showers shall be made waterproof
with approved waterproofed materials and shall be installed in accordance with the city
building code. Plumbing fixtures shall be installed in accordance with the city plumbing
code:
1. Steam rooms and shower compartments shall have waterproof floors, walls and
ceilings approved by the city.
2. Floors of wet and dry heat rooms shall be adequately pitched to one or more floor
drains properly connected to the sewer. Dry heat rooms with wooden floors need not be
provided with pitched floors and floor drains.
ORDINANCE NO. 1277
3. A source of hot water must be available within the immediate vicinity of dry and wet
heat rooms to facilitate cleaning.
G. Hot and cold running water under pressure from a potable source shall be provided
to all washbasins, bathtubs, showers, and similar facilities. Each water basin shall be
provided with soap or detergent and single-service towels placed in permanently installed
dispensers. A trash receptacle shall be provided in each room where such facilities are
located.
H. Provide minimum lighting in accordance with the Uniform Building Code, and in
addition, at least one artificial light of not less than forty watts shall be provided in each
enclosed room where massage is being administered.
I. Floors shall be free from any accumulation of dust, dirt, or refuse.
J. One front door shall be provided for patron entry to the massage establishment,
which shall open to an interior patron reception and waiting area immediately inside the
front door. All patrons and any persons other than individuals employed or retained by the
massage establishment shall be required to enter and exit through the front.
5.87.210 Health and safety requirements—Operating requirements.
All premises of certified massage establishments shall be subject to periodic inspection by
the city for compliance with health, safety, and building standards and all such
establishments shall comply with the following requirements:
A. The hours of operation shall be displayed in a conspicuous public place in the
reception area and in any front window clearly visible from outside of the massage
establishment.
B. A list of services available and the cost of such services shall be posted in an open
and conspicuous public place on the premises. No massage establishment operator shall
permit, and no person employed or retained by the certified massage establishment shall
offer to perform, any services or fees other than those posted.
C. A record shall be maintained that includes the date and time of each massage, the
name and address of the patron, the name of the person administering such massage, and
the type of massage given. Such records will be made available upon request based on
good cause, for inspection by the city manager or police chief, or their designees. The
information contained in such records shall be confidential.
D. The premises shall have adequate equipment for disinfecting and sterilizing non-
disposable instruments and materials used in administering massages. Such non-
disposable instruments and materials shall be disinfected after each use on each patron.
E. It is unlawful for any certified massage practitioner or other person to be other than
fully clothed in non-transparent clothing at all times that shall not expose their genitals,
pubic area, buttocks, or chest or for any operator of a massage establishment to allow or
permit prohibited dress.
ORDINANCE NO. 1277 ,
F. No loudspeakers or sound equipment shall be used by a massage establishment for
amplification of sound to a level discernible by the public beyond the walls of the building in
which use is conducted.
G. No person shall give, or assist in the giving of, any massage or other body treatment
to any other person under the age of eighteen years, unless the parent or guardian of the
minor person has consented thereto in writing.
H. No person owning, operating, or managing massage establishment may employ or
use any person under eighteen years of age without written parental consent.
I. Maintain walls, ceilings, floor, pools, showers, bathtubs, water basins, toilets, wet
and dry heat rooms, steam or vapor rooms and cabinets and all other facilities in good
repair and in a clean and sanitary condition. Showers, water basins, toilets, wet and dry
heat rooms, steam or vapor rooms, and cabinets and compartments shall be thoroughly
cleaned at least once each day the massage establishment is in operation. Bathtubs shall
be thoroughly cleaned after each use.
J. Provide clean and sanitary towels, sheets and linens for each person. No common
usage of sheets, towels and linens shall be permitted. Towels, sheets and linens shall be
provided in sufficient quantity and shall not be used by more than one person unless such
towels, sheets and linens have been re-laundered. Separate closed cabinets or containers
shall be provided for the storage of clean and soiled towels, sheets and linens, and such
cabinets or containers shall be plainly marked "clean linen" and "soiled linen."
K. Cover pad used on massage tables in workmanlike manner with durable, washable
plastic or other waterproof material.
L. Unlock all exterior doors from interior side during business hours, unless the
massage establishment is a business entity owned by one individual with one or no
independent contractors.
M. No massage establishment granted a massage establishment permit or license
under the provisions of this chapter shall place, publish or distribute, or cause to be placed,
published or distributed, any advertisement, picture or statement which is known, or through
the exercise of reasonable care should be known, to be false, deceptive or misleading in
order to induce any person to purchase or utilize any professional massage service.
N. It is unlawful for any massage service to be carried on within any cubicle, room,
booth, or any area within a permitted establishment which is fitted with a door capable of
being locked, with the exception of certain massage establishments envisioned under
subsection L of this section. Toilets and cubicles used solely for the application of liquid and
vapor baths shall be clearly marked as to purpose on the exterior door or curtain of said
cubicle, room, or booth. Nothing contained herein shall be construed to eliminate other
requirements of statute, ordinance or municipal code concerning the maintenance of
premises, nor to preclude authorized inspection thereof, whenever such inspection is
deemed necessary by the code enforcement, the police or health departments.
ORDINANCE NO. 1277
O. No permitted establishment shall operate as a school of massage, or operate in the
same location, or use the same facilities as that of a school of massage except as otherwise
may be provided by law.
P. No person operating a massage establishment shall permit communication devices
to be installed or used in any manner on the premises so as to interfere with or hinder
inspections by code or law enforcement officers.
Q. No person or persons shall be allowed to live or sleep inside the massage
establishment at any time. No part of the establishment shall be altered for residential or
sleeping purposes.
R. No person afflicted with an infection or parasitic infestation transmissible to a patron
shall knowingly provide massage therapy to a patron, or remain on the premises of a
certified massage establishment while so infected or infested.
S. It is unlawful for any certified massage practitioner or other person to massage the
genital area of any patron or the breasts of any female patron or for any operator of a
massage establishment to allow or permit such massage.
T. If during the life of a massage establishment permit, the applicant has any change in
information concerning the original application, notification must be made to the city
manager, in writing, within thirty calendar days of the change.
U. It is unlawful for any certified massage establishment or any massage establishment
permit holder, owner, operator, or responsible managing officer/employee to violate any of
the mandatory requirements of this chapter applicable to massage establishments.
5.87.220 Violation—Penalties.
A. Unless otherwise exempted by the provisions of this chapter, every person, whether
acting as an individual, owner, employee of the owner, operator, or employee of the
operators or whether acting as a mere helper for the owner, employee, or operator, or
whether acting as a participant or worker in any way, who gives massages or conducts a
massage establishment, or who, in connection with the establishment, gives or administers,
or practices the giving or administering of, massages as defined in this chapter, without first
obtaining state certification and a city massage establishment permit, or who shall violate
any provision of this chapter, shall be guilty of a misdemeanor.
B. Any owner, licensee, manager, or massage establishment permit holder in charge or
in control of a massage establishment or certified massage establishment or who knowingly
employs a person who is not in possession of a valid, unrevoked massage establishment
permit, or who allows such persons to perform, operate, or practice within such a place of
business, shall be guilty of a misdemeanor.
C. Anyone found to have violated any provision set forth in this chapter shall be guilty of
a misdemeanor; however the city attorney may reduce the penalty to an infraction. The
penalties for such violations are as set forth in Chapter 1.12 of the municipal code.
ORDINANCE NO. 1277
D. Each violation of this chapter shall constitute a separate violation and each violation
may be charged as a separate count in the event of administrative or criminal enforcement
action.
5.87.230 Other remedies.
The provisions of Section 5.87.220 are not to be construed as exclusive remedies and, in
the event of violation, the city may pursue any proceedings or remedies otherwise provided
by law.
5.87.240 Conducting a business as a nuisance.
Any massage establishment operated, conducted, or maintained contrary to the provisions
of this chapter shall be unlawful and a public nuisance, and the city attorney may in the
exercise of discretion, in addition to or in lieu of prosecuting a criminal action hereunder,
commence an action or actions, proceeding or proceedings, for the abatement, removal and
enjoinment thereof, in a manner provided by law.
ORDINANCE NO. 1277
Exhibit "B"
Title 5 BUSINESS TAXES, LICENSES AND REGULATIONS
Chapter 5.90 MASSAGE PRACTITIONERS
5.90.010 Title.
This chapter shall be known as the "Massage Practitioner Law of the City of Palm Desert."
5.90.020 Authority.
This chapter is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the
Government Code of the state (commencing with Section 51030) with recognition of the
limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of
the state (commencing with Section 4600).
5.90.030 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and
provisions contained in this section shall govern the construction, meaning and application
of words and phrases used in this chapter:
"Applicant" shall mean an applicant for a certificate of registration.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code Section 4600 et seq., as amended,
and referred to as CAMTC herein.
"Certificate of registration" means a certificate issued by the city manager upon
submission of satisfactory evidence that a massage practitioner or therapist has a valid and
current state certification and has satisfied all other requirements pursuant to the provisions
of this chapter.
"Certified massage business" means any business where the only persons employed or
used by that business to provide massage services have current and valid state
certifications.
"Certified massage practitioner' means any person holding a current and valid state
certificate issued by the CAMTC pursuant to California Business and Professions Code
Section 4600 et seq., as amended, whether as a massage practitioner or massage
therapist, as defined therein.
"City manager' means the city manager of the city of Palm Desert, or designee.
"Massage" means the scientific manipulation of the soft tissues.
"Owner' or "operator" means any and all owners, managers, or operators of a massage
establishment with greater than 5% ownership.
ORDINANCE NO. 1277
"Registered certificate holder' means a certified massage practitioner who has been
issued a certificate of registration by the city manager.
"State certification" or "state certificate" means a valid and current certification property
issued by CAMTC pursuant to California Business and Professions Code Section 4600 et
seq., as amended.
5.90.040 Certificates of registration.
A. It is unlawful to practice massage for any form of consideration as a principal,
employee, agent or otherwise within the city, unless a person has a current and valid
CAMTC state certification and a certificate of registration issued pursuant to this chapter.
This section expressly applies to all massage practitioners working as individuals unless
specifically exempted pursuant to the provisions of Section 5.87.190.
B. The city manager shall issue a certificate of registration to any certified massage
practitioner who demonstrates the following:
1. A valid and current state certification; and
2. A valid and current California Massage Therapy Council ("CAMTC") issued
identification card.
C. If the application is denied, the city manager shall promptly give the applicant written
notice thereof and the findings for such denial. The applicant may submit a written request
for reconsideration with the city manager within ten calendar days of the date of the city
manager's written notice of denial. The request for reconsideration shall be accompanied by
a fifty-dollar filing fee, or other amount as established from time to time by city council
resolution. Upon receipt of the written request, the city manager shall reconsider the
application together with any new records, documents, or information presented by the
applicant, or discovered by the city, within the time and manner provided in Section
5.87.050. The city manager's decision on the reconsideration shall be final.
D. A certificate of registration shall not be transferable.
5.90.050 Business license.
All persons shall obtain a business license where required by the city's business license
provisions. The issuance of a certificate of registration is a condition precedent to the
granting of such a business license. Upon the issuance of a certificate of registration
pursuant to this chapter, the applicant shall apply for and furnish the information necessary
to obtain a business license as required by the provisions of this code. No business license
shall be issued until the certificate of registration has been issued and the business license
fee, as provided in this code, has been paid. The business license fee shall be
commensurate with the business license fee charged to other professionals as established
by this code.
t
ORDINANCE NO. 127
5.90.060 Certificate of registration expiration and renewal.
A. Certificates of registration shall be valid for two years from issuance or as extended
pursuant to this chapter.
B. The registered certificate holder shall apply to the city to renew such registration
within thirty calendar days prior to expiration of the certificate of registration and shall apply
to the city to amend the certificate of registration within thirty calendar days after any
change in the registration information including, but not limited to, a change in the work
address. The city manager may extend the certificate of registration one time during a
renewal period for up to ninety calendar days for individuals who provide timely evidence of
a renewal application to CAMTC. Renewals shall be processed and investigated and the
applicant is required to submit that information which has changed from the last application
or renewal.
C. If a renewal application and all required information for the renewal is not received
by the city manager within thirty calendar days after expiration, the certificate of registration
shall be deemed expired and no privilege to provide massage in the city shall exist.
5.90.070 Revocation or suspension of certificate of registration.
A. The city manager shall revoke or suspend a certificate of registration issued to an
individual upon the following grounds:
1. The registered certificate holder is no longer in possession of a current and valid
state certification or CAMTC issued identification card.
2. The registered certificate holder has engaged in fraud, misrepresentation, or false
statements in obtaining or maintaining a certificate of registration.
3. A registered certificate holder has violated the provisions of Section 647(a) and (b) of
the California Penal Code, or any other state law involving a crime of moral turpitude, and
such practices shall constitute in suspension and/or revocation of certificate of registration.
B. The term of suspension of any certificate of registration shall be not more than sixty
calendar days.
1. If the certificate of registration is suspended or revoked, the certificate of registration
shall be surrendered.
5.90.080 Suspension or revocation notice.
Notice of suspension or revocation of a certificate of registration shall be made in
compliance with Section 5.87.130.
5.90.090 Appeal from revocation, suspension.
The decision of the city manager to revoke or suspend a certificate of registration may be
appealed by the registered certificate holder in accordance with the procedures set forth in
Section 5.87.140.
ORDINANCE NO. 1277
5.90.100 Reapplication after denial.
No reapplication for a certificate of registration will be accepted within one year after an
application or renewal is denied or a certificate of registration is revoked.
5.90.110 Compliance with Chapter 5.87.
Certified massage practitioners shall comply with all applicable health and safety
regulations found in Sections 5.87.200 and 5.87.210.
5.90.120 Violation—Penalties.
A. Unless otherwise exempted by the provisions of this chapter, every person, whether
acting as an individual, owner, employee of the owner, operator, or employee of the
operators or whether acting as a mere helper for the owner, employee, or operator, or
whether acting as a participant or worker in any way, who gives massages or conducts a
massage business, or who, in connection with the business, gives or administers, or
practices the giving or administering of, massages as defined in this chapter, without first
obtaining state certification and a city certificate of registration, or who violates any provision
of this chapter, shall be guilty of a misdemeanor.
B. Any massage establishment permit holder in charge or in control of a certified
massage business who knowingly employs a person who is not in possession of a valid,
unrevoked state CAMTC certificate or a certificate of registration, or who allows such
persons to perform, operate, or practice within such a place of business, shall be guilty of a
misdemeanor.
C. Anyone found to have violated any provision set forth herein shall be guilty of a
misdemeanor; however the city attorney may reduce the penalty to an infraction. The
penalties for such violations are as set forth in Chapter 1.12 of the municipal code.
D. Each violation of this chapter shall constitute a separate violation and each violation
may be charged as a separate count in the event of administrative or criminal enforcement
action.
5.90.130 Other remedies.
The provisions of Section 5.90.120 are not to be construed as exclusive remedies and, in
the event of violation, the city may pursue any proceedings or remedies otherwise provided
by law.
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CITY OF PALM D SFkPA
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DEPARTMENT OF COMMUNIT I DEVELOPMENT
STAFF REPORT
REQUEST: CONSIDERATION TO APPROVE AMENDMENTS TO THE PALM
DESERT MUNICIPAL CODE TITLE 5 (BUSINESS TAXES, LICENSES,
AND REGULATIONS) CHAPTER NOS 5.87 AND 5.90, AND TITLE 25
(ZONING)CHAPTER NOS 25.16,25.58, 25.34,AND 25.99 PERTAINING
TO THE REGULATION OF MASSAGE ESTABLISHMENTS BASED ON
ASSEMBLY BILL 1147
SUBMITTED BY: Kevin Swartz, Assistant Planner
APPLICANT: City of Palm Desert
CASE NO: ZOA 14-351
DATE: November 13, 2014
CONTENTS: 1. Ordinance No. 1277 Exhibit "A" and Exhibit "B"
2. Legal Notice
3. Assembly Bill 1147
Recommendation
Waive further reading and pass Ordinance No. 1277 to second reading
approving amendments to the Palm Desert Municipal Code (PDMC) Title 5
(Business Taxes, Licenses, and Regulations) Chapters 5.87 and 5.90, and Title
25 (Zoning) Chapters 25.16, 25.58, 25.34, and 25.99 pertaining to the regulation
of massage establishments based on Assembly Bill 1147.
Executive Summary
This report describes the proposed amendments to Chapters 5.87, 5.90, 25.16, 25.58, 25.34,
and 25.99 for massage establishments based on Assembly Bill (AB) 1147. AB 1147,which was
recently signed by Governor Jerry Brown, was created in response to criticism of Senate Bill
(SB) 731. AB 1147 allows local agencies to impose reasonable zoning, business licensing, and
health and safety requirements on massage establishments. AB 1147 will go into effect on
January 1, 2015. The proposed amendments are described in the "Discussion" section of this
staff report.
Planning Commission
On November 4, 2014, the Planning Commission recommended approval of the proposed
amendments to Title 25 Zoning, Chapters 25.16, 25.58, 25.34, and 25.99 with a 5-0 vote. The
Commissioners agreed with staff that SB 731 has caused influx of independent stand-alone
Staff Report
Amendments to Chapters 5.87, 5.90, 25.16, 25.58, 25.34, and 25.99
Page 2 of 6
November 13, 2014
massage establishments along Highway 111. The Commissioners stated that the proposed one
thousand (1,000) foot distance requirement for all independent stand-alone massage
establishments would help reduce the number of such establishments along Highway 111. The
Commissioners also stated that they supported the proposed zoning locations for both the
independent stand-alone and accessory massage establishments, especially not permitting
independent stand-alone massage establishments within the El Paseo Overlay District.
Background
In May 2013, the City Council amended Chapter 5.87 Massage Businesses and Chapter 5.90
Massage Practitioners to ensure that the City was in compliance with the provisions of SB 731 ,
AB 619, and SB 1238, regarding massage practitioners and massage businesses.
The legislations reduced local governments' regulatory authority in licensing, permitting, and
zoning massage practitioners and businesses due to the creation of a State controlled agency,
the California Massage Therapy Council (CAMTC). Local governments can only regulate
massage professionals and businesses in the same manner as all other individuals and
businesses providing "professional services."
Based on the legislations, massage businesses are essentially permitted in any zone where a
professional service is permitted. "Personal services" are permitted in the (C-1) General
Commercial zone, the (PC) Planned Commercial Districts, and the El Paseo Pedestrian
Commercial Overlay zone. Personal services include cosmetologists and barbers, which are
"professional services" under AB 619. Since "professional services" are permitted in these
zones without a Conditional Use Permit (CUP), Certified Massage Businesses are now
permitted by right in these zones.
A new law (AB 1147) substantially revises the state's regulation of the massage industry,
including expanding cities' and counties' ability to regulate massage therapists and
establishments within their jurisdictions. AB 1147, signed recently by Governor Jerry Brown,
allows local agencies to impose reasonable zoning, business licensing and health and safety
requirements for massage businesses, with some exceptions. AB 1147 will take effect on
January 1, 2015, and will sunset on January 1, 2017, unless extended by later legislation. This
law revises prior legislation, set to sunset this year, that restricted local agencies' ability to
regulate massage businesses, including entitling these businesses to special zoning
protections.
Since 2009, SB 731 was widely criticized by local agencies as providing massage businesses
with almost unprecedented protection from local zoning and land use authority, and interfering
with local law enforcement efforts to close massage businesses that ultimately allowed
prostitution and other illegal activities.
In addition to revising internal CAMTC processes and permitting requirements,AB 1147 makes
important changes regarding how local agencies can regulate and police massage businesses.
Importantly, cities and counties can now adopt local zoning, business licensing and reasonable
health and safety requirements.
C\Users\kswartzWppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Cutlook\PJSHH68Z\Massage CC staff report 11-13-14.doc
Staff Report
Amendments to Chapters 5.87, 5.90, 25.16, 25.58, 25.34, and 25.99
Page 3 of 6
November 13, 2014
From a land use perspective, local agencies cannot define massage establishments as adult
businesses. In addition, they cannot require a special massage therapist permit or license for
CAMTC-licensed therapists. Lastly, AB 1147 limits local agencies' ability to prohibit massage
techniques permitted by the CAMTC and state law, impose some dress code requirements for
clients and therapists, and require some internal building standards that interfere with client
privacy or building security.
Discussion
On November 4, 2014, the Planning Commission recommended approval of zoning
amendments to Chapters 25.16, 25.28, 25.34, and 25.99 of the PDMC. Together with the
changes to Chapters 5.87 and 5.90, the revised code will form a complete regulatory scheme for
massage therapists and massage businesses in Palm Desert. The amendments will also make
it easier for the City to regulate and police the massage establishments along with zoning and
business licensing.
Amendments to Chapters 5.87 and 5.90:
The main changes to Chapters 5.87 and 5.90 are related to enforcement. The proposed
amendments provide for quicker revocation of City registration, when warranted, as well as
processes for appeal and reapplication. Any massage establishment that fails to get the
certificate of registration as required by the ordinance will be in violation of the ordinance, and
subject to any of the enforcement proceedings set forth therein. Among other things, an
establishment in violation of Chapters 5.87 and 5.90 is a public nuisance, which the City may
seek to abate, including by seeking a temporary restraining order and/or injunction to temporarily
or permanently shut down the illegal business.
Another added enforcement tool is if a massage establishment permit is suspended or revoked,
the suspension shall be effective immediately by the City Manager or his designees. This was
not the case under SB 731.
The health and safety requirements for massage business buildings and operations are
substantially similar to existing requirements.
Amendments to Chapter 5.90 apply to massage practitioners. Massage practitioners must also
obtain a certificate of registration from the City by providing proof of State certification.
Additionally, massage practitioners must comply with all health and safety regulations found in
Chapter 5.87.
Staff believes that the proposed amendments are in the public interest and are reasonably
related to the public welfare. The amendments will help protect the public health from unskilled
massage practitioners, and help protect the public morals and the City from illegal prostitution,
while keeping in compliance with AB 1147.
Title 25 Zoning Code Amendments:
Staff is proposing to group massage establishments into two categories. The two categories as
C:\Users`kswartzWppOata\LocalWicrosoh\W mdows\Temporary Internet Fdes�Content 0ut100k\PJ5HH68Z\Massage CC statt report 11-13-14 doc
Staff Report
Amendments to Chapters 5.87, 5.90, 25.16, 25.58, 25.34, and 25.99
Page 4 of 6
November 13, 2014
defined are:
1. Independent stand-alone massage establishments. Any certified massage
establishment where revenue from massage services exceeds 50 percent of the
establishment's total revenue.
2. Accessory massage establishment. A certified massage establishment located within
a hotel, beauty salon, day spa, athletic club,chiropractor's office, doctor's office, physical
therapy office, or yoga or Pilates studio where revenue from massage services is less
than 50 percent of the total revenue of the hotel, beauty salon, day spa, athletic club,
doctor or chiropractor's office, or yoga or Pilates studio.
Creating two categories allows each one to be permitted in certain zones. SB 731 stated that
massage establishments must be permitted in zones where"personnel services"are permitted
uses. That basically allowed massage establishments in all of the commercial zones, Office
Professional zones, and Service Industrial zones. Below is a table that states where each type
of massage establishment will be permitted if the proposed ordinance revisions are adopted.
• Independent stand-alone massage establishments would be permitted in the C-1
(excluding the El Paseo Overlay District), PC-2, and PC-3 zones.
• Accessory massage establishments would be permitted in the C-1, O.P., PC-2, PC-3,
and PC-4 zones. This will allow massage establishments within hotels as a spa service.
Below is the proposed amendment to Table 25.16-1 in Section 25.16.030 (Allowed Land Uses
and Permit Requirements.
Table 25.16-1: Use Matrix for Commercial and Industrial Districts
CommercialAndustrial District
(P_Permitted; A= Administrative Use Special
Permit; C = Conditional Use Permit; N = Use
Not Permitted)
Provisions
OP C-1 PC- PC- PC- PC- SI PI
1 2 3 4
Retail, Service, and Office
Uses
Accessory massage P P N P P P N N 25.34.160
establishments
Independent stand-alone N P N P P N N N 25.34.160
massage establishments
C\Users\kswartz\AppData\Local\Microsoft\W+ndows\Temporary Internet Files\Content.Out]ook\PJSHH68Z\Massage CC staff report 11-13-14.doc
Staff Report
Amendments to Chapters 5.87, 5.90, 25.16, 25.58, 25.34, and 25.99
Page 5 of 6
November 13, 2014
Section 25.28.040 (El Paseo Overlay District) will also be amended by adding the following
language to item B.9. as follows:
B. Permitted uses. The following retail/personal service uses shall be liberally construed to
be permitted uses within the El Paseo pedestrian commercial overlay.
9. Personal care/products shops and services (including barbering, cosmetology, and
accessory massage establishments)."
Staff is also proposing a distance requirement for all independent stand-alone massage
establishments. All existing independent stand-alone massage establishments will be allowed to
continue business until such business ceases to operate for more than thirty (30) days. The
intent of the distance requirement is to promote a better visual character of a destination resort
community along the main core commercial area of the city and to provide a diversity of
business types in the community
The language will read, "No independent stand-alone massage establishment shall operate
within one thousand (1,000)feet of any other independent stand-alone massage establishment.
The measure of reference distance in this subsection shall be a straight line from the nearest
property line containing the independent stand-alone massage establishment to the nearest
property line of another independent stand-alone massage establishment."
SB 731 has caused an influx of independent stand-alone massage establishments in Palm Desert
along Highway 111. Currently, the City maintains twenty-one (21) independent stand-alone
massage establishments throughout the City and fourteen (14) are located along Highway 111.
Placing a distance requirement of one thousand (1,000) feet would help prevent any deleterious
impacts from a concentration of independent stand-alone massage establishments on Highway
111. Staff believes it would assist in preserving the quality of development along the City's primary
commercial corridor. Highway 111 is the second major retail corridor of the City, and while
independent stand-alone massage establishments can contribute to the positive development or
economic vitality of the City, an over-concentration of these businesses does not. The City's
General Plan is to provide a variety of retail and dining offerings in the commercial zones such as
Highway 111 that encourage pedestrian-friendly streetscapes that are open and inviting. Massage
establishments are a destination business,and when part of a shopping center, do not attract the
same pedestrian foot traffic since they tend to blackout their business windows to provide a
relaxing environment. The City currently maintains thirteen (13) secondary massage
establishments, which are located within existing businesses such as a hotel where they do not
blackout their windows. Staff also believes that restaurants and other retail uses prefer to be
located in shopping centers or adjacent to like uses which are inviting to pedestrians by virtue of
visual connection to inside the storefront.
Preserving the commercial viewsheds requires unique land use provisions to promote a high
quality visual character for Palm Desert. AB 1147 allows the City to be more restrictive along the
City's commercial corridors and throughout the City in general, in support of the goals,
programs, and policies established in the Economic& Fiscal and Community Design Elements
of the General Plan. Staff believes the proposed amendments achieve the City's overall goal,
while keeping in compliance with AB 1147.
C.UJsers\kswartz\AppData\Local\Mjcrosoh�Windows\Temporary Internet 1 destContent.0udook\PJSHH68ZWassage CC staff report 11.13-14 doc
Staff Report
Amendments to Chapters 5.87, 5.90, 25.16, 25.58, 25.34, and 25.99
Page 6 of 6
November 13, 2014
Fiscal Analysis
There is no significant fiscal impact resulting from the approval of the amendments to Chapters
5.87 and 5.90 of Title 5 Business Taxes, Licenses, and Regulations of the Palm Desert
Municipal Code, and Title 25 Zoning.
Environmental Review
Pursuant to state and local environmental regulations, it has been determined that the
regulations encompassed in the proposed amendments to Chapter 5.87, Chapter 5.90,and Title
25 Zoning are not subject to the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in
Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or
indirectly.
Submitted by: Department Head:
Kevin Swartz, Assistant Planner Lauri Aylaian, Director of Community evelopment
4// �
aul S. Gibson, Finance Director
Approval:
J n M. Wohlmuth, City Manager
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r'
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 21, 2014
months for consideration. With an aggressive timeline, the developer would like
to begin construction in June 2015.
V. ORAL COMMUNICATIONS
Mayor Van Tanner thanked the Planning Commission for their service, and
distributed a thank you card on behalf of the City.
Commissioner Nancy DeLuna commented that the Commission works for a
wonderful city, and thanked Mayor Tanner and the City for the gift.
The Planning Commission thanked Mayor Tanner.
VI. CONSENT CALENDAR
A. MINUTES of the Planning Commission meeting of October 21, 2014.
Rec: By Minute Motion, approve as presented.
Upon a motion by Commissioner Campbell, second by Vice Chair Stendell, and a
5-0 vote of the Planning Commission (AYES: Campbell, Dash, DeLuna, Greenwood,
and Stendell; NOES- None; ABSENT: None), the Consent Calendar was approved as
presented.
VII. CONSENT ITEMS HELD OVER
None
VIII. NEW BUSINESS
None
IX. PUBLIC HEARINGS
A. REQUEST FOR RECOMMENDATION to the City Council to approve
amendments to the Palm Desert Municipal Code Title 25, zoning and land
use restrictions pertaining to the regulation of massage establishments based
on Assembly Bill 1147. Case No. ZOA 14-351 (City of Palm Desert,
Applicant).
Mr. Kevin Swartz, Assistant Planner, stated that in May 2013 the City Council
amended Chapter 5.87 and Chapter 5.90 to ensure that the City was in
compliance with the provisions of SB 731, AB 619, and SB 1238 regarding
massage practitioners and businesses. He said that those laws reduced local
governments' authority in licensing, permitting, and zoning and created the
California Massage Therapy Council (CAMTC). He stated that SB 371 was
widely criticized by local agencies; however, Governor Jerry Brown recently
signed a new law (AB 1147). The new law, which will take effect January 1,
2
GAPlanning\Monica OReilly\Planning Commission\2014\Minutes\11-4-14 min.docx
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 21, 2014
2015, allows local agencies to impose reasonable zoning, business licensing,
and health and safety requirements for massage businesses. Mr. Swartz stated
that based on AB 1147, staff is proposing amendments to Chapters 5.87 and
5.90. He also stated that the Planning Commission needs to approve the
proposed zoning amendments to Sections 25.16, 25.28, 25.34, and 25.99 of the
Palm Desert Municipal Code (PDMC). He explained that staff is proposing to
group establishments into two categories- 1) Independent stand-alone massage
establishments; and 2) Accessory massage establishments. Creating the two
categories allows each one to be permitted in certain zones. Mr. Swartz
displayed a zoning map to indicate where massage establishments would be
permitted. He also displayed Table 25.16-1, the use matrix for commercial and
industrial districts. He stated that staff is also proposing a distance requirement
for all independent stand-alone massage establishments. The requirement is that
no independent stand-alone massage establishment shall operate within 1 ,000
feet of another stand-alone establishment. He noted that all existing stand-alone
massage establishments would be allowed to continue business until such
business ceases to operate for more than 30 days. He showed an aerial photo of
a portion of Highway 111 with four independent massage establishments with a
1 ,000-foot buffer around each as an example. He said placing a distance
requirement would assist in preserving quality of development along the City's
primary entries. Staff believes the proposed amendments achieves the City's
overall goal and recommends approval. He offered to answer any questions.
Commissioner DeLuna asked if the City has control if there are complaints of
inappropriate actions at massage establishments.
Ms. Aylaian replied absolutely. She noted that the approach and wording taken in
the revised ordinance has been coordinated with the Police Department and
Code Compliance Department, with what is enforceable and what is not.
Commissioner DeLuna commended staff for the thorough staff report.
Chair Dash asked what an overlay zone is.
Mr. Swartz responded that an overlay zone identifies special uses.
Mr. Tony Bagato, Principal Planner, explained that overlay zones are used to add
specific standards in a certain geographic area where the City does not want to
apply to a different base zone.
Chair Dash asked staff to explain the requirement of an existing establishment
that ceases to operate for more than 30 days.
Mr. Swartz responded that if a business stops operating outside of the 30 days,
then it will lose the use of a massage establishment. A new massage business
would not be permitted there unless it met the 1 ,000 foot distance requirement
and all other provisions of the municipal code.
3
GAPlanning\Monica OReilly\Planning Commission\2014\Minutes\11-4-14 min.dou
MINUTES
PALM DESERT PLANNING COMMISSION OCTOBER 21, 2014
Mr. Swartz referred to Table 25.16-1 , and stated that there is a correction to be
made. He said that accessory massage establishments are permitted within an
Office Professional zone, and asked that the Planning Commission make the
change as part of their motion.
Vice Chair Ken Stendell asked if the 1,000-foot buffer is applied to a stand-alone
massage establishment, does the City have to apply the same requirement to
other professional service type businesses?
Ms. Jill Tremblay, City Attorney, responded that the new legislation allows the
City more ability and oversight to regulate the zoning and other health and safety
issues. The City no longer has to treat massage establishments the same as
other professional service businesses.
Commissioner Campbell referred to Japan Spa that was approved at the October
21 Planning Commission meeting. She asked if Japan Spa meets the
requirements.
Mr. Swartz replied that Japan Spa has an existing Conditional Use Permit, and
has been in business since 2008.
Chair Dash declared the public hearing open and asked for any public testimony IN
FAVOR or OPPOSITION.
With no testimony offered, Chair Dash declared the public hearing closed.
Commissioner DeLuna moved, by Minute Motion, to approve recommending that
the City Council approve amendments to Title 25, Zoning of the PDMC Sections 25.16,
25.28, 25.34, and 25.99, with the correction to Table 25.16-1 permitting accessory
massage establishments in an Office Professional zone. Motion was seconded by
Commissioner Campbell and carried by a 5-0 vote (AYES: Campbell, Dash, DeLuna,
Greenwood, and Stendell; NOES: None; ABSENT: None).
Commissioner DeLuna moved, by Minute Motion, to waive further reading and
adopt Resolution No. 2638. Motion was seconded by Commissioner Campbell and
carried by a 5-0 vote (AYES: Campbell, Dash, DeLuna, Greenwood, and Stendell;
NOES: None; ABSENT: None).
X. MISCELLANEOUS
None
XI. COMMITTEE MEETING UPDATES
A. ART IN PUBLIC PLACES
None
4
GAPlanning\Monica OReilly\Planning Commission\2014\Minutes\11-4-14 min.docx
,,._.1�►_., I I Y 0 F r d l M 0 E 5 19 1
73-5IO FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92 2 6 0—2 5 78
TEL: 760 346-o6 i i
i nfo@cityofpalmdesert.org
PLANNING COMMISSION MEETING
NOTICE OF ACTION
November 5, 2014
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Subject: Recommendation to the City Council for Consideration to Approve
Amendments to Palm Desert Municipal Code Title 25 Pertaining to
Massage Establishments
The Planning Commission of the City of Palm Desert considered your request and took
the following action at its regular meeting of November 5, 2014:
The Planning Commission granted approval of Case No. ZOA 14-351 by
adoption of Planning Commission Resolution No. 2638, recommending
that the City Council approve amendments to Title 25. Motion carried by a
5-0 vote.
Any appeal of the above action may be made in writing to the City Clerk, City of Palm
Desert, within fifteen (15) days of the date of the decision.
Lauri Aylaian, Secretary
Palm Desert Planning Commission
cc: File
Building & Safety Department
Public Works Department
Fire Marshal
��VNINiFD ON RE(Y(LFD VAGEN
PLANNING COMMISSION RESOLUTION NO. 2638
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
PALM DESERT, CALIFORNIA, RECOMMENDING APPROVAL TO THE
CITY COUNCIL TO AMEND PALM DESERT MUNICIPAL CODE TITLE 25
ZONING CHAPTERS 25.16, 25.28, 25.34, AND 25.99 PERTAINING TO THE
REGULATION OF MASSAGE ESTABLISHMENTS BASED ON ASSEMBLY
BILL 1147
CASE NO: ZOA 14-351
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 4th day of November, 2014, hold a duly noticed public hearing to consider the request by
the City of Palm Desert for approval of the above noted; and
WHEREAS, California Government Code, Section 65800 et seq. authorizes the City
of Palm Desert ("City") to adopt and administer zoning laws, ordinances, rules and
regulations by cities as a means of implementing the General Plan; and
WHEREAS, the California Constitution and Government Code Section 51030 et
seq., authorizes the City to regulate massage businesses by imposing reasonable
standards relative to the skill and experience of massage practitioners and reasonable
conditions on the operation of massage establishments; and
WHEREAS, in 2008, the Legislature adopted Senate Bill 731, which created the
California Massage Therapy Council, a state-organized nonprofit organization with
regulatory authority over the certification of massage practitioners throughout the State of
California; and,
WHEREAS, the City amended Chapters 5.87 and 5.90 of the Palm Desert Municipal
Code ("Code") to comply with the regulations set forth in Senate Bill 731; and
WHEREAS, Senate Bill 731 has been widely criticized by local agencies as
providing massage businesses with almost unprecedented protection from local zoning and
land use authority, and interfering with local law enforcement efforts to close massage
businesses allowing prostitution and other illegal activities; and
WHEREAS, Assembly Bill 1147, signed recently by Governor Jerry Brown, was
created in response to criticism against Senate Bill 731 and allows local agencies to impose
reasonable zoning, business licensing, and health and safety requirements on massage
establishments; and
WHEREAS, the City wishes to amend portions of the Palm Desert Municipal Code
Title 25 to ensure that the City regulates massage practitioners and massage
establishments in compliance with the provisions of AB 1147.
PLANNING COMMISSIO ESOLUTION NO. 2638
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF THE
CITY OF PALM DESERT, CALIFORNIA, AS FOLLOWS:
SECTION 1: The Planning Commission finds that the revisions to the Palm Desert
Municipal Code proposed by the above referenced resolution are in the public interest and
reasonably related to the public welfare because they update the City's massage
regulations in order to protect the public health from unskilled massage practitioners and to
protect the public morals from illegal prostitution, while maintaining compliance with
California Assembly Bill 1147.
SECTION 2: Based on the entire record before the Planning Commission, all written
and oral evidence presented to the Planning Commission, and the findings made in this
Resolution, the Planning Commission hereby recommends that the City Council amend
portions of the Palm Desert Municipal Code Chapters 25.16, 25.28, 25.34, and 25.99.
SECTION 3: Table 25.16-1 in Section 25.16.030 (Allowed Land Uses and Permit
Requirements) of the Palm Desert Municipal Code is hereby amended to add the following
rows under Retail, Service, and Office Uses in alphabetical order:
Table 25.16-1: Use Matrix for Commercial and Industrial Districts
Commercial/industrial District
(P=Permitted; A= Administrative Use Special
Permit; C'= Conditional Use Permit; N Use
Not Permitted) Provisions
7PC__1 PC- PC- PC- PC- SI PI
1 2 3 4
Retail, Service, and Office
Uses
Accessory massage P P N P P P N N 25.34.160
establishments
Independent stand-alone N P N P P N N N 25.34.160
massage establishments
SECTION 4: Section 25.28.040 (El Paseo Overlay District) of the Palm Desert
Municipal Code is hereby amended by adding the following language to item B.9. as
follows:
,,B. Permitted uses. The following retail/personal service uses shall be liberally
construed to be permitted uses within the El Paseo pedestrian commercial overlay
9. Personal care/products shops and services (including barbering, cosmetology,
and accessory massage establishments)."
SECTION 5: Section 25.34.160 (Massage Establishments) of the Palm Desert
Municipal Code is hereby added as follows:
GAPlanningWonica OReilly\Planning Commission\2014\Resolutions\Res.No.2638 ZOA 14.351 Title 25 Amndmnt.docx
PLANNING COMMIS J RESOLUTION NO. 2638
"25.34.160 Massage Establishments
A. No independent stand-alone massage establishment shall operate in any zone
other than the C-1 (excluding the El Paseo Overlay District), PC-2, and PC-3 zones.
B. No accessory massage establishment shall operate in any zone other than the C-
1, O.P., PC-2, PC-3, and PC-4 zones.
C. No independent stand-alone massage establishment shall operate within one
thousand (1,000) feet of any other stand-alone massage establishment. The measure of
reference distance in this subsection shall be a straight line from the nearest property line
containing the independent stand-alone massage establishment to the nearest property line
of another independent stand-alone massage establishment. All existing independent
stand-alone massage establishments will be allowed to continue business until such
business ceases to operate for more than thirty (30) days.
SECTION 6: Section 25.99.020 (Land Use Definitions) of the Palm Desert Municipal
Code is hereby amended to include the following definitions in alphabetical order:
"Accessory massage establishment. A certified massage establishment located
within a hotel, beauty salon, day spa, athletic club, chiropractors office, doctors office,
physical therapy office, or yoga or Pilates studio where revenue from massage services is
less than 50% of the total revenue of the hotel, beauty salon, day spa, athletic club, doctor
or chiropractor's office, or yoga or Pilates studio."
"Certified massage establishment. Any massage establishment where the only
persons employed or used by that establishment to provide massage services have current
and valid state certifications."
"Independent stand-alone massage establishment. Any certified massage
establishment where revenue from massage services exceeds 50% of the establishment's
total revenue."
SECTION 7: The Planning Commission also finds that Resolution No. 2638, which
revises the Palm Desert Zoning Code is consistent with the City of Palm Desert General
Plan in that the proposed amendments preserve the commercial corridors. Highway 111 is
the second major retail corridor of the City, and while independent stand-alone massage
establishments can contribute to the positive development or economic vitality of the City,
an over-concentration of these businesses does not. The City's General Plan is to provide a
variety of retail and dining offerings in the commercial zones such as Highway 111 that
encourage pedestrian-friendly streetscapes that are open and inviting. Massage
establishments are a destination business, and when part of a shopping center, do not
attract the same pedestrian foot traffic since they tend to blackout their business windows to
provide a relaxing environment. AB 1147 allows the City to be more restrictive along the
City's commercial corridors and throughout the City in general, in support of the goals,
programs, and policies established in the Economic & Fiscal and Community Design
Elements of the General Plan. Staff believes the proposed amendments achieve the City's
overall goal, while keeping in compliance with AB 1147.
G.PlanningWonica ORellly\Planning Commission\2014\Resolutions\Res.No.2638 ZOA 14-351 Title 25 Amndmnt.docx
PLANNING COMMISSIOI =SOLUTION NO. 2638
SECTION 8: The resolution is not subject to the California Environmental Quality Act
("CEQA") pursuant to Sections 15060(c)(2) because the activity, which involves updating
Title 25 Zoning, which will not result in a direct or reasonably foreseeable indirect physical
change in the environment; and 15060(c)(3) because the activity is not a project as defined
in Section 15378 of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter
3, because it has no potential for resulting in physical change to the environment, directly or
indirectly.
SECTION 9: The Secretary shall certify to the adoption of this resolution.
PASSED, APPROVED, AND ADOPTED by the Planning Commission of the City of
Palm Desert, California, at its regular meeting held on the 4th day of November 2014, by
the following vote, to wit:
AYES: CAMPBELL, DASH, DE LUNA, GREENWOOD, and STENDELL
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
11OG,PPTDASH, CHAIRPERSON
ATTEST:
LAURI AYLAIAN, SECRETARY
PALM DESERT PLANNING COMMISSION
WPlanningWonica OReilly\Planning Commission\2014\Resolutions\Res.No.2638 ZOA 14-351 Title 25 Amndmnt.docx
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: RECOMMENDATION TO THE CITY COUNCIL TO APPROVE
AMENDMENTS TO THE PALM DESERT MUNICIPAL CODE TITLE
25, ZONING AND LAND USE RESTRICTIONS PERTAINING TO
THE REGULATION OF MASSAGE ESTABLISHMENTS BASED ON
ASSEMBLY BILL 1147
SUBMITTED BY: Kevin Swartz, Assistant Planner
APPLICANT: City of Palm Desert
CASE NO: ZOA 14-351
DATE: November 4, 2014
CONTENTS: 1 . Draft Resolution No. 2638
2. Legal Notice
3. Red line version of draft amendments to Chapters 5.87 and 5.90
4. Assembly Bill 1147
Recommendation
Waive further reading and adopt Resolution No. 2638, recommending that
the City Council approve amendments to Title 25, Zoning of the Palm Desert
Municipal Code (PDMC) Chapters 25.16, 25.28, 25.34, and 25.99 regarding
zoning, definitions, and distance requirements for massage establishments.
Executive Summary
This report describes the proposed amendments to Title 25, Zoning for massage
establishments based on Assembly Bill (AB) 1147. AB 1147, which was recently signed by
Governor Jerry Brown, was created in response to criticism against Senate Bill (SB) 731 .
AB 1147 allows local agencies to impose reasonable zoning, business licensing, and
health and safety requirements on massage establishments. AB 1147 will go into effect on
January 1 , 2015. The proposed amendments to Title 25 Zoning are described in the
"Discussion" section of this staff report.
Staff Report
Approval of Amendments to Title 25 Zoning
Page 2 of 5
November 4, 2014
Background
In May 2013, the City Council amended Chapter 5.87 Massage Businesses and Chapter
5.90 Massage Practitioners to ensure that the City was in compliance with the provisions of
SB 731, AB 619, and SB 1238, regarding massage practitioners and massage businesses.
The legislations reduced local governments' regulatory authority in licensing, permitting,
and zoning massage practitioners and businesses due to the creation of a State controlled
agency, the California Massage Therapy Council (CAMTC). Local governments can only
regulate massage professionals and businesses in the same manner as all other
individuals and businesses providing "professional services."
Based on the legislations, massage businesses are essentially permitted in any zone
where a professional service is permitted. "Personal services" are permitted in the (C-1)
General Commercial zone, the (PC) Planned Commercial Districts, and the El Paseo
Pedestrian Commercial Overlay zone. Personal services include cosmetologists and
barbers, which are "professional services" under AB 619. Since"professional services"are
permitted in these zones without a Conditional Use Permit (CUP), Certified Massage
Businesses are now permitted by right in these zones.
A new law(AB 1147) substantially revises the state's regulation over the massage industry,
including expanding cities' and counties' ability to regulate massage therapists and
establishments within their jurisdictions. AB 1147, signed recently by Governor Jerry
Brown, allows local agencies to impose reasonable zoning, business licensing and health
and safety requirements for massage businesses,with some exceptions.AB 1147 will take
effect on January 1, 2015, and will sunset on January 1, 2017, unless extended by later
legislation. This law revises prior legislation, set to sunset this year, that restricted local
agencies' ability to regulate massage businesses, including entitling these businesses to
special zoning protections.
Since 2009, SB 731 was widely criticized by local agencies as providing massage
businesses with almost unprecedented protection from local zoning and land use authority,
and interfering with local law enforcement efforts to close massage businesses that
ultimately allowed prostitution and other illegal activities.
In addition to revising internal CAMTC processes and permitting requirements, AB 1147
makes important changes regarding how local agencies can regulate and police massage
businesses. Importantly, cities and counties can now adopt local zoning, business licensing
and reasonable health and safety requirements.
From a land use perspective, local agencies cannot define massage establishments as
adult businesses. In addition, they cannot require a special massage therapist permit or
license for CAMTC-licensed therapists. Lastly, AB 1147 limits local agencies' ability to
prohibit massage techniques permitted by the CAMTC and state law, impose some dress
code requirements for clients and therapists, and require some internal building standards
G:\Planning\Kevin Swartz\Word\City Ordinances\Massage Ordinance based on AB 1147\Final Massage PC Staff Report 11-4-14.doc
Staff Report
Approval of Amendments to Title 25 Zoning
Page 3 of 5
November 4, 2014
that interfere with client privacy or building security.
Discussion
Based on AB 1147, staff is proposing amendments to Chapters 5.87 and 5.90, which will
go before the City Council at the November 13, 2014 meeting. To complement those
amendments, the Planning Commission needs to approve the proposed zoning
amendments to Chapters 25.16, 25.28, 25.34, and 25.99 of the P.D.M.C. Together the
changes to Titles 5 (Business Taxes, Licenses, and Regulations) and 25 (Zoning) will form
a complete regulatory scheme for massage therapists and massage businesses in Palm
Desert. Below are specific modifications proposed for the Zoning Code.
Staff is proposing to group massage establishments into two categories. The two
categories as defined are:
1 . Independent stand-alone massage establishments. Any certified massage
establishment where revenue from massage services exceeds 50 percent of the
establishment's total revenue.
2. Accessory massage establishment. A certified massage establishment located
within a hotel, beauty salon, day spa, athletic club, chiropractor's office, doctor's
office, physical therapy office, or yoga or Pilates studio where revenue from
massage services is less than 50 percent of the total revenue of the hotel, beauty
salon, day spa, athletic club, doctor or chiropractor's office, or yoga or Pilates
studio.
Creating two categories allows each one to be permitted in certain zones. SB 731 stated
that massage establishments must be permitted in zones where "personnel services" are
permitted uses. That basically allowed massage establishments in all of the commercial
zones, Office Professional zones, and Service Industrial zones. Below is a table that states
where each type of massage establishment will be permitted if the proposed ordinance
revisions are adopted.
• Independent stand-alone massage establishments would be permitted in the C-1
(excluding the El Paseo Overlay District), PC-2, and PC-3 zones.
• Accessory massage establishments would be permitted in the C-1 , PC-2, PC-3, and
PC-4 zones. This will allow massage establishments within hotels as a spa service.
GAPlanning\Kevin Swartz\Word\City Ordinances\Massage Ordinance based on AB 1147\Final Massage PC Staff Report 11-4-14.doc
Staff Report
Approval of Amendments to Title 25 Zoning
Page 4 of 5
November 4, 2014
Below is the proposed amendment to Table 25.16-1 in Section 25.16.030 (Allowed Land
Uses and Permit Requirements).
Table 25.16-1: Use Matrix for Commercial and Industrial Districts
Commercial/industrial District
(P=Permitted; A=Administrative Use Permit; C = Special
Conditional Use Permit; N= Not Permitted) Use
Provisions
OP TC-1 PC-1 PC-2 PC-3 PC-4 sl PI
Retail, Service, and Office Uses
Accessory massage establishments N P N P P P N N 25.34.160
Independent stand-alone massage N P N P P N N N 25.34.160
establishments
Section 25.28.040 (El Paseo Overlay District) will also be amended as follows:
B. Permitted uses. The following retail/personal service uses shall be liberally construed
to be permitted uses within the El Paseo pedestrian commercial overlay.
9. Personal care/products shops and services (including barbering, cosmetology, and
accessory massage establishments)."
Staff is also proposing a distance requirement for all independent stand-alone massage
establishments. All existing independent stand-alone massage establishments will be
allowed to continue business until such business ceases to operate for more than thirty
(30) days. The intent of the distance requirement is to promote a better visual character of
a destination resort community along the main core commercial area of the city and to
provide a diversity of business types in the community
The language will read, "No independent stand-alone massage establishment shall operate
within one thousand (1 ,000) feet of any other independent stand-alone massage
establishment. The measure of reference distance in this subsection shall be a straight line
from the nearest property line containing the independent stand-alone massage
establishment to the nearest property line of another independent stand-alone massage
establishment."
SB 731 has caused an influx of independent stand-alone massage establishments in Palm
Desert along Highway 111 . Currently, the City maintains twenty-one (21) independent stand-
alone massage establishments throughout the City and fourteen (14) are located along
Highway 111 . Placing a distance requirement of one thousand (1 ,000) feet would help
prevent any deleterious impacts from a concentration of independent stand-alone massage
establishments on Highway 111. Staff believes it would assist in preserving the quality of
G:\Planning\Kevin Swartz\Word\City Ordinances\Massage Ordinance based on AB 1147\Final Massage PC Staff Report 11-4-14.doc
Staff Report
Approval of Amendments to Title 25 Zoning
Page 5 of 5
November 4, 2014
development along the City's primary entryways. Highway 111 is the second major retail
corridor of the City, and while independent stand-alone massage establishments can
contribute to the positive development or economic vitality of the City, an over-concentration
of these businesses does not. The City's General Plan is to provide a variety of retail and
dining offerings in the commercial zones such as Highway 111 that encourage pedestrian-
friendly streetscapes that are open and inviting. Massage establishments are a destination
business, and when part of a shopping center, do not attract the same pedestrian foot traffic
since they tend to blackout their business windows to provide a relaxing environment. The
City currently maintains thirteen (13) secondary massage establishments, which are located
within existing businesses such as a hotel where they do not blackout their windows. Staff
also believes that restaurants and other retail uses prefer to be located in shopping centers
or adjacent to like uses which are inviting to pedestrians by virtue of visual connection to
inside the storefront.
Preserving the commercial viewsheds requires unique land use provisions to promote a
high quality visual character for Palm Desert. AB 1147 allows the City to be more restrictive
along the City's commercial corridors and throughout the City in general, in support of the
goals, programs, and policies established in the Economic& Fiscal and Community Design
Elements of the General Plan. Staff believes the proposed amendments achieve the City's
overall goal, while keeping in compliance with AB 1147.
Environmental Review
Pursuant to state and local environmental regulations, it has been determined that the
regulations encompassed in the proposed amendments to Chapter 5.87, Chapter 5.90,
and Title 25 Zoning are not subject to the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is
not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly.
Submitted by: Department Head:
Kevin Swartz , Assistant Planner Lauri Aylaian, Director of Community Development
GAPlanning\Kevin Swartz\Word\City Ordinances\Massage Ordinance based on AB 1147\Final Massage PC Staff Report 11-4-14.doc
Staff Report
Approval of Amendments to Title 25 Zoning
Page 5 of 5
November 4, 2014
development along the City's primary entryways. Highway 111 is the second major retail
corridor of the City, and while independent stand-alone massage establishments can
contribute to the positive development or economic vitality of the City, an over-concentration
of these businesses does not. The City's General Plan is to provide a variety of retail and
dining offerings in the commercial zones such as Highway 111 that encourage pedestrian-
friendly streetscapes that are open and inviting. Massage establishments are a destination
business, and when part of a shopping center, do not attract the same pedestrian foot traffic
since they tend to blackout their business windows to provide a relaxing environment. The
City currently maintains thirteen (13) secondary massage establishments, which are located
within existing businesses such as a hotel where they do not blackout their windows. Staff
also believes that restaurants and other retail uses prefer to be located in shopping centers
or adjacent to like uses which are inviting to pedestrians by virtue of visual connection to
inside the storefront.
Preserving the commercial viewsheds requires unique land use provisions to promote a
high quality visual character for Palm Desert. AB 1147 allows the City to be more restrictive
along the City's commercial corridors and throughout the City in general, in support of the
goals, programs, and policies established in the Economic& Fiscal and Community Design
Elements of the General Plan. Staff believes the proposed amendments achieve the City's
overall goal, while keeping in compliance with AB 1147.
Environmental Review
Pursuant to state and local environmental regulations, it has been determined that the
regulations encompassed in the proposed amendments to Chapter 5.87, Chapter 5.90,
and Title 25 Zoning are not subject to the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is
not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly.
Submitted by: Department Head:
Kevin Swartz, Assistant Planner Lauri Aylaian, Director of Community h==Innment
GAPlanning\Kevin Swartz\Word\City Ordinances\Massage Ordinance based on AB 1147\Final Massage PC Staff Report 11-4-14.doc
CITY � F PP [ M DESL , 1
73-510 FRED WARING DRIVE
PALM DESERT,CALIFORNIA 92260-2578
TEL:760 346—o6ii
FAX:760 341-7098
info@palm-dcsert.org
CITY OF PALM DESERT
LEGAL NOTICE
NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BY THE PALM
DESERT PLANNING COMMISSION RECOMMENDING APPROVAL TO THE CITY COUNCIL
AMENDMENTS TO THE PALM DESERT MUNICIPAL CODE, TITLE 5 BUSINESS TAXES,
LICENSES AND REGULATIONS REGARDING MASSAGE BUSINESS ZONING AND LAND
USE RESTRICTIONS BASED ON ASSEMBLY BILL 1174.
Project Location: City wide
Recommendation: Staff is recommending approval of the above noted request.
Public Hearing: The public hearing before the Planning Commission will be held on November
4, 2014, at 6:00 p.m.
Comment Period: Based on the time limits defined by CEQA, your response should be sent at
the earliest possible date. The public comment period on this project is from October 23, 2014
to November 4, 2014.
Public Review: All related documents are available for public review daily at City Hall.
Please submit written comments to the Planning Department. If any group challenges the
action in court, issues raised may be limited to only those issues raised at the public
hearing described in this notice or in written correspondence at, or prior to the Planning
Commission hearing.All comments and any questions should be directed to:
Kevin Swartz,Assistant Planner
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
(760)346-0611
kswartz@cityofpalmdesert.org
Publish: Desert Sun LAURI AYLAIAN, SECRETARY
October 22, 2014 Palm Desert Planning Commission
Title 5 BUSINESS TAXES, LICENSES AND REGULATIONS
I Chapter 5.87 MASSAGE BUSI.rFISS" STABLISiiMENTS
5.87.010 Title.
IThis chapter shall be known as the "Massage RusinesseslEstabiishment Law of the City of
Palm Desert."
5.87.020 Authority.
This chapter is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the
Government Code of the state (commencing with Section 51030) with recognition of the
limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the
state (commencing with Section 4600).
5.87.030 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and provisions
contained in this section shall govern the construction, meaning and application of words and
phrases used in this chapter:
Persons:ibilewing b
pat4fier, a shareholder-, a sole pfoprietor, or- any person who has a five pefeent of greater
.. , eorperate emitity,
lipAited
partner-, S11-f-111,18-1
`Accessory massage establishment" means a_ctitied massa�;e._establishment_loeated within
a hotel beauty salon, da�s�a, athletic club or yo-g or Pilates studio where revenue from
mas is less than 50N of the total revenue of the hotel, beauty salon, day spa.
athletic club, or yoga or l'ilates studio.
'`Applicant" means an applicant for a massage establishment permit.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code Section 4600 et seq., as amended, and
referred to as CAMTC herein.
"Get4ifieate of Fegistration business" means a eet4ifieate issued by the eity maiiager upon
submission of sati,4etffy eviden . . i that a massage business or- sole ppeprieter-ship
employs or uses only eeptified massage thefapists E)F praefitk ing valid and eui:Fent
state eeFfifieatiafis alld has satisfied all other requiFements pws-a— a!
elapter-
72500.00762\9350468.3
"Certified massage business stablishment" means any husinessestablishment where the only
persons employed or used by that busiHe4sestablishment to provide massage services have
current and valid state certifications.
"Certified massage practitioner" means any person holding a current and valid state
certificate issued by the CAMTC pursuant to California Business and Professions Code Section
4600 et seq., as amended, whether as a massage practitioner or massage therapist, as defined
therein.
"Ceftified sole propf ietef ship" means afly massage basiness wl!ere the awfief is the enb,
persen employed er- used by that busifiess te pFevide massage serviees and the Owner has a
"City manager" means the city manager of the city of Palm Desert, or designee.
"Communication device" means any video or other type of camera device that is either free
standing or is temporarily or permanently mounted to a fined surface indoors or outdoors.
"Massage" means any methad ef tfeafing the external paFts of the bad), fbF ,
health, er- hygienie purposes, 1br any fbrm efeensideration (whether- faf the massage, as paI4 of
..
kneading, ure an of
E)r- stimulating the ex4er-nal
rubbing tapping, paunding,
aids,pai4s of the body, with eF without-the -Aidd ef_Z:ty meehanieal or eleetFi6al apparatus E)
. ,
Russian,used in this praetiee; or by baths, ifieluding but not Hinited to Turkish, Swedi
sponge, iiflinefah famemation, bath.
"Independent stand-alone massage establishment" means any certified massage
establishment where revenue from massage services exceeds 50% of the massage
_..._......................-_____...._.......... .........................__......... ..
establishment's iot-al revenue.
I '`Massage" means the scientific manipulation of the soR tissues.
I "Massage establishment permit" m ermit issued by the city ma means a prip , tipon
submissio ti of sa_i5f cto ry.evidence g. r..c c utrecl in Section 5.87.050 of this_.chapter.
I "Massage establishment permit holder" means a_person or establishment that has been
issued a massage establishment permit bN the city many
I "Owner" or "operator" means any and all owners of a massage .. _stahlishmen
including any of the following persons: the managing responsible officer/employee, a general
partner, a limited partner, a shareholder, or a sole proprietor, or- any pemen who has a five
entity, lipaited partner, shafelialdei- or- sole percent OF gFOatOF owner-ship inte "t it; I .—s-age business whether- as an iRdividual, eoFpE)Fate
72500.00762\9350468.3
i " means, a pemeH OF business that has been issued a raertifieate
"State certification" or "state certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business and Professions Code Section 4600 et seq.,
Ias amended.
5.87.040 State certification and city r-egistrat4gMassage estahlisljment permit required.
---- At. Within one-years x.._months of passage of the ordinance codified in this chapter, it is
unlawful for any individual to pmetiee Fnassage fbF eompensation within the eity unless that
businessestablishment to provide massage services within the city unless all individuals
employed-d-i y the massage stablishment-has obtained a massage,
an empleyee of independent , establishment permit from the city and all individuals
providing massage at said massage establishment are certified massage practitioners. Anv non_
conforming uses shall be subject to Chanter 25.62.
13. Within one year of .. ,
issued unless issued a
it is unlawkit lbr any
,
, pai4ner-ship or eoFperatiefi to engage in, eenduet or eaFfy on,
engaged or permit to
be
..
1;241-34
I5.87.050 Certified massage tablishment--Fermi required.
I A. Any person desiring to own or operate a businessan establishment to provide
massage services within the city shall file a r-egistmtiFm...--ge establishment permit application
on forms provided by the city manager, submitted under penalty of perjury and containing all
of the following information:
I 1. State Certification Verification and Applicant lnffirmation.
I a. U-A certified massage establishment applicant/owner shall
produce::. -- ----........._.
i. A valid and current . Massage
" ' , river's license and/or identification card.- issued by a
stag or federal g��vcrnrnental agency or other photographic identification bearing a bona tide
scal.._hy..a..ttx�t: !n,...�pycrn�nent
Ib. if a eeftified massageo
72500.00762\9350468.3
ii. A statement that the eertifiedRMposed massage bu&4wssestablishment shall
employ only certified massage practitioners along with copies of valid and current state
I certificates for all massage practitioners ei 1-OF who will be employed 4y-vrovide ma gage
set_ ice ....at the massage business stahlishment and copies of their current and valid CAMTC
issued identification cards.
A by a state of federal b
b
appear- and preduee valid and eufr-ent state eeftiflea4es, a valid alld eer-fent dfiver-'s 1i
Id. The fellewing ifif4mation shall be provided by an), ewfier�applieaiit whe is not state
efftified and owns five peieem OF MOFe of the btisiness.:
I --i iii. Acceptable proof that the employee-,isV pligRtL t_andall certified—nassage
practitioners emplloved or who will be em loved by the massage establishment are at least
eighteen years of age;
Full, true name, and other- names used, date of birth and valid and eun-ent dFiver-'s
H.
I ...._........ iv. Two photographs of the applicant to be taken by the police department;
I --ivv. Applicant's current address and previous two residence addresses including
dates at each address and telephone_number;
I —avi. na licp ant's business, occupation, and employment history for ten years
preceding the date of current or proposed employment, the inclusive dates of same; the name
I and address of any massage lutessestablishment or other like establishment owned or
operated by any applicant including, but not limited to,
history, if any, with any agency, board, city, county, territory, or state; and dates of issuance,
denial, restriction, revocation, or suspension, and the reasons therefore of any individual or
I k usinessestahl 5hinent permit; and
I ---wvii. Fingerprints, subject to a fee to cover actual costs, to submit to Department
of Justice through LiveScan or equivalent, and may submit additional fee to cover the actual
costs for subsequent arrest notice for renewal applications, to determine whether the applicant
has any of the following:
72500.00762\9350468.3
(A) All convictions for any crime involving conduct which requires registration under
California Penal Code Section 290 (Sex Offender Registration Act),
(B) Convictions of violations of California Penal Code Sections 266i (pandering), 315
(keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon
person to visit place for gambling or prostitution), 647(b) (prostitution), 653.23 (supervision of
prostitute),
(C) Convictions of any felony offense involving the sale of a controlled substance
specified in Section 1104, 11055, 11056, 11057, or 11058 of the California Health and Safety
Code,
(D) Convictions of crimes designated in California Government Code Section 51032
(massage—grounds for denial of license), or any crime involving dishonesty, fraud, deceit,
violence or moral turpitude,
(E) All injunctions for nuisances under California Penal Code Sections 11225 through
11235 (red light abatement law),
(F) Convictions in any other state of any offense which, if committed or attempted in
this state, would have been punishable as one or more of the referenced offenses of this
subdivision,
(G) Conspiracy or attempt to commit any such offense described in subsections (vi)(A)
through (F);
I ----viiv_iii. If the city finds that jn annlicant's
background check results in a finding that the city determines is relevant to owning or
operating a massage establishment, the city may regulate that establishment in any manner it
deems proper that is in accordance with the law.
I 2. General Bus+nesa.Establishment Information.
I at'die
applieant-.
I —b a. The business stablishment name, proposed busitiessestablishment address, and
telephone number of the massage A f'ti en .
I —eb. The name and permanent address of the owner of the property upon which the
applicant intends to locate the massage establishment.
I —{lc. In the event the applicant is not the owner of record of the real property upon
which the massage establishment is or will be located, the application must be accompanied by
a notarized statement from the owner of record of the real property acknowledging that a
massage establishment is or will be located on the property. In addition, the applicant must
72500.00762\9350468.3
furnish a copy of the lease or rental agreement pertaining to the premises in which the massage
establishment will be located.
---ed. The applicant shall provide the name and permanent address of the owner of
the property at which the applicant intends to locate the massage businesscstablishnient. If the
property owner is a corporation, the application shall include the name of the corporation
exactly as shown in its articles of incorporation or charter together with the state and date of
incorporation and the names and residence addresses of each of its current officers and
directors, and of each stockholder holding more than five percent of the stock of that
corporation, and its registered agent for receipt of process. The applicant shall provide the
address of the corporation itself, if different than the address of the massage
Ibusit3essestablishment. If the property owner is a partnership, the application shall set forth the
name and residence address of each partner, including limited partners. If the property owner is
a limited partnership, it shall further a copy of its certificate of limited partnership as filed with
the county clerk. If one or more of the partners is a corporation, the provisions of this
subsection pertaining to corporate applicants shall apply to the corporate partner.
I —fie. The name(s) of person(s) having the management or supervision of the
applicant's business.
stahl shment.
Such other identification and information necessary to discover the truth of the
matters hereinbefore specified as required to be set forth in the application.
A description of all services to be provided by the applicant's proposed
massage busitiessestjbtishtj
I —ih. Name and address of any massage businessestahlishment or other like
basitiessestablishment owned or operated by any person whose name is required to be given
pursuant to this section.
3. Corporate Information.
a. If the applicant is a corporation, the application shall include the name of the
corporation exactly as shown in its articles of incorporation or charter together with the state
and date of incorporation and the names and residence addresses of each of its current officers
and directors, and of each stockholder holding more than five percent of the stock of that
corporation, and its registered agent for receipt of process. The applicant shall provide the
address of the corporation itself, if different than the address of the massage
IbEtsinessestablishment.
b. If the applicant is a partnership, the application shall set forth the name and
residence address of each partner, including limited partners. If the applicant is a limited
partnership, it shall further a copy of its certificate of limited partnership, as filed with the
county clerk. If one or more of the partners is a corporation, the provisions of this subsection
pertaining to corporate applicants shall apply to the corporate partner.
72500.00762\9350468.3
C. The applicant, corporation or partnership shall designate one of its officers or
general partners to act as its responsible managing officer/employee. Such person shall
complete and sign all application forms required of an individual applicant under this chapter.
The corporation's or partnership's responsible managing officer must, at all times, meet all of
I the requirements set by this chapter or the corporation or partnership eei4
reg ien e� shall be suspended until a responsible managing officer who meets such
requirements is designated. If no such person is found within ninety calendar days, the
corporation or partnership __.4:...ate _f r-e ;:._. +:__. -tie-permit is deemed canceled and a new
application for registFat-ion massage establishment permit must be filed.
4. Authorization for the City of Palm Desert, its agents and employees, to seek
information and conduct an investigation into the truth of the statements set forth in the
Iapplication and into the background of the applicant. kk,here authorized by this rahaptef.
5. A certificate of compliance from the health officer for the city of Palm Desert (as
designated by the city manager) that certifies that the premises of the massage
Ibusinessestablishment will meet all applicable codes and regulations must be submitted prior to
application approval.
6. Zoning consistency check in writing from city's community development
department. A zoning consistency check does not confer or authorize any entitlement to a use
I permit or building permit or similar, which process, if applicable, is separate from the eertifieate
„f registpatieffimassage establishment permit process.
7. A signed statement that the owner/applicant shall be responsible for the conduct of
Iall employees or independent contractors working on the premises of the W stablishment
and that failure to comply with California Business and Professions Code Section 4600 et seq.,
with any local, state, or federal law, or with the provisions of this chapter may result in the
revocation of the city-issued eetQieate ofFermi .
I8. Payment of a regilitffltiOflan application feed as per Section 5.87.080.
B. Upon receipt of the application, the city manager shall refer the application to other
city departments that shall inspect the premises, if any, proposed to be used as a massage
Ibusiness Stahl shment and shall make a written recommendation to the city manager concerning
compliance with the respective requirements.
C. The city manager or authorized representative shall have up to sixty calendar days
after the submission of all required information to complete his or her investigation.
5.87.060 Certified massage ablishmenl—Location.
A+i mass ebuSs-applying-t ape to in "e-atio-n--wbsr-e---a--rnassage establishment4ia5
address,been elesed due te eFiminal aetivity will require approval of a eendifiefial Use pefFAit per
speeilie building, as identified by its unique stfeet
iftluding all suites of subp
72500.00762 V 350468.3
A. No independent stand-alone massage establishment shall operate in any zone other
than the C-1 (with the exception of the El Paseo Overlay District), PC2, and PQ zones.
B. No accessory massage establishment shall operate in any., zone other than the C-]..,
C......—No independent stand-alone massage establishment shall operate within one thousand
feet of any other stand-alone massas�e establishment The -dLu measure of reference distance in this
subsection subsection shall be a straight line from the nearest property line containing the independent
stand-alone massage establishment to the nearest property line of another independentstand-
alone massage establishment.
5.87.070 Certified massage business Registr- issuance.
11 4e-affyin I......................
A. The city manager 4- " Rely-
---,y issue a eeFtifieate efreg busit njassage
establishment permit to a certified sole pfoprietershipmassagg establishment that demonstrates
all of the following:
1. That the operation, as proposed by the applicant, if permitted, complies with all
applicable laws, including, but not limited to, the city's building, zoning, business license, and
health and safety regulations.
2. The awneF is the only per-sen empleyed or used by that business te pFevide massage
se eesa22.lic jLiQL1js gompletc.
3. The owneF holds a valid and eurrent state eet4ifleate issued pursuant te Chaptef
10.5 of the Califeniia Business and Pre4�qs-iens Code and that the ewnerlapplieant is the same
peFSOR tO whom the CAMTC issued a valid and ouffent state eaeitifieate and ideatifieation eard.
—4 3. That-The applicant has not made a material misFopr-esenta4ion in this applieation
of with Fespeet to any ether- deeament er- informatieft i-equiFed by the eity with respeet to this
applieatieH er- 4br an applieatieii fef a eity massage pet-mit under- applieable lawgn��7 d in o
was complicit in, any activity or inactivity that would lead to suspension or revocation of
-----------— . ........................
massage establishment permit as set forth in this chapter within the last five years preceding the
application.
B. The eity manager shall issue a eet4ifieate a 1�FegistFation business to a eer-tified
ge busifiess, that demonstFates all of the f;311owing.!
i. That the operation, as proposed by the applieaHt. if Per-Mitted, eemplies with all
applieable laws, ineluding but not limited to. the eity's building, zoninge, busifiess keense. alld
health reulations.
2. The owner- holds a valid and eUffent state eertifieate issued pursuant to Chaptef
10.5 of the Galitbrnia Business and Pr-ot;�ssiens Code and that the ewfier4applieant is the same
POFSOR tO whem the GAN4TC issued a valid and eur-Fefit. state eeFtifieate aR6_1 6ar-d.
72500.00762\9350468.3
I3 4. The massage busineseestablishment employs or uses only state certified
massage practitioners whose certifications are valid and current and that owners of the state
certificates are the same persons to whom CAMTC issued valid and current identification
cards.
I --45. That the applicant has not made a material misrepresentation in this application
or with respect to any other document or information required by the city with respect to this
application or for an application for a city massage permit under applicable law within the last
five years.
I6. That the background check for any applicant/owner authorized by this chapter
shows that such person has not been required to register under the provisions of Section 290
of the California Penal Code; within five years preceding the application had a conviction in
court of competent jurisdiction for any of the crimes identified in Section
5.87.050(A)(1)(d)(vi)(B) through (G); has not had an individual or businessestablishment
permit or license with any agency, board, city, county, territory, or state, denied, revoked,
restricted, or suspended within the last five years; and has not been subject to an injunction for
nuisance under Penal Code Sections 11225 through 11235 within the last five years.
—Q. If the application is denied, the city manager shall promptly give the applicant
written notice thereof and the findings for such denial. The applicant may submit a written
request for reconsideration with the city manager within ten calendar days of the date of the
city manager's written notice of denial. The request for reconsideration shall be accompanied
by a fifty-dollar filing fee, or other amount as established from time to time by city council
resolution. Upon receipt of the written request, the city manager shall reconsider the
application together with any new records, documents, or information presented by the
applicant, or discovered by the city, within the time and manner provided in Section 5.87.050.
The city manager's decision on the reconsideration shall be final.
I5.87.080 Reg'tstratienMassaae establishment permit application fee.
A Fegis4fat-ioRm1vssa a establishment Hermit application fees if any, shall be set by resolution
of the city council and shall be required effly-for
E)F state eertified awn all applicants.
5.87.090 Business license.
All peFseitsagpplicaiits shall obtain a business license where required by the city's business
license provisions. The issuance of a eeftifieate of regi massage
establishment permit is a condition precedent to the granting of such a business license. Upon
the issuance of a massage establishment permit pursuant to this
chapter, the applicant shall apply for and furnish the information necessary to obtain a business
license as required by the provisions of this code. No business license shall be issued until the
eeFtifleate '. massage establishment permit has been issued and the business license
72500.00762\9350468.3
fee, as provided in this code, has been paid. The ►.•,mess 'i^e^se fee shall be no highef than
as defined in subdivision (a) of Seetion 13401 Of the GafifOffiia Cor-poFatiOns the lowest 1�e that is applied to other- individuals afid businesses pt!eyidifig pr-el�ssiena4
5.87.100 Notification of changes.
IEvery massage gstablishment permit holder shall report in
writing to the city manager any and all changes of address or ownership of the massage
Ibusinessestablishment, and any changes or transfers of massage practitioners employed in the
business or practice within thirty calendar days of said change(s).
I5.87.1 10 Ceffifieate of regis`r-a4i HMassage establishment permit expiration and renewal.
IA. Ceftifieates of fegistmtien shall be valid as fellews-
I ——4 A. Massage busitlesses:establishment permits_shall be valid for two years from
_... ..... ....
issuance or as extended pursuant to this chapter;_
2. For- sole prepfietars-; fef twe yeafs fi--em s extended pufstiant to this
I eha
IB. The city massaee establishment permit shall be renewed in
accordance with the expiration schedule set forth in this section.
fegistizatien within sixty ealendaf days, prior to I shall apply to the eity to amend
C. The registered eet4ifieate haider busliness shall apply to the eity to renew stieh
e in the Fegistfa
extend the eet4ifieate of registration ene time in a Fenewal peFied fOF tip to ninety ealendaF days
C. If a massage establishment permit holder wishes to renew such permit prior to its
expiration, he or she must apply to the city to renew such permit within sixty calendar days.
prior to expiration.
—. .. _...._..._.._..
D. If a renewal application and all required information for the renewal is not received
by the ". — within thirty ealeiidaf u on expiration, the e-~�eate-o
red stratienmassage establishment permit shall be deemed expired and no privilege to provide
massage services in Palm Desert shall exist. Renewals shall be processed and investigated and
the applicant is required to submit that information which has changed from the last application
or renewal.
5.87.l 20 Revocation or suspension of eert&ate of fegistratieftnia5ssa e_t t hli }nvent. errnit.
72500.00762\9350468.3
I A. Ce Qifireates of..egistr- iaHMassage establishment hermits issued to a certified
massage business eet4ified sele preprietershi establishment shall be suspended or revoked by
the city manager upon any of the following grounds:
I1. The massage establishment permit holder has been convicted o_f_a crime that would.
have caused denial of the inassa�e establishment hermit.g
,
pereent ef meFe of the massage besifiess has beeH eonvieted of a efime that would have eatised
_ 2. • The massage establishment blishment permit holder has made a
material misrepresentation on the application for eef4ilieate of massage establishment
ep rmit or renewal.
I -43. The registered eei4ifieato
massaae establishment Hermit holder has engaged in
conduct or operated the certified massage bus iHes4establishment or as a massage practitioner in
a manner which violates any of the provisions of this chapter, any conditions of the permit, or
any of the laws which would have been grounds for denial of the permit.
I 5$. The registered ^A�'� *�massae_establshmet�t.permit holder employs or uses
_
one or.more non-certified massage to ;;practiti_oner , to perform massage services.
I -65. Violations of this chapter or of California Business and Professions Code
Section 4600 et seq., have occurred on the busine%establishment premises.
I -- 76. The r-egisteFed ^ei*i€wa4emassage establishment permit holder has failed to
comply with one or more of the z ni� � �usnc s_ Ice�sw 'eor' health and safety requirements
under this chapter.
ter-e e,.t•+
—S7. The ��:°�.___�- ^ �-=-�=_atemassageesta-blishtnent Hermit holder has engaged in
fraud, misrepresentation, or false statements in obtaining or maintaining a eeoi€ie-ate-e€
reg-istt-t-i"niassage establishment permit.
I8 There is an urgency of immediate action to protect the public from injury or harm
B. The term of suspension shall be not more than sixty calendar days.
IC. The 4usnension or revocation shall be ellective immediately by the city manager..
I D. If a massage establishment permit is suspended or revoked, the city manager shall
direct or cause the massage establishment to be closed and locked against use by the public in
72500.00762\9350468.3
I order to insure compliance with an order of suspension or revocation. The aggrieved party may
pursue a Subsequent areal or hearing by following the procedures set forth in this chapter.
E. It is unlawful for any person to conduct the business of a massage establishment or
carry on the busirics5 of massage while the massyge establishment permit remains suspended or
revoked_t ending a hearing_
F A_nv massage establishment permit or certificate of r_e istration for a massage
business.existing at the time this ordinance is adopted may be revoked or suspended as
provided in this chapter.
5.87.130 Suspension or revocation notice.
A. Notice shall be given to the fegister-ed eerti€e-atemassa establishment hermit holder
by letter stating the grounds for proposed revocation or suspension. Notice shall be given by
personal service or certified-of., registered,=or _fi_rst class mail orthe letter to the address shown
on the last application or renewal. if reaseHable a4tempts to
ay be provided by AFS4 elaSS, Mail.
B. If the eertitieate e-f-fe6-*-.-,,I,ra*,'-.oniiiassagg establishment permit is suspended or
revoked, the massage establishment permit shall be surrendered.
I C. Service shall be deemed complete when personal service is made, or when the
eertifie.-I.notice letter is delivered.by__certified. re is Bred, or first
class mail.
5.87.140 Appeal from revocation, suspension.
The decision of the city manager to Ye�•eke of suspend r rev_c�ke
a massage establishment permit may be appealed by the registered ^ertifiea`emass
establishment.r,ermit holder in accordance with the following procedures:
A. All appeals shall be in writing and shall contain the following information: (1)
name(s) of the person filing the appeal (appellants); (2) a brief statement in ordinary and
concise language of the grounds for the appeal; and (3) the signatures of all parties named as
appellants and their mailing addresses.
B. A filing fee for an appeal of one hundred dollars, or other amount as established
from time to time by city council resolution, must be paid to the city at or prior to the time of
the filing of the appeal.
C. Any appeal filed that fails to provide all of the information required by this section
and the appropriate filing fee shall be deemed incomplete.
D. A complete and proper appeal of the suspension
regis4fatiA r revocation of a massage establishment permit shall be filed with the city clerk
within ten calendar days of service of the letter revoking or suspending the ee••* €
72500.00762\9350468.3
Iregistratianmassage establishment Hermit or within ten calendar days of any other action that is
the subject of appeal.
E. After receiving the written appeal, the city clerk shall schedule a hearing before the
city council. The city council may refer the matter to a hearing officer. The city council may
decide the matter based on the recommendations and findings of the hearing officer, if it so
chooses.
IF. The decision of the city council or hearing officer shall be final.
5.87.150 Reapplication after denial or revocation.
No reapplication for a eeoifieate of registr-aticffimassarie establishment Hermit will be
accepted within two years after an application or renewal is denied or a eer4i€re-ate-of
registr-at-i"m rssage_estahl shrnent_�zermit is revoked;
r-egistfation business-is. If the application or.renewal is denied for the sole reason that the
application or renewal application is incomplete reapplication may occur to complete the
application or renewal application, however, an additional application fee will be charged per
submitted application. if an application is denied for the sole reason that a massage practitioner
does not possess the required training, reapplication may occur when the required training is
completed.
5.87.160 Inspection by city and notices of violation.
A. The city shall have the right to enter the premises from time to time during regular
business hours prior to the issuance of a eet4if eate of regist-Fationmassage establishment permit
and subsequently for the purpose of making reasonable inspections to enforce compliance with
this chapter and with building, fire, electrical, plumbing, and/or health and safety regulations. In
Ithe event a massage establishment permit has been issued, it may be
revoked or suspended in the manner set forth in this chapter. It is unlawful for any massage
Iessestablishment owner/operator to fail to allow city inspection officers into the premises
or hinder such officer in any manner. During an inspection, enforcement officers may also
Iverify the identity of the owner(s) and all employees.
IB. Whenever city officials make an inspection of a massage busine,%ilstablishment and
finds that any provision of this chapter has been violated, he or she shall give notice of such
violation by means of an inspection report or other written notice. In any such notification, the
investigating person shall:
I 1. Set forth the specific violation or violations found, and shall notify the registered
eerti€ic sit massage establishment permit holder that failure to comply with any notice issued in
accordance with the provisions of this chapter may result in the revocation or suspension of the
Ia iemass.a.e„establishment permit.
I2. The register=ed eeFti eaternilssaxe establishment permit holder may be issued a
warning that any future violation of this chapter may result in suspension or revocation of the
Imassage establishment permit, or the city officials may establish a
72500.00762\9350468.3
specific and reasonable period of time for the correction of the violation or violations. No time
to correct need be given for health and safety violations or violations of criminal law.
I3. The metered-e-ett-i€ieatemassage establishment permit holder and operator shall take
immediate action to correct violations and city officials may re-inspect the
Ibusinessestablishment for compliance.
5.87.170 Transfer of massage business eeftifleate of registFationestablishmgIg Permit.
I A maSsag __estahlishmot_p rmit shall not be transferable
except with the written approval of the city manager. A written application for such a transfer
shall be made to the city manager. The application for such transfer shall contain the same
I information as required herein for an initial application for a ee..tifie to of..egistrat;enmassaUe
establishment permit as set forth in Section 5.87.050. In the event of denial of such transfer,
notification of and reasons for denial shall be set forth in writing and shall be sent to the
applicant by means of registered or certified mail or delivered in person.
5.87.180 Special events notification required.
When extra massage thetapists.tp actitionel's are required for a special event at or organized
by a certified massage business eF _er-til.Yed sole praetit__e:�e•�stablishment, the owner, manager,
or operator of the businessestablishcncnt must supply the city with a list of certified massage
practitioners who will be working at the event, copies of their certificates of registration, and
any other information the city may reasonably require, not less than two weeks before the date
of the event.
5.87.190 Exemptions.
The provisions of this chapter shall not apply to the following classes of persons or
Ilusitleasesestablishmesnts while engaged in the performance of their duties:
A. Physicians, surgeons, chiropractors, osteopaths, acupuncturists, nurses or physical
therapists duly licensed to practice their respective professions in the state of California and
working within the scope of their licenses.
B. Barbers, cosmetologists, estheticians, and manicurists who are duly licensed under
the laws of the state of California while engaging in practices within the scope of their licenses,
except that this provision shall apply solely to the massaging of the neck, face, hands and feet,
and/or scalp of the customers, and this exception shall not apply to full body work or full body
massage. ..
than ='Ary
peFC-eRt of their gFOSS fevenue fforn fiA body wer-k or f6ll bed), Massage.
C. Hospitals, nursing homes, sanatoriums, or any other health facilities duly licensed by
the state of California.
72500.00762\9350468.3
D. Accredited junior colleges and colleges or universities whose coaches and trainers
are acting within the scope of their employment.
E. Trainers of amateur, semi-professional or professional athletes or athletic teams while
engaging in their training responsibilities for and with athletes; and trainers working in
conjunction with a specific athletic event such as an outdoor road or bike race.
F. Health clubs, health spa, gymnasium, or other similar facility designed or intended
for general physical exercise or conditioning in which the furnishing of full body work or full
Ibody massage generates less than fifty percent of the stablishment's gross revenue.
However, persons performing massage services shall obtain a state certification and city
Ieeftilieate of registFatianmassage establishment_permit in conformance with this chapter.
5.87.200 Health and safety requirements—Building requirements.
IAll premises of certified massage bu5seses_tablishments shall be subject to periodic
inspection by the city for compliance with health, safety, and building standards and all such
establishments shall comply with, in addition to zoning and building codes, the following
requirements:
A. A recognizable and readable sign shall be posted at the main entrance of each
I massage business stablishment identifying the business establishn ent as such
businessestablishment; provided, that all such signs shall comply with the sign regulations of the
city.
B. The owner or operator of each massage . li hinent shall display the
eet4itieate of registrationmassage establishment Hermit issued to the businessgstablishment and
to each massage practitioner employed in the basinessestablishment in an accessible and
conspicuous place on the premises. Certified massage practitioners shall have his or her original
state certificate at his or her place of business and his or her identification card in his or her
possession while providing massage services.
C. Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated,
designed and provided in accordance with the fire department and building department
regulations and standards.
D. All building openings, entries, windows, etc., shall be located, covered or screened
in such a manner as to prevent a view from the outside of the building into dressing rooms,
Itreatment rooms, restrooms, and other areas where patrons of the busifiessestablishment may
not be fully dressed.
E. Lighting in parking lots shall be in compliance with Chapter 24.16 of the municipal
code.
72500.00762\9350468.3
F. Construction of rooms used for toilets, baths and showers shall be made waterproof
with approved waterproofed materials and shall be installed in accordance with the city building
code. Plumbing fixtures shall be installed in accordance with the city plumbing code:
1. Steam rooms and shower compartments shall have waterproof floors, walls and
ceilings approved by the city;
2. Floors of wet and dry heat rooms shall be adequately pitched to one or more floor
drains properly connected to the sewer. Dry heat rooms with wooden floors need not be
provided with pitched floors and floor drains;
3. A source of hot water must be available within the immediate vicinity of dry and
wet heat rooms to facilitate cleaning.
G. Hot and cold running water under pressure from a potable source shall be provided
to all washbasins, bathtubs, showers, and similar facilities. Each water basin shall be provided
with soap or detergent and single-service towels placed in permanently installed dispensers. A
trash receptacle shall be provided in each room where such facilities are located.
H. Provide minimum lighting in accordance with the Uniform Building Code, and in
addition, at least one artificial light of not less than forty watts shall be provided in each
enclosed room where massage is being administered.
I. Floors shall be free from any accumulation of dust, dirt, or refuse.
J. One front door shall be provided for patron entry to the massage
Ibusinessestablishment, which shall open to an interior patron reception and waiting area
immediately inside the front door. All patrons and any persons other than individuals employed
Ior retained by the massage stablishment shall be required to enter and exit through the
front.
5.87.210 Health and safety requirements—Operating requirements.
IAll premises of certified massage establishments shall be subject to periodic
inspection by the city for compliance with health, safety, and building standards and all such
establishments shall comply with the following requirements:
A. The hours of operation shall be displayed in a conspicuous public place in the
reception area and in any front window clearly visible from outside of the massage
Ibusiestablishment.
B. A list of services available and the cost of such services shall be posted in an open
I and conspicuous public place on the premises. No massage busiaessestahlishment operator shall
permit, and no person employed or retained by the certified massage businessestablishrri t shall
offer to perform, any services or fees other than those posted.
72500.00762\9350468.3
C. A record shall be maintained that includes the date and time of each massage, the
name and address of the patron, the name of the person administering such massage, and the
type of massage given. Such records will be made available upon request based on good cause,
for inspection by the city manager or police chief, or their designees. The information
contained in such records shall be confidential.
D. The premises shall have adequate equipment for disinfecting and sterilizing non-
disposable instruments and materials used in administering massages. Such non-disposable
instruments and materials shall be disinfected after each use on each patron.
E. It is unlawful for any certified massage practitioner or other person to be other than
fully clothed in non-transparent clothing at all times that shall not expose their genitals, pubic
Iarea, buttocks, or chest or for any operator of a massage businessestablishment to allow or
permit prohibited dress.
F. No loudspeakers or sound equipment shall be used by a massage establishment for
amplification of sound to a level discernible by the public beyond the walls of the building in
which use is conducted.
G. No person shall give, or assist in the giving of, any massage or other body treatment
to any other person under the age of eighteen years, unless the parent or guardian of the minor
person has consented thereto in writing.
H. No person owning, operating, or managing massage establishment may employ or
use any person under eighteen years of age without written parental consent.
1. Maintain walls, ceilings, floor, pools, showers, bathtubs, water basins, toilets, wet
and dry heat rooms, steam or vapor rooms and cabinets and all other facilities in good repair
and in a clean and sanitary condition. Showers, water basins, toilets, wet and dry heat rooms,
steam or vapor rooms, and cabinets and compartments shall be thoroughly cleaned at least
Ionce each day the massage busitiessestablislinient is in operation. Bathtubs shall be thoroughly
cleaned after each use.
J. Provide clean and sanitary towels, sheets and linens for each person. No common
usage of sheets, towels and linens shall be permitted. Towels, sheets and linens shall be
provided in sufficient quantity and shall not be used by more than one person unless such
towels, sheets and linens have been re-laundered. Separate closed cabinets or containers shall
be provided for the storage of clean and soiled towels, sheets and linens, and such cabinets or
containers shall be plainly marked "clean linen" and "soiled linen."
K. Cover pad used on massage tables in workmanlike manner with durable, washable
plastic or other waterproof material.
L. Unlock all exterior doors from interior side during business hours. In the instance
that the exterior door is the only door in the massage establishment, it may be locked, in the
72500.00762\9350468.3
interests of privacy and safety, if all persons inside the massage establishment are either giving
or receiving massages.
I M. No massage establishment granted a eeFfilieate massage establishment
_ep rmil or license under the provisions of this chapter shall place, publish or distribute, or cause
to be placed, published or distributed, any advertisement, picture or statement which is known,
or through the exercise of reasonable care should be known, to be false, deceptive or
misleading in order to induce any person to purchase or utilize any professional massage
service.
N. It is unlawful for any massage service to be carried on within any cubicle, room,
booth, or any area within a permitted establishment which is fitted with a door capable of being
locked, with the exception of certain massage establishments envisioned under subsection L of
this section. Toilets and cubicles used solely for the application of liquid and vapor baths shall
be clearly marked as to purpose on the exterior door or curtain of said cubicle, room, or
booth. Nothing contained herein shall be construed to eliminate other requirements of statute,
ordinance or municipal code concerning the maintenance of premises, nor to preclude
authorized inspection thereof, whenever such inspection is deemed necessary by the code
enforcement, the police or health departments.
O. No permitted establishment shall operate as a school of massage, or operate in the
same location, or use the same facilities as that of a school of massage except as otherwise
may be provided by law.
P. No person operating a massage establishment shall permit communication devices to
be installed or used in any manner on the premises so as to interfere with or hinder inspections
by code or law enforcement officers.
Q. No person or persons shall be allowed to live or sleep inside the massage
establishment at any time.
R. No person afflicted with an infection or parasitic infestation transmissible to a patron
shall knowingly provide massage therapy to a patron, or remain on the premises of a certified
Imassage business stablishment while so infected or infested.
S. It is unlawful for any certified massage practitioner or other person to massage the
genital area of any patron or the breasts of any female patron or for any operator of a massage
IIiusineestabllshmenA to allow or permit such massage.
I T. If during the life of a eer-tifieate of regi-stratii-massag,e._establishment.pc rmit, the
applicant has any change in information concerning the original application, notification must be
made to the city manager, in writing, within thirty calendar days of the change.
I U. It is unlawful for any certified massage business of any registered
ee--tifieateestablishment or any massage establishment permit holder, owner, operator, or
72500.00762\9350468.3
responsible managing officer/employee to violate any of the mandatory requirements of this
chapter applicable to massage busifiessestablishments.
5.87.220 Violation—Penalties.
A. Unless otherwise exempted by the provisions of this chapter, every person, whether
acting as an individual, owner, employee of the owner, operator, or employee of the operators
or whether acting as a mere helper for the owner, employee, or operator, or whether acting as
a participant or worker in any way, who gives massages or conducts a massage
businessestablishment, or who, in connection with the businessestablishment, gives or
administers, or practices the giving or administering of, massages eF baths or any of the
servieesas defined in this chapter, without first obtaining state certification and a city eertifieate
of-registr-atienmassa e establishment permit, or who shall violate any provision of this chapter,
shall be guilty of an-iflPaetiena misdemeanor.
B. Any owner, licensee, manager, or r-egisteFed-eeFtifieetemassage establishment permit
holder in charge or in control of a massage bus inessestablishment or certified massage business
o.t;rea ;ela prepr:et^Fr''° establishment or who knowingly employs a person who is not in
possession of a valid, unrevoked eet4ifieatem&s_sa;e..._establishment_. omit, or who
allows such persons to perform, operate, or practice within such a place of business, shall be
I guilty of an i Paett�a._misdemeanor.
C. Anyone found to have violated any provision set forth hefein shall be guilty f
in&aaetian-and-anyone-found to-have vie-lated- rei+-t-4iiare-44ian--thee
in this chapter shall be guilty of a misdemeanor; however the
city attorney may reduce the penalty to an infraction. The penalties for such violations are as
set forth in Chapter 1.12 of the municipal code.
5.87.230 Other remedies.
The provisions of Section 5.87.220 are not to be construed as exclusive remedies and, in
the event of violation, the city may pursue any proceedings or remedies otherwise provided by
law.
5.87.240 Conducting a business as a nuisance.
IAny massage hTinessestablislunent operated, conducted, or maintained contrary to the
provisions of this chapter shall be unlawful and a public nuisance, and the city attorney may in
the exercise of discretion, in addition to or in lieu of prosecuting a criminal action hereunder,
commence an action or actions, proceeding or proceedings, for the abatement, removal and
enjoinment thereof, in a manner provided by law.
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72500.00762\9350468.3
Title 5 BUSINESS TAXES, LICENSES AND REGULATIONS
Chapter 5.90 MASSAGE PRACTITIONERS
5.90.010 Title.
This chapter shall be known as the "Massage Practitioner Law of the City of Palm Desert."
5.90.020 Authority.
This chapter is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the
Government Code of the state (commencing with Section 51030) with recognition of the
limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the
state (commencing with Section 4600).
5.90.030 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and
provisions contained in this section shall govern the construction, meaning and application of
words and phrases used in this chapter:
I "Applicant" shall mean an applicant for a certificate of registration— adividul.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code Section 4600 et seq., as amended, and
referred to as CAMTC herein.
submission of satisfiteter-y eviden 1 that a massage business of sele pfeffietOfship
employs of uses efily eeoified massage theffipiStS er praetitieneps possessing valid and eur-Fent
state eeftifieations and has satisfied all other requirements pursuant to the pfevisions of this
chapter.
I "Certificate of registration—indivi l" means a certificate issued by the city manager upon
submission of satisfactory evidence that a massage practitioner or therapist has a valid and
current state certification and has satisfied all other requirements pursuant to the provisions of
this chapter.
"Certified massage business" means any business where the only persons employed or used
by that business to provide massage services have current and valid state certifications.
"Certified massage practitioner" means any person holding a current and valid state
certificate issued by the CAMTC pursuant to California Business and Professions Code Section
4600 et seq., as amended, whether as a massage practitioner or massage therapist, as defined
therein.
72500.00762\9352503.2
tc Cet4ified sole xx
means afly massage business where the owner- is the on!y
euFrent and valid state eer-tifieatio-fl-.
"City manager" means the city manager of the city of Palm Desert, or designee.
"Massage"
m 'hod of treating the extemal parts of the bedy for- remedial,
heakh, of hygienie form of eensideffitiOR (whether- for the puppeses faf any .masisage, as part of
x
kneading, or- etheFwise) by fneans Of pr-eSSUFe On OF
oF stimulating the &Eternal
x xidin x
aids,pai4s of the bedy. with or- without the aid of atiy ffleehanieal or eleetfieal apparatus et-
such as rubbingx
antisepties or ether similar- pfepafations eamfmfily
x xpowders, xletions, ointments,
baths, ineluding, but fiet limited to, - Russian, x
, sheweF, eleetrie tub, sponge, rnifieral, fbmentation, ef atiy other typebath.
I "Massage" means the scientific manipulation of the soft tissues.
"Owner" or "operator" means any and all owners of a massage business
pat4ner, a shaFeholder-, a sele propFieter, OF an), per-son who has a five peFeent or- greater-
owner-ship ifitefest in a massage business whetheF as an individual, eer-peFate etitity, lifflited
.establishment.
I "Registered certificate holder" means a ,ertitied massage
ri titioner who has been issued a certificate of registration by the city manager.
"State certification" or "state certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business and Professions Code Section 4600 et seq.,
as amended.
I .
for aHy individual to pmetiee massage k9f 601:npenliatiffli within the eity unless that individual is
...
massageage
&ithin the eity unless all individuals empleyed by the massage business to pef lbnia
massage, whether as an employee or- independent eentFaCtff, are eet4fied .
praetitieners
B. Within one yeaf of passage of the ordinanee codified in this ehapter, uniess isisued -a
OUFFellt aNd valid eei4ifieate of fegistFatien issued pur-suai# to this ehapteF, it is unlawful t;3r- an�
person .assoeiatie-n,-partnership-orre-orpofat-ion be engaged �a + eaF>d et-ar bats ►� er pc rit t
xupon any pFemises within the eity,
the epepation
of a eef4ified massage business oF the fimetien of a eeFtitled massage pr-aetitioiier-. (OM. 12.56 §
2,21--)
72500.00762\9352503.2
I 5.90.0505.90.040 Certificates of registration .
A. It is unlawful to practice massage for any form of consideration as a principal,
employee, agent or otherwise within the city, unless a person has a current and valid certificate
of registration issued pursuant to this chapter. This section expressly applies to all massage
practitioners working as individuals unless specifically exempted pursuant to the provisions of
Section 5.87.190.
B. The city manager shall issue a certificate of registration to any certified massage
practitioner who demonstrates the following:
1. A valid and current state certification; and
2. A valid and current California Massage Therapy Council ("CAMTC") issued
identification card.
C. If the application is denied, the city manager shall promptly give the applicant
written notice thereof and the findings for such denial. The applicant may submit a written
request for reconsideration with the city manager within ten calendar days of the date of the
city manager's written notice of denial. The request for reconsideration shall be accompanied
by a fifty-dollar filing fee, or other amount as established from time to time by city council
resolution. Upon receipt of the written request, the city manager shall reconsider the
application together with any new records, documents, or information presented by the
applicant, or discovered by the city, within the time and manner provided in Section 5.87.050.
The city manager's decision on the reconsideration shall be final.
ID. A certificate of registration- 4ndi l shall not be transferable.
I 5.90. 605.90.050 Business license.
All persons shall obtain a business license where required by the city's business license
Iprovisions. The issuance of a certificate of registration , � is a condition
precedent to the granting of such a business license. Upon the issuance of a certificate of
registration pursuant to this chapter, the applicant shall apply for and furnish the information
necessary to obtain a business license as required by the provisions of this code. No business
license shall be issued until the certificate of registration has been issued and the business
license fee, as provided in this code, has been paid. The business license fee shall be
commensurate with the business license fee charged to other professionals as established by this
code.
Inn n7n5_.9Q. (() Certificate of registration expiration and renewal.
A. Certificates of registration--44M&A shall be valid for two years from issuance or
as extended pursuant to this chapter.
B. The city eer-tifieate of registr-ation shall be renewed :n aeeer-danee with the expiration
I .
72500.00762\9352503.2
I --C B. The registered certificate holder—individual shall apply to the city to renew
such registration within thirty calendar days prior to expiration of the certificate of registration
and shall apply to the city to amend the certificate of registration within thirty calendar days
after any change in the registration information including, but not limited to, a change in the
work address. The city manager may extend the certificate of registration one time during a
renewal period for up to ninety calendar days for individuals who provide timely evidence of a
renewal application to CAMTC. Renewals shall be processed and investigated and the applicant
is required to submit that information which has changed from the last application or renewal.
D. If a renewal application and all required information for the renewal is not received
by the city manager within thirty calendar days after expiration, the certificate of registration
Ishall be deemed expired and no privilege to provide massage in the city shall exist. (OFd. 1256
I5.90.0805.90.070 Revocation or suspension of certificate of registration.
A. The city manager shall revoke or suspend a certificate of registration issued to
Iiiidivid an individual upon the following grounds:
l. The registered certificate holder is no longer in possession of a current and valid
state certification or CAMTC issued identification card;
2. The registered certificate holder has engaged in fraud, misrepresentation, or false
statements in obtaining or maintaining a certificate of registration.
IB. The term of suspension of any per-mitceafficate of registration shall be not more than
sixty calendar days.
I5 90.0905.90.080 Suspension or revocation notice.
INotice of suspension or revocation of a certificate of Wividual shall be made
in compliance with Section 5.87.130.
I5.90.1 5.90.090 Appeal from revocation, suspension.
The decision of the city manager to revoke or suspend a certificate of registration may be
appealed by the registered certificate holder in accordance with the procedures set forth in
Section 5.87.140.
I 5.90.1 W5.90.100 Reapplication after denial.
No reapplication for a certificate of registration will be accepted within one year after an
I application or renewal is denied or a certificate of registration is revoked. «'-d. 1256 `'
28a34
I 5.90.1 5.90.110 Compliance with Chapter 5.87.
72500.00762\9352503.2
Certified massage practitioners shall comply with all applicable health and safety regulations
I found in Sections 5.87.200 and 5.87.210. (Ora 1256 § 2 2012)
5.9041 05.90.120 Violation—Penalties.
A. Unless otherwise exempted by the provisions of this chapter, every person, whether
acting as an individual, owner, employee of the owner, operator, or employee of the operators
or whether acting as a mere helper for the owner, employee, or operator, or whether acting as
a participant or worker in any way, who gives massages or conducts a massage business, or
who, in connection with the business, gives or administers, or practices the giving or
administering of, massages as defined in this chapter, without
first obtaining state certification and a city certificate of registration, or who
Yio4aleviolates any provision of this chapter, shall be guilty of en-infr-aetiona misdemeanor.
B. Any massage establishment permit
holder in charge or in control of a Riassage business OF ertified massage business E)r eertilied
se le-pr-eprietffShip who knowingly employs a person who is not in possession of a valid,
unrevoked certificate of registration, or who allows such persons to perform, operate, or
Ipractice within such a place of business, shall be guilty of an infraetiena misdemeanor.
C. Anyone found to have violated any provision set forth herein shall be of an
infi-aetion and anyone found to have violated � A . . set fet4h hefeiH iineire, than t.
times in a twelve math* peFied shall be guilty of a misdemeanor; however the city attorney
may reduce the penalty to an infraction. The penalties for such violations are as set forth in
Chapter 1.12 of the municipal code.
I 5.90 4)5.90.130_l 3 Other remedies.
IThe provisions of Section 5-98:1305.90.12 are not to be construed as exclusive remedies
and, in the event of violation, the city may pursue any proceedings or remedies otherwise
provided by law.
72500.00762\9352503.2
I M 0E5FR1
73-5io FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346—o6ii
FAX: 760 341-7098
inro@palm-desert.org
CITY OF PALM DESERT
LEGAL NOTICE
NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BY THE PALM
DESERT PLANNING COMMISSION RECOMMENDING APPROVAL TO THE CITY COUNCIL
AMENDMENTS TO THE PALM DESERT MUNICIPAL CODE, TITLE 5 BUSINESS TAXES,
LICENSES AND REGULATIONS REGARDING MASSAGE BUSINESS ZONING AND LAND
USE RESTRICTIONS BASED ON ASSEMBLY BILL 1174.
Project Location: City wide
Recommendation: Staff is recommending approval of the above noted request.
Public Hearing: The public hearing before the Planning Commission will be held on November
4, 2014, at 6:00 p.m.
Comment Period: Based on the time limits defined by CEQA, your response should be sent at
the earliest possible date. The public comment period on this project is from October 23, 2014
to November 4, 2014.
Public Review: All related documents are available for public review daily at City Hall.
Please submit written comments to the Planning Department. If any group challenges the
action in court, issues raised may be limited to only those issues raised at the public
hearing described in this notice or in written correspondence at, or prior to the Planning
Commission hearing. All comments and any questions should be directed to:
Kevin Swartz, Assistant Planner
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
(760) 346-0611
kswartz@cityofpalmdesert.org
Publish: Desert Sun LAURI AYLAIAN, SECRETARY
October 22, 2014 Palm Desert Planning Commission