HomeMy WebLinkAboutStaff Report 4.C 02/04/2013 A Pnd,Gti.Item 4.0
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DATE: February 4, 2013
TO: Honorable-Mayor and Members of the City Council through City Manager
•FROM: Patrick Williams, Police Chief D-°)
SUBJECT: Introduction=;(First-Reading) of an Ordinance Adding-,Chapter 8.38, "Massage
Establishments and Massage Professionals", to the City of Petaluma Municipal
Code
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RECOMMENDATION
It is reconunended that the Councilintrodul e an Ordinance Adding Chapter 8.38, "Massage
Establishmentsand Massage Professionals"to the City of Petaluma Municipal Code.
BACKGROUND
The zoning aspects of massage•,establishments are dealt with in'Chapter 10 of the Implementing
Zoning Ordinance, but there is currently no regulatory ordinance governing massage operations.
This action'will establish licensing regulations for massage establishments and professionals in
Petaluma. This item was brought to the City Council on`December 3,.2012. After a staff
presentation and public comments were heard,the.City Council directed staff to return after
conducting additional outreach With massage pr Iofessionals'in the community.
Community meetings were held at the Petaluma1Community Center on 17 and 20,
2012 and on January 17, 2013. In addition to set eral local_professionals who attended the
meetings,representatives of the•CaliforniiaMassage Therapy Council and the National Holistic
Institute were in attendance.- City staff and the meeting participants engaged in helpful dialogue
to increase understanding and share perspectives on the proposed ordinance. :In,addition to the
public comments offered to the City Council at',the December 3, 2012 meeting; some community
meeting participants supportedan exemption or"grandfather clause" for any entity or person
presently offering massage who agreed to the following:conditions, which in summary were 1)
. Live scan background check; 2) Proof of 100 hours of massage education; and 3) Proof of
insurance. Staff is not recommending the inclusion of a"grandfather",clause as part of the
ordinance: The proposed,ordinance has been amended, however,to extend compliance with the
ordinance from 90 days as originally envisioned to two years, to allow ample time for those not
currentl •certified by CAMTC to coinplete their certification requirements..
Agenda-Review: lir
City Attorney Finance Dir for City Manager
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DISCUSSION
The Petaluma.Police.Department has periodically investigated and found.valid, complaints of
some massage parlors violating prostitution laws, as well',as businesses being operated as fronts
for prostitution. To combat this,'issue,the Police Department recommends that the Council adopt
an ordinance that wilhestablish licening,regulations for massage establishments and
professionals. Research of other municipalities indicates their ordinances follow guidelines set
forth in the Business and Professions'Code;Section 4600 which establishes structured guidelines
for massage practitioners/therapists. These guidelines focus on the public interest, safety and
welfare by establishing minimum building standards, including,sanitation and health standards,
best business practices, and minimum qualifications for massage professionals.
The proposed ordinance requires all massage professionals to be,certified by the California
Massage Therapy Council (CAMTC). The ordinance also establishes that the business owner is
responsible for the conduct of their employees at all times. Additionally;the proposed ordinance
provides the City of Petaluma with inspection rights to ensure compliance with the provisions of
the ordinance. As well, provisions in the ordinance include guidelines'for operations such as a
list of services and the costs-for the services, prohibiting consumption ofalcohol or drugs on the
premises,and setting hours of operation between 7 AM andl0 PM: Additionally, there is a
provision for"Outcall Massage Endorsement" allowingioutcall as long as the massage
professional providing the outcall service is certified.
Violations of the ordinance can,beenforced in any combination as permitted by Title One of the
City of Petaluma Municipal Code (Code Enforcement) including: 1) Administrative Citations
($100 for first violation,$500 for second violation, $1000 for third and each subsequent
violation); 2) issuance of a notice of violation in lieu of issuing an administrative citation (up to
$1,000 per day, per violation), 3) issuance of a misdemeanor violation(fine in the amount not to
exceed $1000 and/or imprisonment fora period not to exceed 6 months); and any other
enforcement and legal remedies available to the City under the law including recovery of
attorneys' fees.
The Police Department also met with the Petaluma Downtown Association(PDA) and discussed
the proposal and any concerns relative to this proposed ordinance. The PDA was concerned
about the regulation stifling business, but acknowledged that prostitution activity could be worse
from,a public relations perspective. It=was emphasized that the goal of the ordinance was to
support business and prevent illicit activity from operating outs of businesses that appear
legitimate. Additional,outreach Waseonducted,with"the Director.of Governmental Affairs for the
CAMTC.
Twenty-four massage professionals were hosted:at the December 17, 2012 meeting, twenty-one
at the December 20;.2012 f eeting;and-fenat..the January'1-7„2013.meeting. The primary areas
of concern from meeting participants included additional time to come into compliance with the
proposed`ordinance; financial impacts additional education; clothing requirements; and the
need for atertificate from a physician attesting to thegood health of a massage professional.
In almostall conversations with the°massageprofessional community,support-was found for the
proposed regulations,:and in particular with the CAMTC certification. CAMTC certification was
viewed as a best practice for the industiy,::and recognized as good for;the business=community.
and for the consumer: Some massage'professionals who aretnot presently CAMTC certified
expressed concern;over the additional;cost of the hours needed'to meet certification and the
length of time available to;complete,the,training. In response..to these concerns the proposed
ordinance allows massage establishments and professionals two years to,come into compliance.
The grace period for compliance would expire two years from the adoption of this ordinance.
As to the continuing education opportunities there are schoolstlocated in Petaluma and in
Sonoma County to meet the training need. Training cost estimates typically range between
$12.00 - $20.00 per educational One localprovider has;expressed interest in providing no
cost continuing-education units to meet needs of local professionals.
If the ordinance is approved, the Police Departmentwill.conduct.additional outreach with the.
affected businesses and the larger;businesscominunity to facilitate a smooth implementation.
In response to City Council and community input staff amended the draft ordnance in the
following key areas:
A) Updated the ordinance'title;and all references to:-those employed in the profession to
Massage.Professionals.
B) Section 8.38.040,was arnendedfrom a 90 day effective date to a two year grace period for
compliance with the proposed ordinance.
C) Sections 8.38.050 and 8:38.060 were;amended-to reflect CAMTC certification for both
massage professional's.and establishinents as the onlycertification requirement. This also
eliminated any medical exam or physicians certification:
D) Sections 8.38.070, 8.38.080, 8.38.090 dealing with permit;fee§, issuance and renewal
were eliminated because the City will not be issuingspermits.
E) Sections 8.38.200 and 8.38.210 dealing with the suspension and revocation of permits
were eliminated because the City will not be issuing°permits.
The adoption of this;ordinance will help to,reduce a negative-image'of these businesses for some
in the community, as well as discourage the illicit acts associated with prostitution and human
trafficking This ordinance will.reduce the:number of complaints, discourage prostitution and
allow the Police:Department to focus on other quality of life-issues,in.our community. Staff
recommends that thetCity Council introduce the attached oi'dinance'whicli'.would update the
City's Municipal Code:
The implementation,ofthis ordinance will support the 2012-2013 Council goals under the
Healthy Development; Sustamability, and Economic Development Category.
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FINANCIAL IMPACTS
It is expected that the financial impact for:implementation and administration of this program
will be revenue neutral. The Police DeparttneiMand the Neighborhood=Preservation Coordinator
can complete inspections as part ofaheir daily assignments and;adrninistrative citations for non-
compliance will generate revenue to help cover the costs for inspection and enforcement.
ATTACHMENTS
1. Ordinance
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA
ADDING CHAPTER 8.38, "MASSAGE ESTABLISHMENTS AND MASSAGE
PROFESSIONALS" TO THE CITY OF PETALUMA MUNICIPAL CODE
WHEREAS, this chapter is intended to provide for the orderly regulation of persons and
establishments engaged in massage therapy, while recognizing the practice of massage therapy
as a valid professional field; and
WHEREAS, in September-2008, the State of California adopted Senate Bill 731 (SB
731) codified in Business and Professions Code`§§ 4600 et seq., creating a voluntary certification
program for massage professionals who meet certain educational requirements; and
WHEREAS, the California'Massage Therapy Council ("CAMTC") began issuing
certificates on September 1, 2009; and
WHEREAS, qualified applicants that receive a+certificate=from the CAMTC and
massage establishment applicants that employ only massage professionals who have received
certificates from the CAMTC are entitled to practice massage therapy throughout the State
without having to comply with local government regulation not applicable to other types of
licensed professional services practitioners; and
WHEREAS, certain massage professionals and massage establishments within the City
of Petaluma have not obtained certification from the CAMTC;,and
WHEREAS, by enacting Chapter 8.38,the City/Council does not intend to regulate any
area,preempted by state law, including but not limited to, Chapter 10.5 (commencing with
Section 4600 ) of Division 2 of the California Business and Professions Code.
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
PETALUMA AS FOLLOWS:
Section 1. Chapter 8:38, "Massage Establishments and Massage Professionals" is hereby added
to the Petaluma Municipal Code,'to read in full as follows:
Chapter 8.38 MASSAGE ESTABLISHMENTS AND;MASSAGE PROFESSIONALS
8.38.010 Purpose,and intent
It is the purpose and intent of the city council that the operation of massage,establishments and
massage professtonals,as defined in this chapterjshould be regulated so as to further the public
interest, safety, and welfare by establishing minimum building, sanitation, and health standards
for massage establishments and minimum qualifications for massage professionals.
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8.38.020 Definitions.
For the purpose of this'chapter, the following words andthrases shall mean or include:
A. "California Massage Therapy Council" or"CAMTC"means the non-profit organization
created pursuant to Chapter 10.5 of the Business and Professions Code and/or any subsequent
amendment or superseding statute,'and/or any successor organization.
B. "Certificate" or."CAMTC certificate" means:a certificate, or conditional certificate, issued by
the CAMTC to Massage Therapists, pursuant to California Business and Professions Code
Section 4601(c), and/or to Massage Practitioners pursuant to subdivision 4601(b), or 4604(a),
or 4604(c), and/or certificates issued pursuant to Chapter 10.5 of the Business and
Professions Code. When used`.in this chapter, "CAMTC:certification"means having a valid
CAMTC certificate.
C. "Certified massage establishment" means a massage-establishment,that employs or uses only
massage professionals with.CAMTC certification,to;perform massage services. Unless
otherwise stated, "certified massage;establishment" includes certified sole proprietorships.
D. "Certified sole proprietorship"means a sole proprietorship where the owner has received
CAMTC certification and-is the only provider of massage services,for that business.
E. "Health officer" means the health officer of Sonoma County or his/her authorized
representative.
F. "Massage" means the method of treating theisuperficial parts of the body, excluding
specified anatomical areas, for medical or hygienic purposes by rubbing; pressing, stroking,
kneading, tapping, pounding, vibrating, or stimulating withfthe hands or other parts of the
body, with or without the aid of any mechanical or electrical apparatus or appliance
commonly used in the practice of massage, and with or without supplementary aids such as
rubbing alcohol, oils,powders,creams, lotions, ointment, or other similar preparations
commonly used inthe;practice of massage. Massage includes such manipulation of the body
or similar procedures described in this paragraph that are performed in hydrotherapy, spa or
similar bath facilities.
G. "Massage establishment" means a business conducted by any individual, firm,association,
partnership;corporation or combination,of individuals which provides or offers massage in
exchange for-money or other consideration.
H. "Massage;-professional" means any person Who administers massage:to,another person, for
any form of consideration or pecuniary compensation.
I. "Specified anatomical area'-' means human genitals, pubic region, anus or female breast
below a.point immediately above the areola.
I "Specified sexual;activities"means any of the following:
'1. Fondling or other erotic touching of a specified anatomical area.
2. Sex acts; actual or simulated including but not limited to intercourse, oral copulation,
masturbation or sodomy.
3. Excretory functions as part of or in connection with the activities specified in this section.
8.38.030 Exemptions.
The provisions of this chapter shall not apply to the establislunents'and'individuals listed below
while engaged in the'performance'of the duties of their respective licensed or certificated
professions:
A. Physicians, surgeons, chiropractors, osteopaths, nurses or physical therapists who are duly
licensed to practice their respective professions in the state:
B. Hospitals, nursing homes, sanitariums, or person holding;an inrevoked certificate to practice
in the healing arts under the laws of the.State of California, or persons working under the
direction of any such persons or in any-such establishments.
C. Barbers, cosmetologists, and°manicurists who are duly licensed under the laws of the state,
except that this exemption shall apply solely to the niassaging of the neck, face, scalp, hair,
hands or feet of the-customer or client.
D. Teachers or students enrolled in a school, as'defined in the Implementing Zoning Ordinance,
and participating in the teaching and/or administration of massage by authorized school
employees in conjunction with athletic programs, training in the healing arts or other school
courses.
8!38.040 Massage professionals and massage establishments operating in the city on the
effective date of this chapter—two year grace period:
A. Any massage professional providing massage in the city as of the effective date of this
chapter may continue such-practiceforta period of time-not to exceed two years from the
effective date of this ordinance: On and after two-years.from the effective date of this
chapter, all massage professionals providingmassage in the city must have a valid CAMTC
certificate as a massage practitioneror massage therapist or be subject to penalties specified
in this chapter arid'other'applicable laws.
B. Any massage establishment operating in the city as,of the effective date of this chapter may
continue to employ, contract with or provide massage services'by non-CAMTC certified
massage professionals for a period of time not to exceed two years-from-the effective date of
this ordinance, anti only leach such non-CAMTC certified massage professional was
providing:massage service§ in the city as of the effective date of.this'ordinance. On or after .
two'years from the effective date of this chapter, any massage-establishment operating in the
city may employ, contract-with or provide massage services only by massage practitioners or
therapists who are CAMTC certified, or be subject to penalties specified in this chapter and
other applicable laws.
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'8.38.050 Massage professional -- certification required.
A. Except as provided in Section,8.38.040„it is un1awfuhfor any person subject to the.
requirements of this chapter to provide massage services or practice:massage within the city
unless they have a valid, unexpired and unreyoked CAMTC certificate as massage
practitioner or massage therapist.
B. Every massage,professional, except a massage professional who'practices massage only as
an employee of .massage establishment, shall also obtain a business license from the city
pursuant to Chapter;6.01.of this.code.
C. Every massage;professional,except;a massage professional who practices massage only as
an employee of a massage establishment, shall provide to;the city manager or his/her
designee at the time of application for or renewal of,a business license a copy of his or her
valid, unexpired CAMTC certificate.
D. Every massage professional shall have continuous duty:to provide written notice to the city
if his or her CAMTC certificate is revoked of suspended.
8.38.060 Massage establishment- CAMTC certification required.
A. Except as provided in Section 8.38.040, it istnlawfulforany owner or operator of a massage
establishment to engage in, Conduct or'carry on, or to permit to-be engaged in, conducted or
carried on, the operation of a massage establishment in or upon any premises within the city
unless all persons providing massage in any way connected with the massage establishment,
whether on the massage establishment premises or otherwise, have a valid CAMTC
certificate as a massage.practitioner or massage therapist=and_maintain said certification
during all times in which massage is provided by that person.
B. Every owner or operator of a massage establishment shall also obtain a business license from
the city pursuant to Chapter 6.01 of this code. Massage establishments and massage sole
practitioners shall also Obtainranyland use entitled-tents required to practice massage in their
respective locations under the laws of the City of Petaluma, including but not limited to the
city's zoning ordinance.
C. An owner or operator who'intends to operate a certified'massage establishment--in the city
shall provide to city;manager or his/her designee, copies of the CAMTC certificates for each
person who will provide massage at or in connection with the:thassage.establishment and a
copy of a valid CAMTC certificate'for each such person. A certified sole proprietorship
providing massage in the city shall provide to the city manager or his/her designee a copy of
his/her valid CAMTC certificate at the time of application and/or renewal of a city business
license,.
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8.38.100 Annual registration by certified massage establishments and notification of
changes.
A. Every certified massage`establishment shall; at the time of application for and/or renewal of a
business'license shall provide to the city manager or his/her designee a complete list of all
persons providing massage at or in connection with ahe,massage establishment, whether on the
massage establishment premises or otherwise, and provide copies of CAMTC certificates for
each such person.
B. Within five (5)business days of any change in address or ownership of the massage
establishment every-massage:establishment.owner.or operator shall provide written notice of
those changes to the city manageror,his/her designee.
C. Within fifteen (15),business days of hiring a new massage professional, the owner or operator
shall provide a copy of the massage professional's CAMTC'certificate to the city manager or
his/her designee. The requirement to provide copies of CAMTC=certificates shall not
' eliminate the requirement to maintain evidence on the_premises of the massage establishment
that the massage professionalstmployed or retained'by the massage establishment-have
CAMTC certificates.
D. The massage establishment owner or operator shall have acontinuous duty to provide written
notice to the city when the massage establishment no longer employs, contracts with or uses
a CAMTC certificate holder to provide massage services, or if a CAMTC certificate is
revoked or suspended.
8'38.130 Massage establishment:operation.
Every massage establishment shall comply with;the following operating requirements:
A. The owner or operator of a massage establishment shall maintaina register of all persons
employed as massage professionals and copies of CAMTC certificates for each massage
professional. Such register shall be available for inspection at all times during regular
business hours.
B. The massage establishment shalFbe open only between the hours of seven a.m. and ten p.m.
C. A list of services available and-the:cost of such services shall be posted in an open, public
place on the premises and shall be describediin readily understandable language. No owner,
operator, responsible managing nianager,.or'permittee shall permit and no
massage professional shall to perform any services:other"than those posted.
D. All persons shall be clean and wear clean and sanitary outer garments at all times. All outer
garments shall be of'a fully opaque, non transparent material'and provide complete covering
of the torso to mid-thigh
E. During all times:that he/she is performing or;offering to perform massage services in a
massage establishment, every massage professional shall wear a badge that identifies his/her
first or last name: Uponreceipt of request or complaintby_a patron,the massage
professionaLshall.advi'se the patron of the full name of the massage establishment through
which the massage services Were obtained and contact inforMationfor.the CAMTC.
F. No person shall enter; be or remain; in anypart of a-massage establishment while in
possession, consuming, or using any alcoholic beverage or'drugs'except pursuant to a
lawfully issued prescription for such drugs. The,owner, operator,;responsible;nianaging
employee, manager or permittee shall not permit any such personto`enter or remain upon
such premises.
Q. No massage professional shall offer or engage in specified sexual activities as part of his/her
massage services. No massage establishment shall offeror permit specified sexual,activities
as part of massage services provided by the massage establishment or on the massage
establishment premises.
838.140 Sanitation and safety requketnents.
The requirements of thissection;are reasonable health and safety requirements for massage
establishments and massage professionals'and shall apply to all massage establishments and
massage professional's in the City,,including certified massage establishments, certified massage
practitioners and certified massage therapists, unless otherwise specified.
A. All-massage establishments shall be subject to-periodic-inspection by the City for safety of
the structure and the propriety'of plumbing, ventilation, heating, and sanitation. Each room in
which massage is being administered shall be litwith'at least 40 watts of light. The walls
shall be clean and painted witfi an approved washable-mold"resistant-paint in all rooms where
water or steam baths are,given. Floors shall be free from'any accumulationsof dust, dirt, or
refuse.
B. Towels, sheets, linens;,robes,and all other items for personal useof operators-and patrons
shall be clean, freshly laundered'and;not reused for more than one patron. Heavy white paper
may be substituted for sheets,provided that-such paper is used once for every person and
then-discarded into.a sanitary receptacle.
C. All locker facilities provided for the use of patrons shall be fully secured for the protection of
the patron's valuables, and the patron shall be given control of the key or other means of
access.
D. All main external front,entrance"d'oors,into the massage establishment and all internal doors
leading to massage areas shall remain unlocked during the.business hours of the massage
establishment unless there is no staff available to,assure security for clients and massage
professionals who are behind closed doors.
8.38:150 Inspectioh.by city officials.
The investigating offrcials:of the city, including the Sonoma County Health Officer, shall have
the right to enter thepremises^from_ time to time;during regular business hours for the purpose of
making reasonable:inspections to enforce,compliance with this chapter, or other building, fire,
electrical, plumbing, health,:dr penal;regulations. A warrant shall be obtained whenever required
by law.
8.38:180:Prohibited,AdvertisingPractices.
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It is a violation of this chapter for any person or massage establishment that;does-not have a valid
CAMTC certificate•or city permit to:
A. State or advertise, or putout any sign, card or other device, or represent to the public through
any print or electronic media, that suchpeison or establishment is certified, registered, or
licensed to by a governmentalagency as a massage professional; or
B. Hold oneself out or use the title of"certified massage therapist," "certified massage
practitioner," or use any otherterm, such as "permitted," licensed," "registered," "CMT,"
or"CAMTC" that implies or suggests that such person is the holder of a CAMTC certificate
or a city massage permit..
8.38.190 Massage establish-
stablishment permittee responsibility for employee acts.
The massage establishment owner or operator shall be responsible for the conduct of all
employees, contractors, volunteers or persons who provide massage on the premises of or
through arrangements with the,massage establishment. All persons working in or for the
massage establishment shall be considered under the control of the massage establishment for the
purposes of this chapter, including independent contractors-and unpaid volunteers. Any act or
omission of such person constituting:a violation of this chapter shall be deemed to be the act or
omission of the massage establishintent for purposes of enforcing this chapter.
8.38.220 Changes in law.
When reference is made in this chapter to any local law.or regulation, or to any State or federal
statute, regulation or other law,,such reference shall include any subsequent amendment or
superseding provision thereto.
8i38.230 Enforcement and remedies
Any violation of this chapter shall be and is hereby declared to be, unlawful and a public
nuisance, and provisions of this chapter shall be enforceable pursuant to chapters 1.10 through
1.16 of this code, or by any other.judicial and administrative penalties and remedies available to
the city under applicable local, State or;federal law. In addition to all other legal remedies
provided for in this code, the operation of any massage establishment and/or the provision of
massage by any person in violation of the terms of this chapter'shallbe deemed.a public nuisance
and may,be enjoined by the City. Each instance of a violation of this chapter, including each day
of a continuing violation by a:Massage establislnnent or massage pr'ofessional,,shall constitute a
separate violation. The remedies provided by this chapter are not intended to preclude any other
remedy available at law or in equity.
Section 2. The.CityCouncil finds that adoptiontof this ordinance:is exempt from the California
Environmental'Quality Act ("CEQA"), pursuant to Sections 15061(b)(3)of the CEQA Guidelines
(Title 14, Chapter.3 of the California Code.of Regulations) because:there is no possibility that
the activity may havea:significant impact on the environment.
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Section 3. If any section, subsection, sentence, clause, phrase,or word of this ordinance is for
any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent
jurisdiction or preempted by state legislation, such decision or legislation shall not affect the
validity of the remaining portions of this ordinance. The City Council of the City of Petaluma
hereby declares that it would have passed and adopted this ordinance and each and all provisions
thereof irrespective of the fact that any one or more of said provisions be declared
unconstitutional, unlawful orotheriuise invalid.
Section 4. This ordinance shall become effective thirty (30) days after the date of its adoption by
the Petaluma City Council, and upon the posting of all signs required by California Vehicle Code
Section 21103.
Section 5. The City Clerk is hereby directed to publish or post this ordinance or a synopsis for
the period and in the manner provided by the City Charter and any other applicable law.
INTRODUCED and ordered posted/published this day of , 2013.
ADOPTED this day of 2013 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
David Glass, Mayor
ATTEST: APPROVED AS TO FORM:
Claire Cooper, City Clerk Eric Danly, City Attorney
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