This chapter may be cited as the "Lemon Grove Massage Therapy
Business License Ordinance."
(Ord. 464 § 2, 2023)
The purpose of this chapter is to implement local regulatory
requirements, within the authority of the city of Lemon Grove, under
the general laws of the state of California, to the fullest extent
that local zoning, business licensing, police power and reasonable
health and safety regulations are allowed in order to protect the
public health, safety and welfare and prevent the facilitation of
human trafficking and prostitution.
(Ord. 464 § 2, 2023)
This chapter shall be construed liberally in order to effectuate
its purposes. Unless otherwise specifically prescribed in this chapter
the following provisions shall govern its interpretation and construction:
A. When
not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular
number and words in the singular number include the plural number.
B. All
references herein, as applied to natural persons, shall be considered
gender neutral.
C. Any
right or power conferred or duty imposed upon any officer, employee,
department or board of the city is subject to transfer by operation
of law to any other officer, employee, department or board of the
city. Any officer or enforcement person referenced herein shall have
the authority to delegate enforcement duties in the manner allowed
by procedures established by the city manager or designee.
D. No license
or permit holder shall have any recourse whatsoever against the city
for any loss, cost, expense or damage arising out of any provision
or requirement of this chapter or the enforcement thereof.
E. This
chapter does not relieve any license or permit holder of any requirement
of any ordinance, rule, regulation or specification of city or other
regulatory body. This chapter does not limit applicable health and
safety laws or regulations established by the county of San Diego
or the state of California. All regulations of this chapter, unless
otherwise stated, apply to existing massage establishments within
the city.
F. This
chapter, to the extent that it retains requirements established prior
to January 1, 2010 related to the professionally recognized scope
of practice of healing arts professionals licensed under California
Business and Professions Code Section 500 et seq., shall remain in
full force and effect.
(Ord. 464 § 2, 2023)
Any rules and regulations included in the Massage Therapy Act under California
Business and Professions Code Section 4600, et seq., which impose restrictions greater than those imposed by this chapter are adopted and shall be applicable to the city, the violation of which are subject to enforcement by the departments, officers, employees and agents of the city in the same manner as provided for in Chapter
1.12 of this municipal code.
(Ord. 464 § 2, 2023)
For the purposes of this chapter, the words or phrases set forth
in this section shall have the following meanings:
"Building inspection"
means the building inspection component of the Lemon Grove
development services department.
"City"
means the city of Lemon Grove, California.
"County"
means the county of San Diego, a political subdivision of
the state of California.
"Independent contractor"
means a massage therapist or massage practitioner who is
not an employee of a massage establishment, but practices at the massage
establishment as defined in applicable state law.
"License"
means the business license to operate a massage therapy business
as required by this chapter.
"Massage"
means the scientific manipulation of soft tissues or any
method of pressure on, or friction against, or stroking, kneading,
rubbing, tapping, pounding, vibrating, or stimulating of the external
parts of the body with the hands or other parts of the body, with
or without the aid of any mechanical or electrical apparatus or appliances
or with or without such supplementary aids as rubbing alcohol, liniments,
antiseptic, oils, powder, creams, lotions, ointments, or other preparations
commonly used in this practice. "Massage" expressly does not include
the touching of "specified anatomical areas," as that term is defined
in this Chapter. For the purpose of this chapter, "massage" and "bodywork"
shall have the same meaning.
"Massage accessory use"
means any establishment having a fixed place of business
where massage services are supportive, incidental, and customarily
associated with the principal, permitted land use, and the area where
the massage occurs covers less than twenty percent of the gross floor
area of the principal use. All persons performing massage shall possess
a current, valid and authentic certificate issued by the California
Massage Therapy Council. Massage accessory use shall not be classified
as a massage establishment and shall not be required to obtain a massage
establishment license under this chapter, but shall be subject to
all other applicable provisions of this chapter.
"Operator"
means any person who supervises, manages, directs, organizes,
controls, or in any other way is responsible for or in charge of the
daily operations, conduct or activities of a massage establishment.
"Outcall massage"
means the act of performing massage at any location other
than an approved, fixed place of business or the massage therapist's
own residence where the massage therapist travels to the location
of the client to provide services. For purposes of this definition,
the term "off-premises massage" or any other terms used with the massage
industry shall have the same meaning.
"Owner"
means any of the following:
1.
The sole practitioner of a sole proprietorship that owns a massage
establishment;
2.
Any general partner of a general or limited partnership that
owns a massage establishment;
3.
Any person who has five percent or greater ownership interest
in a corporation that owns a massage establishment;
4.
Any person who is a member of a limited liability company that
owns a massage establishment;
5.
All persons who own any other type of business entity that owns
a massage establishment; or
6.
Any person identified as an owner on a massage establishment
license or any other license, permit, or entitlement issued by the
city to operate a massage establishment.
"Permit"
means the business license permit to engage in the massage
establishment regulated by this chapter.
"Person"
means a natural person, firm, partnership, association, corporation
or other legal entity. Nothing herein confers rights to a firm, partnership,
association, corporation or other legal entity to receive a certification
under California
Business and Professions Code Section 4604 or 4604.2.
"Sole practitioner"
means a massage business where the owner owns one hundred
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 the California Massage Therapy
Act, and has no other employees or independent contractors.
"Specified anatomical areas"
means any of the following areas of the human body: pubic
region, human genitals, perineum, anal region, and the areas of the
female breasts that include the areola and the nipple.
(Ord. 464 § 2, 2023)
To the extent they are applicable, the provisions of Title
5 (Business Taxes, Licenses, Permits and Regulations) govern the businesses authorized under this chapter.
(Ord. 464 § 2, 2023)
No person, association, partnership, or corporation may engage
in, conduct or carry on, or permit to be engaged in, conducted or
carried on the operation of a massage establishment unless each and
all of the following requirements are met:
A. Massage
services may only be conducted, and the premises may only be open
to customers, between the hours of nine a.m. and nine p.m.
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. The service
shall be described in readily understandable language in English and
may also then be described in any other language. No owner, operator,
responsible managing employee, manager, permittee, or licensee in
charge of or in control of the massage establishment shall permit
and no massage therapist shall offer or perform, any service other
than those posted.
C. The
massage establishment business license and a copy of the permit of
each and every massage therapist employed by or working in the establishment
must be displayed in an open and conspicuous public place on the premises.
This subdivision shall not apply to outcall massage businesses.
D. Hot
and cold running water under pressure shall be provided to all washbasins,
bathtubs, showers, and similar equipment. Each washbasin shall be
provided with soap or detergent and sanitary towels placed in permanently
installed dispensers. A trash receptacle shall be provided in each
toilet room. This subdivision shall not apply to outcall massage businesses.
E. Clean
and sanitary towels, sheets and linens shall be provided for each
patron receiving massage services. No common use of towels or linens
shall be permitted, and reuse is prohibited unless they have been
first laundered. Heavy white paper may be substituted for sheets,
provided that such paper is used once for each person and then discarded
into a sanitary receptacle.
F. Disinfecting
agents and sterilizing equipment shall be available for any instruments
used in performing any massage. Instruments will be disinfected or
sterilized after each use.
G. Pads
used on massage tables shall be covered in a workmanlike manner with
durable, washable plastic or other waterproof material.
H. Each
establishment shall provide to all patrons clean, sanitary, and opaque
coverings capable of covering the patron's specified anatomical areas.
Such coverings shall be used for one customer only and shall not be
reused without first being cleaned.
I. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage establishment shall permit a massage to be given unless the patron's specified anatomical areas are covered during the entire massage by the covering referred to in subsection
(H).
J. With
the exception of bathrooms or dressing rooms not open to public view,
no person or persons shall be permitted in any area within the massage
establishment which is used in common by the patrons or which can
be viewed by patrons from such an area, unless the specified anatomical
areas of all persons within that area are fully covered.
K. It is
unlawful for an owner, operator, responsible managing employee, manager,
permittee in charge of or in control of a massage establishment to
permit any person or any massage therapist to perform any service
or task while in the presence of a patron or to be on the premises
of a massage establishment during its hours of operation unless the
massage therapist is dressed in a manner that does not violate paragraph
(10) of subdivision (a) of Section 4609 of the California Business
and Professions Code.
L. Any
person performing services as a massage therapist must wear a visible
California Massage Therapy Council identification card and have a
copy of their driver's license or any other photo identification card
issued by a state or federal agency readily available for inspection
by city or county investigating officials.
M. An owner,
operator, or responsible managing employee that has been approved
by the city and passed a background check must be on the business
premises at all times during hours of operation of the business.
N. For
each massage service provided, every massage establishment shall keep
a complete and legible written record of the following information:
the date and hour that service was provided; the service received;
the name or initials of the employee entering the information; and
the name of the massage practitioner administering the service. Such
records shall be open to inspection and copying by law enforcement
or designee, or may be used by any massage practitioner or operator
as records of service provided, but may not be provided to other parties
by the massage practitioner or operator unless otherwise required
by law. Such records shall be retained on the premises of the massage
establishment for a period of two years and be immediately available
for inspection during business hours.
O. No existing
massage establishment located in a building or structure with exterior
windows fronting a public street, highway, walkway or parking area
shall block during business hours visibility into the interior reception
and or waiting areas through the use of curtains, closed blinds, tints,
posters, advertisements, photos, signs or any other material that
obstructs, blurs, darkens or unreasonably darkens obstructs the view
into the premises. This subdivision shall not apply to outcall massage
businesses. Existing massage establishments with exterior windows
fronting a public street, highway, walkway, or parking area as of
January 4, 2024 shall not modify such windows that substantially reduces
or changes their size, shape, or square footage. No exterior windows
fronting a public street, highway, walkway or parking area that existed
prior to a massage establishment commencing operations after January
4, 2024 shall be modified in any way that substantially reduces or
changes their size, shape, or square footage.
P. All
signs shall be in accordance with the current ordinances of the city
of Lemon Grove.
(Ord. 464 § 2, 2023)
In addition to the conduct, activities, items, and/or substances
prohibited by federal, state, and local laws, the following conduct
is prohibited at massage establishments or in the course of providing
massage services:
A. The
sale, service, or consumption of alcohol or marijuana; and
B. Audio
and/or video recording of, or monitoring of, the patron or massage
therapist while providing massage services without the prior written
consent of both the patron and the massage therapist; and
C. Residing
in or at the massage establishment by any person including, but not
limited to, the operator, owner, responsible person, or employee of
the massage establishment; and
D. Advertising
or marketing illegal activity, advertising or marketing sexual content
related to massage therapy, or advertising or marketing sexual content
in the promotion of the massage establishment; and
E. Use
or possession of adult-oriented merchandise, including "sex toys"
and/or condoms, in any part of a massage establishment; and
F. Any
sexual activity at a massage establishment; and
G. No owner,
operator, responsible managing employee, manager, permittee, or licensee
in charge of or in control of a massage establishment shall permit
any person to massage or intentionally touch the specified anatomical
areas of another person while performing the services of a massage
therapist.
(Ord. 464 § 2, 2023)
It is unlawful for any person to engage in, conduct, carry on,
or permit to be engaged in, conducted or carried on, massage, for
any form of consideration, in any hotel room, motel room, guesthouse,
home-sharing rental or other place of public accommodation. This section
shall not be construed to prohibit:
A. Maintaining
a licensed massage establishment upon the premises of a place of public
accommodation;
B. Conducting
massage services as a vendor at a festival, farmers market, or other
event of limited or temporary duration; or
C. The
holder of a massage practitioner certification issued by the California
Massage Therapy Council pursuant to Chapter 10.5 of the California
Business and Professions Code from giving or administering massages
within hospitals, convalescent centers, rest homes, offices, or the
private home of a patron. For the purposes of this section, offices
and private homes shall not include hotel rooms or motel rooms.
(Ord. 464 § 2, 2023)
The provisions of this chapter shall be applicable to all persons
and businesses described in this chapter whether the described activities
in the chapter were established before or after the effective date
of this chapter. Any existing massage therapist who performs massage
and any massage establishment that employs or utilizes persons to
perform massage within the jurisdiction of the city, that operates
with a valid and current business license issued by the city and all
other necessary approvals issued prior to the effective date of any
amended regulations in this chapter, and that operates in compliance
with all local, state, and federal laws, ordinances, rules and regulations,
must be in full compliance with this chapter no later than sixty days
following the effective date of any new regulations.
(Ord. 464 § 2, 2023)
This chapter shall not apply to:
A. Physicians,
surgeons, chiropractors, osteopaths, psychiatrists, psychologists,
acupuncturists, physical therapists, family counselors or other health
care professionals who are licensed to practice their respective professions
by the state of California or who are permitted to practice temporarily
under the auspices of an associate or establishment duly licensed
by the state of California, pursuant to the Business and Professions
Code;
B. Nurses
and other health care professionals who are registered or licensed
under the laws of this state and administer a massage in the normal
course of professional health care duties;
C. A trainer
of any duly constituted athletic team or athlete who administers massage
in the normal course of training duties to the team or athlete;
D. Barbers,
cosmetologists, and estheticians duly licensed under the laws of the
state who administer a massage incidental to a barber or beauty service
provided in the normal performance of their profession. This exemption
shall apply only if massage is provided from a fixed and permanent
location of business;
E. Therapeutic
massage administered in or under the auspices of any health facility,
hospital or other establishment licensed under California statutes
in which the above-described persons practice their respective professions,
provided the massages are given only by exempt individuals or persons
acting under their supervision;
F. Any
bona fide athletic club which offers tennis, racquetball, swimming
or other sport activities and possesses a sauna or steam room. Massage
shall only be administered to members of the athletic club by persons
who are exempt under this section.
(Ord. 464 § 2, 2023)
The city, county, or any investigating official shall have the
right to enter the premises of the massage establishment from time
to time during regular business hours, with or without advance notice,
to conduct reasonable inspections to enforce compliance with this
chapter and with building, fire, electrical, plumbing, and/or state
and local health and safety regulations.
No person shall refuse to permit or interfere with a lawful
inspection of any portion of the massage establishment by city or
county investigating officials.
(Ord. 464 § 2, 2023)
Any massage establishment operated, conducted, or maintained
contrary to the provisions of this chapter and/or state and federal
laws shall be and the same is hereby declared to be unlawful and a
public nuisance. The city attorney may, in addition to or in lieu
of prosecuting a criminal action hereunder, commence an action or
actions, proceeding or proceedings for the abatement, removal, or
enjoinment thereof, in any manner provided by law.
(Ord. 464 § 2, 2023)