Staff Report
PREPARED BY: Robert Schultz, Town Attorney
Reviewed by: Town Manager Assistant Town Manager Finance
MEETING DATE: 10/18/2016
ITEM NO: 8
COUNCIL AGENDA REPORT
DATE: October 27, 2016
TO: MAYOR AND TOWN COUNCIL
FROM: ROBERT SCHULTZ, TOWN ATTORNEY
SUBJECT: ADOPT AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF
LOS GATOS AMENDING TOWN CODE CHAPTER 14 ARTICLE XI. -
MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE THERAPY
PRACTIONERS
RECOMMENDATION:
Staff recommends that Town Council accept public comment and then move for introduction and
first reading of an Ordinance, by title only, amending Chapter 14 Article XI to the Los Gatos
Town Code.
INTRODUCTION:
In 2008, the State signed into law the Massage Therapy Law, creating a statewide system for
issuing massage worker permits and shifted government regulation from local governments to
the CAMTC. The Massage Therapy law preempted most local land use, zoning and operational
regulations relating to massage therapists and practitioners certified by the CAMTC and massage
establishments that exclusively employ certified massage therapists and practitioners.
Recently, the law changed to allow more local regulation by authorizing the Town to adopt and
enforce zoning regulations specific to massage establishments that do not necessarily apply to all
other licensed professionals.
BACKGROUND:
Prior to 2008, California was among a minority of states that did not have state standards
concerning the education, training and licensing of massage professionals and the businesses in
which they practice. Regulation in this area was left to local governments. In 2008, the
Legislature adopted legislation that created the California Massage Therapy Council
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE MASSAGE REGULATIONS
OCTOBER 27, 2016
BACKGROUND (Cont’d):
(“CAMTC”), a nonprofit organization responsible for issuing certificates to massage therapists
and disciplining them for unlawful acts such as prostitution.
In 2009, in response to the passage of the State Massage Therapy Law, the Town made extensive
revisions and amendments to the Town Code relating to Massage Therapy and Establishments.
In 2013 and 2014, elected officials across California relayed a message to the League of
California Cities about one of the challenges facing cities: the inability to regulate the massage
industry and the resulting increase of illicit establishments. Towns and Cities worked with their
Legislators to craft legislation that would return local authority to cities to regulate massage
businesses and give cities the tools to shut down businesses violating local ordinances.
In 2015, the State restored the ability of towns and cities to impose local regulations on massage
establishments and practitioners as a result of the new provisions of Assembly Bill 1147. This
legislation allows local governments to use their regulatory and land use authority, as is the case
with other businesses, to ensure the public’s safety, reduce criminal activity, and enforce local
standards for the operation of the business of massage therapy. Under AB 1147, cities are able to
regulate the business that provides the massage therapy services and the California Massage
Therapy Council will be responsible for regulating those individuals who apply or have a
certification to provide massage therapy services. Since the provisions of AB 1147 established a
sunset provision in 2017, Staff decided not to bring any revisions to the Town Code to the Town
Council.
In 2016, AB 2194 extended the provisions of AB 1147 until 2021, and made other changes that
now require the Town to implement certain requires in the Town Code. Generally, AB 1147
divides responsibility for massage regulation between CAMTC, which regulates the practice of
massage and certifies individual massage therapists, and towns, cities and counties, which are
free to regulate the business of providing massage through land use and business licensing
requirements.
AB 1147 has more rigorous certification requirements for new massage professional applicants,
and imposes greater statewide regulations on all certified massage therapists, including
prohibitions from engaging in sex-related acts, sexually suggestive advertising, or wearing
unacceptable attire. CAMTC must deny a certification application for, or revoke the certification
of, anyone required to register as a sex offender.
Under Assembly Bill 1147, a town or city may not prohibit a CAMTC certified therapist from
engaging in massage or using CAMTC recognized massage techniques. The certification of
massage therapists is regulated by CAMTC and a town city does not have the authority to revoke
a therapist’s certification. AB 1147 does not regulate non-certified massage therapists, so towns
and cities are still unrestricted in regulating them.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE MASSAGE REGULATIONS
OCTOBER 27, 2016
BACKGROUND (Cont’d):
AB 1147 restores much of local government’s authority to regulate massage establishments by
recognizing various grants of authority to cities and counties to adopt land use and business
regulations, including the police power in Article XI, section 7 of the California Constitution.
(See new Gov. Code § 51034.) AB 1147 lists specific ways cities may not regulate massage
establishments, but cities are otherwise free to regulate these establishments.
Under Assembly Bill 1147, a town or city may not define or regulate massage establishments as
adult entertainment businesses or otherwise regulate a massage establishment as adult
entertainment. A town or city may not require such establishments to post any notice in an area
that may be viewed by clients that contains explicit language describing sexual acts or mentions
genitalia or specific contraception devices. A town or city may not impose more stringent client
draping rules than what the statutes require. Regarding facilities, a town or city may not obligate
a massage establishment to have internal physical structures, such as windows looking into
massage rooms or walls that do not extend from the floor to the ceiling and a town or city may
not prevent a one-person business from locking its external doors. Other than these specific
limitations, towns and cities may impose other regulations on massage establishments.
DISCUSSION
The Town Attorney's Office has drafted an ordinance to amend portions of Chapter 14, Article
XI to ensure the future health, safety, and general welfare of the town's citizens. Attachment 1 is
a redline of the Town’s current ordinance with the proposed amendments and Attachment 2 is
the proposed amended Ordinance. The amended Ordinance ensures CAMTC therapists are
regulated to the greatest extent possible by requiring Massage Establishment Licenses.
The Massage Establishment Permit applicant must pass a background check, and meet the
conditions and requirements of the Ordinance. The Chief of Police would make the final decision
on the Massage Establishment Permit. Massage establishment permits would be 12 months in
duration unless suspended or revoked earlier based on the grounds listed in the ordinance.
The Massage Establishment Permit holders will be responsible for the massage establishment
business: any act or omission of anyone providing massage at the establishment’s location,
whether as an employee or an independent contractor, which constitutes a violation of the
Ordinance, would be deemed an act or omission of the massage establishment.
Massage establishments will also have to comply with portions of the Massage Therapy Act
relating to display of CAMTC certifications, sexual activity, sexually suggestive advertising, and
clothing requirements. The inclusion of these requirements is permitted because it does not
conflict with the Massage Therapy Act as provided under AB 1147. The revised Ordinance
would require massage establishments to close and massage therapist services to cease by 10:00
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE MASSAGE REGULATIONS
OCTOBER 27, 2016
DICUSSION (Cont’d):
p.m. The Ordinance also includes various minor changes as well as updates to state statutory
references.
Massage establishments would be required to obtain a police permit after the effective date of the
ordinance. Any massage establishment registration previously issued would become void after
the effective date of the Ordinance, unless an application for a massage establishment permit is
submitted, in which case the registration will continue in effect until a decision is rendered on the
application. Owners of massage establishment businesses must also obtain a use permit when
required under the zoning ordinance.
FISCAL IMPACT
This Ordinance involves administrative costs of issuing massage establishment permits, but those
costs may be recovered through fees the establishments will have to pay to obtain these permits.
A resolution establishing the cost recovery fee for a massage establishment permit will be
brought before the Town Council in 2017. Thus, no fiscal impact is expected.
ALTERNATIVES
1. Introduce the proposed Ordinance with modifications.
2. Provide further direction to staff pertaining to the proposed Ordinance and continue
consideration to a subsequent Town Council meeting.
3. Do not introduce the proposed Ordinance.
ENVIRONMENTAL ASSESSMENT:
It has been determined that there is no possibility that this project will have a significant impact
on the environment; therefore, the project is not subject to the California Environmental Quality
Act (Section 15061 (b) (3)).
Attachments:
1. Redline of current Ordinance
2. Propose amended Ordinance
Page 1
ARTICLE XI. - MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE THERAPY
PRACTIONERS
Sec. 14.110.014. - Purpose and intent.
Sec. 14.110.015. - Definitions.
Sec. 14.110.020. - Exemptions.
Sec. 14.110.025. - Permit/certification requirements for massage establishments, massage
therapists.
Sec. 14.110.030. - Educational requirements for massage therapists.
Sec. 14.110.035. - Applications for mMassage therapist Establisment pPermits.
Sec. 14.110.040. - Grant or denial of application for mMassage therapist Establsihmnet pPermit.
Sec. 14.110.045. - Business license.
Sec. 14.110.046 - Massage therapist and massage practitioner registration.
Sec. 14.110.047 - Notice of employees' status.
Sec. 14.110.050. - Operating requirements for massage establishments.
Sec. 14.110.055. - Sanitation requirements/condition of premises.
Sec. 14.110.060. - Prohibited acts.
Sec. 14.110.065. - Out-call massage services.
Sec. 14.110.070. - Transfer of mMassage therapist Establsihment permit.
Sec. 14.110.075. - Expiration and renewal of mMassage Establsihment therapist pPermit;
payment of renewal fee.
Sec. 14.110.080. - Suspension and revocation of mMassage therapist Etablsihmnet pPermit.
Sec. 14.110.085. - Criminal penalties.
Sec. 14.110.090. - Inspection by officials.
Sec. 14.110.095. - Massage establishment operated in violation of this article xi deemed a public
nuisance.
Sec. 14.110.100. - Application of this Article XI to pre-existing massage establishments and
persons holding valid massage therapist business licenses before effective date of this
chapter/one-year time period for holders of pre-existing business licenses to meet new
educational requirements.
Sec. 14.110.014. - Purpose and intent.
(a) Purpose.
(1) The Town of Los Gatos is authorized to regulate massage establishments pursuant to
Government Code Section 51030 et seq., Business and Professions Code Sections 460
and 4600 et seq. and Section 7 of Article XI of the California Constitution.
(21) In enacting these regulations, the Town of Los Gatos Town Council (hereafter referred
to as "Town Council") recognizes that massage is a viable professional healing art
offering the public valuable health and therapeutic services.
(32) It is the purpose and intent of the Town Council that the operation of Massage
Establishments and persons offering massage be regulated in the interests of public
health, safety, and welfare by providing minimum building, sanitation, and health
Attachment 1
Page 2
standards and to ensure that persons offering massage shall possess the minimum
qualifications necessary to operate such businesses and to perform such services
offered.
(43) It is the purpose and intent of this Article XI to articulate regulations to ensure that
persons offering massage services are qualified and trained and can be expected to
conduct their work in a lawful and professional manner.
(45) Specifically, the regulations in this Article are intended to reduce or prevent blight,
protect and preserve the quality of commercial and residential properties, protect and
preserve the quality of life in the Town of Los Gatos, deter criminal activity, enhance
enforcement of criminal statutes, and prevent commercial sexual exploitation and
human trafficking.
(b) Conflicts with other provisions of this Code. In the event of any conflicts or inconsistencies
between the provisions of this Article XI and the remaining provisions of this Chapter 14 or
with the provisions of any other chapter(s) of the Town Code, the provisions of this Article
XI shall control, unless to do so would be inconsistent with the stated purpose of this Article
XL. Any massage establishment is further regulated pursuant to Chapter 29 of this Code.
(c) Responsibility for enforcement. The primary responsibility for enforcement of the provisions
of this Article XI shall be vested in the Chief of Police.
Sec. 14.110.015. - Definitions.
For purposes of this Article XI, the following words, terms and phrases are defined as
follows:
California Massage Therapy Council (CAMTC). The governing non-profit board that is
authorized to evaluate qualifications of massage therapists and issue certification in the State of
California. There are two (2) levels of certification: CMT (Certified Massage Therapist) and
CMP (Certified Massage Practitioner). means the California Massage Therapy Council created
pursuant to Chapter 10.5 of Division 2 of the California Business and Professions Code.
Certified Massage Therapist or CMT means a person who holds a current and valid
CAMTC certification as a massage therapist.
Certified Massage Practitioner or CMP means a person who holds a current and valid
CAMTC certification as a massage practitioner.
For compensation means the exchange of massage for money, goods or services. An
establishment or person cannot avoid the requirements of this division by offering free massage
in conjunction with other services or goods provided for compensation.
Massage means any method of treating the external parts or surfaces of the human body by
bathing, rubbing, pressing, stroking, pounding, kneading, tapping, vibrating, or touching or
stimulating with the hands or any part of the body, or any instrument. or with the aid of any
mechanical or electrical apparatus or other appliances or devices, with or without the use of oils,
creams, tonics, lotions, antiseptics, tanning products, or other similar preparations. Massage shall
further include baths, aromatherapy, vapor, shower, electric tub, sponge, hot towels, sauna,
Page 3
steam, or any other type of bathing activity where the essential nature of the service involves any
method of pressure or friction against, or stimulating the external parts of the human body with
the hands or any other parts of the body or devices.
Massage Establishment means any establishment, having a fixed place of business where
any person, firm, association, partnership, corporation, joint venture or a combination of
individuals engages in, conducts, carries on or permits to be engaged in, conducted or earned on
for consideration, massages or health treatments in the Town in which massages are given in
return for compensation of any type; including but not limited to any hot tub/sauna
establishment, personal fitness training center, spa, gymnasium, athletic facility, health club or
office in which massage services are made available to clients. For purposes of this division, the
term "massage establishment" shall include, but not be limited to, any establishment providing
off-premises massage services as well as any establishment which offers services such as
relaxation, hot tub, towel wraps, baths, health treatments, tanning, or any service where the
essential nature of the interaction between the employee and the customer involves a massage.
Massage Establishment Permit means a written document authorizing the holder to engage
in the business of providing massage for compensation.
Massage Therapist who performs massage in return for compensation of any type and who
has completed a minimum of three hundred (300) or more verifiable hours in a resident course of
study from a recognized school on the theory, ethics, history, practice, methods, professio n or
work of massage, including the study of anatomy and physiology and hygiene, with at least
seventy-five (75) hours of the required three hundred (300) hours in the areas of demonstration
and practice of massage techniques from a recognized school, that which provides a diploma or
certificate of completion upon successful completion of such resident course of study.
Massage Therapist trainee means any person who is defined in "Massage Therapist" above,
and who has written proof he/she is currently enrolled in a recognized school of massage and has
completed a minimum of fifty (50) hours of instruction from said recognized school and will be
working under the direct supervision of a lawfully permitted massage therapist as provided in
this Article XI, and will only be conducting massage therapy on staff or permitted therapists of
that establishment, and not members of the public.
Out-call Off-premises massage service means any therapist who provides massage services
at a location designated by the customer or client or the Massage Therapist or the out-call
massage service, other than at the designated approved Massage Establishment. practicing
massage for compensation at a location other than at a permitted massage establishment.
Operator means any person who operates and is responsible for the day-to-day activities of
a massage establishment.
Owner " means any individual who has any direct or indirect ownership interest in a
massage establishment.
Person means any individual, partnership, firm, association, corporation, joint venture or
any other combination of individuals for the purpose of doing business.
Police Chief means the Los Gatos/Monte Sereno Police Chief or his or her designee.
Recognized school means any school or institution of higher learning which has been
approved pursuant to California Education Code Section 94300 et seq. or other applicable state
Page 4
law or regulations of California or another state, or other country which requires a resident
course of study on the theory, ethics, history, practice, methods, profession or work of massage,
including the study of anatomy and physiology and hygiene, and which provides a diploma or
certificate of completion upon successful completion of such course of study. At least seventy-
five (75) hours of the required three hundred (300) hours shall be in the areas of demonstration
and practice of massage techniques. Schools offering correspondence course(s) not requiring
actual attendance of class shall not be deemed a recognized school. The Town shall have the
right to confirm the fact that the applicant has actually attended classes in a recognized school for
the aforementioned minimum time period.
State Certificate Holder means a person who holds a current and valid California state
certificate from the CAMTC as a massage practitioner or massage therapist, per Business and
Professions Code sections 4600-4620.
Sec. 14.110.020. - Exemptions.
The provisions of this chapter Section 14.110.025 shall not apply to the following classes of
individuals while engaged in the performance of the duties of their respective professions::
(a) Physicians, surgeons, chiropractors, acupuncturists, osteopaths, registered nurses, physical
therapists or other health professionals who are duly licensed to practice their respective
professions under the laws of the State of California when engaging in such practice within
the scope of his or her license..
(b) Persons who hold a current and valid CAMTC state certification and who are practicing
consistent with the qualifications and requirements of such certificate.
(b) Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long
as such persons do not practice massage therapy as their primary occupation at any location
where they provide such services in the Town.
(c) Barbers or cosmetologists who are duly licensed under the laws of the State of California
while performing massage within the scope of their licenses. while engaging in practices
within the scope of their licenses.
(d) Persons administering massages or health treatments involving massage to other persons
who are participating in a recreational or special event such as road races, track meets,
triathlons, educational events, or conferences that has been approved by the Town, provided
that the following conditions are met:
(1) The massage services are made available equally to all participants in the event;
(2) The event is open to participation by the general public or a significant segment of the
public;
(3) The massage services are provided during the event in an open environment at the site of
the event;
(4) The sponsors of the event have approved the provision of massage services at the event;
and
Page 5
(5) The persons providing the massage services are in compliance with all applicable Town
Codes and other laws.
(e) Somatic practitioners who use no physical touch of any kind at any time in their practice.
(f) Enrolled students of a school of massage when they are performing massage within the city
as part of a formal supervised internship or training program operated by the school, without
compensation other than school credit, on the premises of a massage establishment duly
authorized to operate pursuant to the terms of this chapter; and provided that the operator of the
massage establishment has first notified the director in writing of the name, residence address,
and school of the students and the dates of the trainings.
Sec. 14.110.025. - Permit/certification requirements for massage establishments, massage
therapists.
(a) Massage Establishments. No person shall establish, operate or maintain a Massage
Establishment within Town limits without ensuring that each massage practitioner/therapist
(whether an employee or independent contractor) working within the establishment has a
current and valid state certification through CAMTC or has obtained a current and valid
massage permit from the Police Department.
(b) Massage Therapist permit. No person shall practice massage or give massages in return for
compensation of any type within Town limits without a current and valid state certification
from the CAMTC or absent such certificate, obtaining from the Police Chief and
maintaining in effect a Massage Therapist permit. It is unlawful for any person to practice
massage or give massages in return for compensation while his/her Massage Therapist
permit or state certification has been suspended or revoked, or has expired.
(a) No person, firm, association, partnership, corporation or other entity shall have an ownership
interest in or operate a massage establishment without first obtaining a Massage
Establishment Permit from the Police Chief or his/her designee.
(b) Except as provided in Section 14.110.020, no person other than a Certified Massage
Therapist or a Certified Massage Practitioner shall provide massage for compensation.
(c) Except as provided in Section 14.110.020, no person, firm, association, partnership,
corporation or other entity shall employ any person other than a Certified Massage Therapist
or Certified Massage Practitioner to provide massage for compensation.
Sec. 14.110.030. - Educational requirements for massage therapists.
(a) General educational requirements. Except as indicated below, all applicants for a Massage
Therapist permit must meet the following educational standards in order to qualify for such
permit, at the discretion of the Chief of Police:
(1) Possession of a diploma or certificate of completion from a recognized school which
shows satisfactory completion of a resident course of study of a minimum of three
Page 6
hundred (300) verifiable hours on the theory, ethics, history, practice, and/or methods of
massage therapy, including the study of anatomy, physiology and hygiene, with at least
seventy-five (75) hours of the required three hundred (300) hours in the areas of
demonstration and practice of massage techniques; or
(2) Possession of a diploma or certificate of completion from a recognized school or public
school showing satisfactory completion of a minimum of three hundred (300) verifiable
hours of a non-repetitive curriculum which covers the subjects described in subsection
(1) above, and a transcript or transcripts from a college or junior or community college
in the State of California, or a college or junior or community college in another state
from which courses would be acceptable for transfer credit to any college in the
California State University and College System, which shows completion, with a
passing grade or better, of at least eight (8) quarter units or six (6) semester units of
courses in health theory, health care, anatomy, physiology, psychology, biomechanics
or kinesiology; or
(3) Degrees, certificates, diplomas, and course work received at other institutions,
American or foreign, shall be accepted only if such institution is approved by an
education agency in that state or country and the curriculum or course of studies meets
the criteria set out by this Code. Course descriptions, school catalogs or bulletins may
be required by the department to substantiate the curriculum.
(b) Exemptions from educational requirements. The following persons are exempt from the
educational requirements set forth in subsection (a) above:
(1) Holders of Massage Establishment business licenses and Massage Therapists business
licenses issued by the Town before the effective date of this Article XI shall have a
period of eighteen (18) months from the effective date of this Article XI to satisfy the
educational requirements set forth in subsection (a) above.
(2) At the end of eighteen (18) months from the effective date of this Article XI, any
therapist who does not have the required three hundred (300) hours of education will
not be permitted to practice in Los Gatos. However, consideration can be given by the
Chief of Police at his/her discretion, to those therapists who can prove through
documentation that they are currently enrolled in coursework associated with massage
therapy and compliance of the three hundred-hour requirement is expected in a
reasonable amount of time.
Sec. 14.110.035. - Applications for massage therapist permits. a Massage Establishment Permit.
(a) Submission of application. All persons who wish to obtain a Massage Therapis Massage
Establishment t pPermit from the Town shall file a written application with the Police Chief
on a form provided by the Town, which contains the following information:
(1) The full name, including any nicknames or other names used presently or in the past,
and the present address and phone number of the applicant;
(2) The applicant's two (2) most recent addresses within the last seven (7) years, and the
dates of residence at each address;
Page 7
(3) Proof the applicant is over eighteen (18) years of age;
(4) The applicant's height, weight and colors of eyes and hair;
(5) The applicant's driver's license and/or California I.D. number (if any) and Social
Security number and CAMTC certification;
(6) The applicant's two (2) most recent employers within the last seven (7) years, including
their names, addresses and phone numbers, and the position held by the applicant and
dates of employment;
(7) The names and addresses of any massage facility or other businesses involving massage
by which the applicant has been employed, or self-employed as a Massage Therapist,
within the past ten (10) years and the dates of employment ;
(8) Any criminal conviction on the part of the applicant for offenses other than traffic
violations within the ten (10) years preceding the date of the application;
(9) Any criminal charges pending against the applicant at the time of the application, other
than traffic citations, the name and location of the court in which the criminal charges
are pending and the applicable case numbers;
(10) Whether the applicant has ever had a license, certificate or permit related to the practice
of massage, or the operation of a Massage Establishment, or other business involving
the practice of massage, suspended or revoked within the ten (10) years preceding the
date of the application, the dates and reasons for any such suspensions or revocations,
and the name and location of the jurisdiction or public agency which suspended or
revoked such license, permit or certificate;
(11) Whether the applicant has ever operated or been employed at any business which has
been the subject of an abatement proceeding under the California Red Light Abatement
Act (California Penal Code Sections 11225 through 11325) or any similar laws in other
jurisdictions. If the applicant has previously worked at such a business, he/she should
state on the application the name and address of the business, the dates on which the
applicant was employed at such business, the name and location of the court in which
the abatement action occurred, the applicable case number and the outcome of the
abatement action;
(12) Whether the applicant provided sufficient information to the Town's satisfaction
that they meet the educational requirements set forth in section 14.110.030;
(132) Whether the applicant had previously applied to the Town for a Massage
Therapist Establishment pPermit, the date of the previous application and any other
name(s) under which the application was made;
(143) The name and address of the owner of the real property upon or in which the
business is to be conducted. In the event the applicant is not the legal owner of the
property, the application must be accompanied by a copy of the lease and a notarized
acknowledgment from the owner of the property that a Massage Establishment will be
located on his/her property;
(154) Proof of malpractice insurance in the sum of not less than one hundred thousand
dollars ($100,000.00) per massage therapist licensed, or to be licensed, at the Massage
Page 8
Establishment up to a maximum of five hundred thousand dollars ($500,000.00); this
requirement can be satisfied by malpractice insurance being provided in the name of
individual Massage Therapist or establishment;
(165) Written authorization for the Town, its agents and employees, to seek information
and to conduct an investigation into the truth of the statements set forth in the
application and into the background of the applicant;
(176) The applicant shall advise the Town in writing of any change of address or change
in fact(s) represented to Town which may occur during the Town's processing of the
application; and
(187) A statement under penalty of perjury that the applicant has not knowingly and
with the intent to deceive made any false, misleading or fraudulent statements or
omissions of fact in his/her application or any other documents required by the Town to
be submitted with the application.
(b) Other required information. Applicants Massage Therapist permits shall also submit the
following information to the Police Chief at the time of their application:
(1) A birth certificate or other legal documentation that verifies the identity of the applicant
and verifies that the applicant is over eighteen (18) years of age;
(2) A diploma, certificate of completion, transcripts from each school or institution from
which the Massage Therapist has obtained training or other written proof acceptable to
the Police Chief that the applicant has met the educational requirements set forth in
section 14.110.030. Diplomas, certificates of completion and transcripts shall indicate
the number of hours or training received by the certificate holder.
(318) Other related information requested by the Police Chief in order to evaluate the
background and qualifications of the applicant for the permit sought. This may include
information or documentation to indicate whether the Massage Therapist is affiliated
with or a member of any recognized national or state massage therapy association or
organization.
(c) Payment of permit fees. At the time of filing an original application for a Massage Therapist
Establishment Ppermit, applicants shall pay Massage Therapist permit fees (as applicable) in
an amount established by a resolution of the Town Council. All fees shall be non -
refundable.
(d) Processing of application and investigation. Upon receipt of an application for a Massage
TherapistEstablishment pPermit, the Police Chief shall review the application and
supplementary material. If it is clear from the face of the application and supplementary
materials that the applicant is not qualified for a permit, or the application is incomplete, the
application may be denied without further investigation. If it appears from the face of the
application and supplementary material that the applicant may be eligible for the permit
sought, the Police Chief shall verify the information submitted by the applicant and shall
further investigate the qualifications of the applicant as follows:
(1) Photographs/fingerprints/review of criminal history. The Police Chief shall require a
recent photograph of the applicant.
Page 9
Applicant shall also be responsible for submitting fingerprints pursuant to "Livescan"
procedures and pay all costs associated with such submittal. The applicant's fingerprints
will then be submitted to the Department of Justice (DOJ) and the Federal Bureau of
Investigation (FBI) for evaluation. Upon receipt of the report from the Department of
Justice (DOJ) and the Federal Bureau of Investigation (FBI), the police chief shall
review the criminal history (if any) of the applicant.
(2) Investigation of location and premises of Massage Establishment. Upon receipt of an
application for a new Massage Establishment, the Police Chief shall refer the
application to the Town's applicable department's which shall review the application
and, if necessary, inspect the premises to ensure that the operation of the business at the
designated site will comply with the provisions of this Article XI and the Town's
zoning, building and fire safety standards, and any other applicable Town codes. If a
use permit is required for the Massage Establishment the applicant shall comply with
the Town's zoning code. No home occupation permit shall be issued for a massage
establishment or massage activities.
(3) Additional investigation. The Police Chief may conduct additional investigation in a
manner authorized by law when necessary to determine whether the applicant meets the
qualifications for a permit pursuant to this Article XL.
Sec. 14.110.040. - Grant or denial of application for massage therapist permit.
(a) Time for grant or denial of applications. The Police Chief shall grant or deny the application
for a Massage Therapist Establishment pPermit within thirty (30) calendar days of the
applicant's submission of the application and all required supplementary material. When
necessary to conduct a complete investigation of an application, the Police Chief may extend
this time to a maximum of sixty (60) calendar days. Granting of a permit requires the
mMassage eEstablishment and/or therapist to be in compliance with Chapter 29 of this
Code.
(b) Grounds for denial of Massage Therapist Establishment pPermit. The Police Chief shall
deny an application for a Massage Establishment, Managing Employee permit or Massage
Practitioner pPermit or the renewal thereof if any of the following circumstances exist:
(1) The application is incomplete and/or required supplementary materials are not
submitted on a timely basis;
(2) The applicant, owner, operator, or personnel of a Massage Establishment is required to
register under the provisions of California Penal Code § 290.
(2) The applicant does not have the required educational qualifications, unless the applicant
is exempted from these requirements pursuant to subsection 14.110.030(b);
(3) The applicant has previously had a Massage therapist permit or similar license,
certificate or permit revoked by the Town or any other public agency in any state or
country, within five (5) years. Any revocation beyond five (5) years will be reviewed,
and discretion for approval given by, the Chief of Police;
Page 10
(4) The applicant has made a false, misleading or fraudulent statement or omission of fact
in his/her application or other materials submitted with the application;
(5) The applicant, including applicant as a corporation or partnership, or former employer
of the applicant while the applicant was so employed, has been successfully prosecuted
in an abatement proceeding under the California Red Light Abatement Act (Penal Code
sections 11225 through 11325) or any other similar laws in another jurisdiction;
(6) The applicant has been convicted of:
(a) An offense which requires registration pursuant to California Penal Code section
290; or a violation of sections 266(h), 266(i), 311 through 311.7, 314, 315, 316,
318 or 647(b), 647(d), 647(f) 647.1 of the California Penal Code, or equivalent
offenses under the laws of another jurisdiction, including any other State or
Country.
(b) A prior offense which involves violation of California Health and Safety Code
sections 11351 through 11354, 11358 through 11363, 11378 through 11380, or the
sale of controlled substances specified in California Health and Safety Code
sections 11054, 11056, 11057 or 11058, or equivalent offenses under the laws of
another jurisdiction, including any other State or Country.
(c) Any offense involving dishonesty, fraud, deceit or the use of force or violence upon
another person in the last ten (10) years; or
(d) Any offense involving sexual misconduct. any sex-related crime or crime of moral
turpitude.
(e) For purposes of this section, a plea of "nolo contendere" may also serve as the basis
for the denial of a Massage Therapist permit because the above-listed underlying
offenses bear a substantial relationship to the qualifications, functions or duties of a
Massage Therapist or Establishment.
(7) The operation of the Massage Establishment at the proposed location would be injurious
to the health, safety or welfare of the people of the Town or would violate the Town's
zoning, building or fire regulations, or other provisions of law or the Town Code.
(8) . The applicant or owner or operator of a massage establishment has been convicted in a
court of competent jurisdiction of any offense involving the use of force and violence
upon the person of another which constitutes a felony.
(9) The applicant or the owner or operator of a massage establishment has previously
violated the provisions of this division or of any similar ordinance, law, rule or
regulation of the Town or another public agency which regulates the operation of
massage establishments or persons providing massage.
(10) If an establishment permit or a renewal thereof is approved, the Police Chief may
include such restrictions and conditions in the establishment permit as he or she deems
reasonable and necessary under the circumstances to ensure compliance with the
purposes and intent of this Article.
Page 11
(ac) Notice to applicant of grant or denial of application. The Police Chief shall give written
notice to the applicant of the grant or denial of the application for a permit by certified mail
or by personal service. If the application is denied, the notice shall advise the applicant of
the reasons for the denial and of his/her right to appeal the decision to the Town Manager
through the procedures set forth in subsection (d) below.
(bd) Appeal of denial of Massage Therapist Establishment pPermit to the Town Manager. Upon
the denial of an application for a Massage Therapist Establishment pPermit by the Police
Chief, the applicant may appeal to the Town Manager through the following procedures:
(1) Request for appeal hearing. The applicant shall file a written request for an
appeal hearing, which states the specific grounds on which the decision of the
Police Chief to deny the permit is contested, with the Town Manager's office
within ten (10) calendar days of the personal service of the Police Chief’s
decision to the applicant at the most recent home or business address on file
with the police department, or within ten (10) calendar days of service of the
Police Chief’s decision in the United States mail by certified mail.
(2) Notice of time and place of hearing. Upon receipt of a timely request for an
appeal hearing, the Town Manager's office shall notify the applicant in writing
of the date, time and place of the hearing before the Town Manager or
designee, which shall not be less than ten (10) calendar days after the service
of such written notice on the applicant by in-person delivery at the most recent
home or business address on file with the Town or ten (10) calendar days after
the deposit of the notice in an envelope addressed to the applicant in the United
States mail by certified mail.
(3) Hearing before the Town Manager or designee. At the hearing, both the
applicant and the Police Chief shall have the right to appear and be represented
by counsel, and to present evidence and arguments relevant to the grounds on
which the decision to deny the application is appealed. The burden of proof
shall be on the applicant to demonstrate that he/she meets the qualifications for
a Massage Therapist permit and is entitled to the issuance of such permit.
(4) Decision of the Town Manager or designee. Within ten (10) calendar days of
the hearing, the Town Manager or designee shall issue a written decision,
which states whether the decision of the Police Chief to deny the application is
upheld or reversed, and the reasons for this determination.
The decision shall be served upon the applicant by personal service or by
certified mail. The decision of the Town Manager or designee shall be final.
Sec. 14.110.045. - Business license.
It is unlawful for any person, whether an employee or independent contractor of a massage
establishment, to open or operate a Massage Establishment or self-employment of massage
therapy without obtaining and maintaining in effect a Town business license and paying a
business license tax.
Section 14.110.046 - Massage therapist and massage practitioner registration.
Page 12
Certified Massage Therapists and Certified Massage Practitioners shall provide the Police
Chief with a copy of their California Massage Therapy Council certifications, the name and
address of their massage school(s), and the name and address of any massage establishment in
which they are employed or under contract, during an initial in-person registration with the
Police Chief. Certified Massage Therapists and Certified Massage Practitioners shall also
provide the Police Chief with a copy of their renewed certifications within 90 days of their
renewal and shall notify the Police Chief within 90 days of any start or termination in
employment or contract with a massage establishment. Massage establishment owners and
operators shall be held liable for any employees or contractors who fail to comply with the
requirements of this section.
Sec. 14.110.047 - Notice of employees' status.
Every massage establishment holding an establishment permit shall notify the Police
Chief , in writing, of the name and residence of each employee or contractor providing massage
for compensation. Such notification shall occur within five calendar days of the start of the
individual's employment or contract with the massage establishment.
Sec. 14.110.050. - Operating requirements for massage establishments.
Unless otherwise specified herein, all Massage Establishments shall comply with the
following operating requirements.
(a) Exterior signs. A recognizable and legible sign should be posted at the main entrance
identifying the business and which clearly identifies the establishment to foot and/or
automobile traffic. An additional "Massage" sign need not be in addition to the primary
business sign. The sign shall be in compliance with Chapter 29 of this Code.
(b) Display of Massage Therapist Establishment pPermit. Every Massage Practitioner
employed by the Massage Establishment shall hold a valid CAMTC certification or
Massage Therapist permit issued by the police department. Each state certified Massage
therapist/practitioner or Police Department permit holder shall be issued a photo
identification card from the police department. The Massage Therapist permit holder
shall display the identification card on his/her person during business hours, or have the
identification card displayed in plain view. A copy of the current Massage
Establishment Permit shall be displayed in a conspicuous, public place within the
massage establishment premises. A copy of each Certified Massage Therapist’s’s and
Certified Massage Practitioner's CAMTC certification shall be kept on the premises and
available for inspection
.
(c) Dressing/massage room. Clients of the Massage Establishment shall be furnished with a
dressing/massage room, or private area for changing clothes.
(d) Payment/tips. All massage services shall be paid for in the reception area, and all tips, if
any, shall be paid for in the reception area. Massage Establishments may utilize a
system where tip envelopes are provided in the treatment rooms to be utilized and
deposited by the client in the reception area.
Page 13
(e) Alcohol prohibited. No alcoholic beverages may be possessed or consumed on the
premises of the Massage Establishment.
(f) No condoms. No condoms shall be kept at the Massage Establishment unless they are
the personal property of persons on-site, and they are for the individual's personal use
outside the business premises.
(g) Standard of dress. The holder of the Massage Therapist permit or state certification,
and all other employees of the Massage Establishment shall remain fully clothed at all
times while on the premises of the Massage Establishment. At a minimum, such
clothing shall be made of a non-transparent material and shall not expose the buttocks,
genital area or breasts of any employee or the holder of the permit. Bikini swimsuits and
halter tops shall not be acceptable. All Certified Massage Therapists and Certified
Massage Practitioners shall meet the dress code requirements in California Business and
Professions Code section 4609, subdivision (a)(10), and all other employees,
contractors, and owners of the massage establishment shall remain fully clothed in clean
outer garments while on the premises of the massage establishment. At a minimum such
clothing shall be made of non-transparent material and shall cover the entirety of the
torso area from the chest to mid-thigh.
(h) Operating hours. All Massage Establishments shall be closed for business by no later
than 10:00 p.m. and shall open for business no earlier than 6:00 a.m. A Massage
Establishment operating under a Conditional Use Permit (CUP) approved prior to the
enactment of this article may continue to operate under the hours permitted in the use
permit. The Town may set the specific operating hours for each Massage Establishment
through the conditional use permit process. It shall be unlawful for any Massage
Therapist, or other employee of a Massage Establishment, to give or practice massage
during the hours when the Massage Establishment is closed.
(i) List of services. A list of services available and the cost of such services shall be be
available in an open public place within the premises, and they shall be described in
readily understandable language. Nothing in this section shall preclude the list of
services to be printed in another language other than English. No owner, operator,
manager, and/or responsible, of a Massage Establishment shall permit, and no Massage
Therapist shall offer or perform, any service other than those posted.
(j) Records. Every Massage Establishment shall keep a written record of the date and hour
of each service provided; the first and last name of each patron and the service received;
and the first and last name of the Massage Therapist administering the service. Said
records shall be open to inspection by Town officials, limited to sworn members of the
Police Department, Town Code Compliance Officer and the Town Attorney, who is
charged with enforcement of this Article XI. A valid subpoena should be obtained by
these specific officials prior to inspection of records. These records may not be used by
the Massage Establishment for any other purpose than as records of service provided,
and unless otherwise required by law, they shall not be provided to third parties by the
Massage Establishment. Said records shall be retained on the premises of the Massage
Establishment business office for a period of not less than three (3) years.
Page 14
(k) Identification of employees. Certified Massage Therapists and Certified Massage
Practitioners shall wear their CAMTC-issued picture identification cards while on the
massage establishment premises or otherwise engaged in the business of providing
massage for compensation.
(l) Devices prohibited. No device, including, but not limited to, an audio or video recording
device, shall be used by a massage establishment, Certified Massage Therapist, or
Certified Massage Practitioner to monitor the practice of a massage, or any conversation
or other sounds in massage rooms without the expressed consent of the client. No
device of any kind shall be installed or used which would operate in any way to detect
or interfere with law enforcement surveillance or communication equipment.
(m) Advertising. No person or massage establishment shall advertise in any manner or form
that he, she, or it provides massage for compensation unless the person or massage
establishment meets the permit and certification requirements of this division. All
advertisements for massage and massage establishments and the services offered therein
shall reflect the professional nonsexual nature of the business. No massage
establishment granted an establishment permit under this division shall distribute or
cause to be distributed any advertising matter that depicts any service is available other
than those services authorized by this division.
(n) Entry and exit. All massage establishment clients shall enter and exit exclusively
through the front door of the massage establishment. The front door shall be the door
facing the street or, if no such door exists, the door that is most visible to members of
the public passing by the massage establishment.
(o) Sex and gender discrimination prohibited. A massage establishment cannot provide
services only to persons of a single sex or gender, nor may it refuse to serve any
individual based on sex or gender.
(
Sec. 14.110.055. - Sanitation requirements/condition of premises.
(a) Required maintenance of Massage Establishments. All premises and facilities of the
Massage Establishments shall be maintained in a clean and sanitary condition and shall be
thoroughly cleaned after each day of operation. The premises and facilities shall meet
applicable Code requirements of the Town, including but not limited to those related to the
safety of the structure, adequacy of the plumbing, heating, ventilating and waterproofing of
rooms in which showers, water or steam baths are used.
(b) Linens. All Massage Establishments shall provide clean, laundered sheets, towels, and other
linens in sufficient quantity for use by their clients. Such linens shall be laundered after each
use and stored in a sanitary manner. No common use of linens or towels shall be permitted.
Heavy white paper may be substituted for sheets on massage tables, so long as such paper is
used only once for each client and is then discarded into a sanitary recept acle. Sanitary
receptacles shall be provided for the storage of all soiled linens.
(c) Privacy standards for massage rooms, dressing rooms and rest rooms. The Massage
Establishment shall provide doors on all of its dressing rooms and massage rooms.
Page 15
Nontransparent draw drapes, curtain enclosures or accordion-pleated enclosures are
acceptable in lieu of doors for dressing and massage rooms.
(d) No residential use. No part of the Massage Establishment shall be used for residential or
sleeping purposes. No cooking or food preparation will be allowed on the premises unless it
is within an employee only designated kitchen area.
Sec. 14.110.060. - Prohibited acts.
(a) Touching of sexual and genital parts of client during massage. No Certified Massage
therapist, or any other employee or contractor of a Massage Establishment shall place either
his/her hand or hands upon, or touch with any part of his/her body, a sexual or genital part of
any other person in the course of a massage, or massage a sexual or genital part of any other
person.
Sexual and genital parts shall include the genitals, pubic area, anus or perineum of any
person or the vulva or breast of a female. In the case of breast massage, female clients shall
sign a written consent form, provided by the establishment and/or practitioner prior to
providing breast massage.
(b) Uncovering and exposure of sexual and genital parts before, during or after massage. No
Certified Massage Therapist, Certified Massage Practitioner, or other employee or
contractor of a Massage Establishment shall uncover and expose the sexual or genital parts,
as defined in subsection (a), above, of a client or themselves in the course of giving a
massage, or before or after a massage. This subsection does not prohibit a client from
turning over in the course of a massage, so long as the Massage Therapist holds a towel,
sheet, blanket or other drape over the client to protect his/her genital and sexual parts from
exposure.
(c) Violation of provisions of this section may be charged separately as a felony as permitted by
state law.
Sec. 14.110.065. - Out-call massage services.
Any mMassage therapist Establishment who has complied with all applicable provisions of
this Article XI may provide out-call massage services to clients within the Town of Los Gatos.
Such Massage Therapist Establishments shall maintain their permits upon their persons; or
within their immediate reach, at all times while performing massage in the Town and shall
display these upon the request of any client, police officer or code compliance officer.
Sec. 14.110.070. - Transfer of mMassage therapist Establishment Ppermit.
No Massage Establishment Therapist permit issued pursuant to this Article XI shall be
transferred, altered in name, or assigned in any manner, whether by operation of law or
otherwise, from location to location or from person to person., except that any person possessing
Page 16
a valid Massage Therapist permit shall be able to move from one employer to another without
filing a new application or paying a new fee, so long as the permit holder notifies the police chief
of the change in his/her employment within five (5) business days of their move date to the new
location.
(Ord. No. 2178, § I, 10-5-09)
Sec. 14.110.075. - Expiration and renewal of mMassage therapist Establishment pPermit;
payment of renewal fee.
(a) All Massage TherapistEstablishment pPermits shall expire annually on the date of their
issuance, unless revoked sooner by the Police Chief.
(b) Applications for renewal of a permit must be submitted to the Police Chief by no later than
sixty (60) calendar days before the expiration of such permit on a form provided by the
Police Department, which shall require the applicant for renewal to update the information
contained in his/her original application. The applicant must pay the Town a non -refundable
renewal fee, in the amount established by resolution of the Town Council, at the time of
filing his/her application for renewal.
(c) After investigating the application for renewal, the Police Chief may renew the permit if the
applicant continues to meet the standards for the issuance of a permit, and none of the
grounds for denial of a permit set forth in subsection 14.110.040(b) exist. The Police Ch ief
shall give the applicant for renewal written notice of his/her decision within sixty (60)
calendar days of the submission of the application for renewal to the police department by
personal service of the decision to the applicant at his/her most recent home or business
address on file with the Police Department or deposit of the decision in the United States
mail by certified mail. If the application is denied, the notice shall state the specific grounds
for the denial and that the applicant may appeal to the Town Manager through the
procedures set forth in section 14.110.040(7)(d).
(b) If the holder of a Massage Therapist Establishment pPermit does not file a timely
application for renewal sixty (60) calendar days before expiration of the permit), he/she shall
be required to file an application for a new permit pursuant to section 14.110.025 and to pay
the applicable fees.
Sec. 14.110.080. - Suspension and revocation of mMassage therapist Establishment pPermit.
(a) Grounds for suspension or revocation of Massage Therapis Establishment t pPermit. The
Police Chief may suspend for a period of up to nine (9) months or revoke a Massage
Therapist Establishment permit, according to procedures set forth in subsection (c) below, if
there is probable good cause to believe that:
(1) The permit holder has operated or managed the Massage Establishment in a manner
which violates any provision of this Article XI, or other applicable Town Code
provisions, state or federal law;
Page 17
(2) The permit holder has committed any offense involving lewdness, indecent exposure,
prostitution, human trafficking or any other offense which would be grounds for denial
pursuant to section 14.110.040 or employees of the Massage Establishment have
committed such offenses in the course of their employment and the permit holder has
permitted them to do so or has failed to prevent them from doing so;
(3) Has made a false or misleading statement or omission of fact on his/her application for
a permit, or for renewal of the permit, or in any supplementary materials submitted with
the application; or
(4) Is operating or managing the Massage Establishment in a manner which poses a danger
to the health and safety of clients and/or the public, or without due regard for proper
sanitation or hygiene.
(b) Grounds for revocation or suspension of Massage Therapist permit. The Police Chief may
suspend for a period of up to nine (9) months or revoke a Massage Therapist permit
according to the procedures set forth in subsection (c) below, if there is probable cause to
believe that:
(1) The Massage Therapist has violated any provision of this Article XI, or other applicable
provisions of the Town Code;
(2) The Massage Therapist has committed any violation of law related to lewdness, indecent
exposure, prostitution, human trafficking or any offense which would be grounds for denial
of an application for a Massage Therapist permit pursuant to section 14.110.040;
(3) The Massage Therapist has made a false or misleading statement or omission of fact on
his/her application for a permit or for renewal of a permit or in any supplementary materials
submitted with such applications; or
(4) The Massage Therapist has practiced massage in a manner which poses a danger to the
health and safety of clients or the public, or without due regard for proper sanitation or
hygiene.
(bc) Procedure for revocation or suspension of Massage Therapist Establsihment permit:
(1) Notice to holder of permit. Whenever the Police Chief has probable cause to believe
that grounds for the suspension or revocation of a Massage Therapist permit exist,
he/she shall give the holder of the permit written notice of the date, time and place of a
hearing to be held before the Police Chief on whether the permit should be suspended or
revoked. The notice shall state the alleged grounds for the proposed revocation or
suspension of the permit, and the notice shall be served on the holder of the permit
personally at the most recent home or business address on file with the Police
Department or by deposit of the notice in the United States mail by certified mail. Said
notice shall also state that if no written request for a hearing is timely received, the
applicant shall be deemed to waive its rights to a hearing.
(2) Hearing before Police Chief. The hearing on the revocation or suspension of the permit
shall be held before the Police Chief or his/her designee no less than ten (10) calendar
days after the personal service of the notice to the holder of the permit at the most
recent home or business address on file with the Police Department, or no less than ten
(10) calendar days after deposit of the notice, addressed to the holder of the permit or
Page 18
certificate, in the United States mail by certified mail. At the hearing, the holder of the
permit and a representative of the Town shall have the right to appear and to be
represented by counsel, and to present evidence and arguments which are relevant to a
determination of whether grounds for suspension or revocation of the permit or
certificate exist.
(3) Decision of Police Chief. Within ten (10) calendar days after the hearing, the Police
Chief shall issue a written decision which states whether the permit is suspended or
revoked, the length of any suspension, and the factual basis for the decision, and that the
holder of the permit may appeal any suspension or revocation to the Town Manager
through the procedures set forth in paragraph (4), below. The decision of the Pol ice
Chief shall be served on the holder of the permit by personal service at the most recent
home or business address on file with the Police Department or deposit of the notice,
addressed to the holder of the permit, in the United States mail by certified mail. Said
notice shall also state that if no written request for an appeal hearing is timely received,
the applicant shall be deemed to waive its rights to an appeal hearing.
(4) Request for appeal hearing before the Town Manager. The holder of the permit may
appeal the decision of the Police Chief by filing a written request for an appeal hearing,
which states the specific grounds on which the decision of the Police Chief is contested,
with the Town Manager's office within ten (10) calendar days of the personal service to
the holder of the permit of the Police Chief's decision at the most recent home or
business address on file with the Police Department, or within ten (10) calendar days of
service of the decision by deposit of the notice, addressed to t he holder of the permit, in
the United States mail by certified mail.
(5) Appeal hearing before the Town Manager. Upon receipt of a timely request for an
appeal hearing, the Town Manager's office shall notify the permit holder in writing of
the date, time and place of the hearing before the Town Manager or designee which
shall not be less than ten (10) calendar days after service of such written notice on the
permit holder by personal service at the most recent home or business address on file
with the Police Department, or ten (10) calendar days after service of the notice by
deposit of the notice, addressed to the holder of the permit or certificate, in the United
States mail by certified mail.
At the hearing, both the holder of the permit and the Police Chief shall have the right to
appear and be represented by counsel and to present evidence and arguments which are
relevant to the grounds for the appeal, as stated in the request for an appeal hearing.
Within ten (10) calendar days of the hearing, the Town Manager or designee shall issue
a written decision that states whether the decision of the Police Chief is upheld,
modified or reversed, and the length of any suspension. The decision shall be served on
the holder of the permit by in-person delivery or by certified mail. The decision of the
Town Manager or designee shall be final.
(6) Effective date of revocation or suspension. Any suspension or revocation of a permit
shall become effective immediately upon the personal service of the written decision of
the Police Chief, or, in the event of an appeal, the Town Manager or designee, to the
holder of the permit at the most recent home or business address on file with the city, or
Page 19
within five (5) calendar days of the deposit of such decision addressed to the holder of
the permit into the United States mail by certified mail.
(7) Surrender of suspended or revoked Massage Therapist permit to Police Chief. Upon a
written decision by the Police Chief, or in the event of an appeal, by the Town Manager
or designee, which suspends or revokes a Massage Therapist permit, the permit shall
immediately be surrendered to the Police Chief. In the case of a suspension, the Police
Chief shall return the permit after the period of suspension has ended.
Sec. 14.110.085. - Criminal penalties.
Except as specified in section 14.110.060, a violation of any provision of this Article is a
misdemeanor and may be prosecuted by the Town in the name of the people of the State of
California. The maximum fine or penalty for any violation of this Article X I shall be one
thousand dollars ($1,000.00), or a term of imprisonment in the county jail for a period not
exceeding six (6) months.
Except as otherwise provided, every such person shall be guilty of a separate offense for
each and every day during any portion of which any violation is committed, continued or
permitted by such person, and shall be punishable accordingly.
Sec. 14.110.090. - Inspection by officials.
Any sworn investigating official of the Police Department, Town of Los Gatos Code
Compliance Officer, Building Official, Town Attorney or County Fire Department officials
charged with investigating and enforcing compliance with this Article XI, shall have the right to
enter the Massage Establishment from time to time during regular business hours for the purpose
of making reasonable inspections to observe and enforce compliance with applicable regulations,
laws, codes and the provisions of this Article XL.
(Sec. 14.110.095. - Massage establishment operated in violation of this article xi is deemed a
public nuisance.
Any Massage Establishment which is opened, operated or maintained contrary to the
provisions of this Article XI shall be deemed a public nuisance. In addition to, or in lieu of any
other available legal remedies, the Town Attorney or District Attorney of Santa Clara County
may commence a civil legal action or actions in a court of competent jurisdiction to abate such
nuisance and to enjoin the continued operation and maintenance of the Massage Establishment in
a manner prohibited by this Article XL
(
Sec. 14.110.100. - Application of this Article XI to pre-existing massage establishments and
persons holding valid massage therapist business licenses before effective date of this
Page 20
chapter/one-year time period for holders of pre-existing business licenses to meet new
educational requirements.
The provisions of this division shall be applicable to all persons and businesses described herein.
Massage establishment permits issued by the Town before November 1, 2016 shall not be
renewed. Persons holding such permits must submit a written application for an establishment
permit and comply with the establishment requirements set forth in this Chapter and be issued an
establishment permit as set forth in this Chapter.
Except as otherwise provided herein, the provisions of this chapter shall become applicable
to Massage Establishments which lawfully existed in the Town prior to the effective date of this
chapter, and to persons who held valid Massage Therapist business license issued by the Town
prior to the effective date of this chapter, upon the expiration of such preexisting Massage
Establishment business license and/or Massage Therapist business license and/or pursuant to
section 14.110.075. In order to renew such preexisting Massage Establishment business license,
the holder of the business license must file an application for a new permit pursuant to section
14.110.025, pay all applicable fees and must demonstrate, to the satisfaction of the Police Chief,
that he/she meets all requirements of this chapter, except that holders of preexisting Massage
Establishment business license shall have a period of eighteen (18) months from the effective
date of this chapter to meet the new educational requirements set forth in sections 14.110.025
and 14.110.30, respectively.
(
Page 1 of 20
ORDINANCE NO.
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AMENDING TOWN CODE CHAPTER 14 ARTICLE XI. - MASSAGE THERAPY
ESTABLISHMENTS AND MASSAGE THERAPY PRACTITIONERS
WHEREAS, the Town currently regulates the practice of massage and the operation of
Massage Establishments for the benefit of the public health, safety and welfare; and
WHEREAS, Business and Professions Code section 4600 et seq. (enacted by SB 731 in
2008 and amended by AB 619 in 2011) created a statewide permitting system administered by
the California Massage Therapy Council for issuing massage worker permits, thereby
preempting local permitting systems and requirements; and
WHEREAS, in January 2015, the State of California adopted Assembly Bill 1147 ("AB
1147"), 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. The State law authorizes the Town of Los
Gatos to adopt and enforce local ordinances that govern zoning, business licensing, and
reasonable health and safety requirements for establishments and businesses of a licensed or
certified healing arts professional, including a certified Massage Therapist. The law also made
clarifying and conforming changes regarding local regulation of Massage Establishments and
businesses; and
WHEREAS, the Business and Professions Code continues to allow certain local
regulation of Massage Establishments and, to enable the Town of Los Gatos to carry out such
local regulation and review of Massage Establishments found in Business and Professions Code
section 4600 et seq., the Town must amend its Massage Establishment regulations.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
DOES ORDAIN AS FOLLOWS:
SECTION I.
Los Gatos Town Code Chapter 14 Article XI – Massage Therapy Establishments and
Massage Therapy Practitioners is hereby repealed and reenacted to read as follows:
ARTICLE XI. - MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE
THERAPY PRACTITIONERS
Sec. 14.110.014. - Purpose and intent.
Sec. 14.110.015. - Definitions.
Sec. 14.110.020. - Exemptions.
Sec. 14.110.025. - Permit/certification requirements.
Sec. 14.110.035. - Applications for Massage Establishment Permit.
Attachment 2
Page 2 of 20
Sec. 14.110.040. - Grant or denial of application for Massage Establishment Permit.
Sec. 14.110.045. - Business license.
Sec. 14.110.046. - Massage Therapist and Massage Practitioner registration.
Sec. 14.110.047. - Notice of employees' status.
Sec. 14.110.050. - Operating requirements for Massage Establishments.
Sec. 14.110.055. - Sanitation requirements/condition of premises.
Sec. 14.110.060. - Prohibited acts.
Sec. 14.110.065. - Out-call massage services.
Sec. 14.110.070. - Transfer of Massage Establishment Permit.
Sec. 14.110.075. - Expiration and renewal of Massage Establishment Permit; payment of
renewal fee.
Sec. 14.110.080. - Suspension and revocation of Massage Establishment Permit.
Sec. 14.110.085. - Criminal penalties.
Sec. 14.110.090. - Inspection by officials.
Sec. 14.110.095. - Massage Establishment operated in violation of this Article XI deemed
a public nuisance.
Sec. 14.110.100. - Application of this Article XI to pre-existing Massage Establishments
Sec. 14.110.014. - Purpose and intent.
(a) Purpose.
(1) The Town of Los Gatos is authorized to regulate Massage Establishments pursuant to
Government Code Section 51030 et seq., Business and Professions Code Sections 460 and 4600
et seq. and Section 7 of Article XI of the California Constitution.
(2) In enacting these regulations, the Town of Los Gatos Town Council (hereafter
referred to as "Town Council") recognizes that massage is a viable professional healing art
offering the public valuable health and therapeutic services.
(3) It is the purpose and intent of the Town Council that the operation of Massage
Establishments and persons offering massage be regulated in the interests of public health,
safety, and welfare by providing minimum building, sanitation, and health standards and to
ensure that persons offering massage shall possess the minimum qualifications necessary to
operate such businesses and to perform such services offered.
(4) It is the purpose and intent of this Article XI to articulate regulations to ensure
that persons offering massage services are qualified and trained and can be expected to conduct
their work in a lawful and professional manner.
(5) Specifically, the regulations in this Article are intended to reduce or prevent blight,
protect and preserve the quality of commercial and residential properties, protect and preserve
the quality of life in the Town of Los Gatos, deter criminal activity, enhance enforcement of
criminal statutes, and prevent commercial sexual exploitation and human trafficking.
Page 3 of 20
(b) Conflicts with other provisions of this Code. In the event of any conflicts or
inconsistencies between the provisions of this Article XI and the remaining provisions of this
Chapter 14 or with the provisions of any other chapter(s) of the Town Code, the provisions of
this Article XI shall control, unless to do so would be inconsistent with the stated purpose of this
Article XI. Any Massage Establishment is further regulated pursuant to Chapter 29 of this Code.
(c) Responsibility for enforcement. The primary responsibility for enforcement of the
provisions of this Article XI shall be vested in the Chief of Police.
Sec. 14.110.015. - Definitions.
For purposes of this Article XI, the following words, terms and phrases are defined as
follows:
California Massage Therapy Council (CAMTC) means the California Massage Therapy
Council created pursuant to Chapter 10.5 of Division 2 of the California Business and
Professions Code.
Certified Massage Therapist or CMT means a person who holds a current and valid
CAMTC certification as a Massage Therapist.
Certified Massage Practitioner or CMP means a person who holds a current and valid
CAMTC certification as a Massage Practitioner.
For compensation means the exchange of massage for money, goods or services. An
establishment or person cannot avoid the requirements of this Artilce by offering free massage in
conjunction with other services or goods provided for compensation.
Massage means any method of treating the external parts or surfaces of the human body
by bathing, rubbing, pressing, stroking, pounding, kneading, tapping, vibrating, or touching or
stimulating with the hands or any part of the body, or with the aid of any mechanical or electrical
apparatus or other appliances or devices, with or without the use of oils, creams, tonics, lotions,
antiseptics, tanning products, or other similar preparations. Massage shall further include baths,
aromatherapy, vapor, shower, electric tub, sponge, hot towels, sauna, steam, or any other type of
bathing activity where the essential nature of the service involves any method of pressure or
friction against, or stimulating the external parts of the human body with the hands or any other
parts of the body or devices.
Massage Establishment means any establishment, having a fixed place of business where
any person, firm, association, partnership, corporation, joint venture or a combination of
individuals engages in, conducts, carries on or permits to be engaged in, conducted or earned on
for consideration, massages or health treatments in the Town in which massages are given in
return for compensation of any type; including but not limited to any hot tub/sauna
establishment, personal fitness training center, spa, gymnasium, athletic facility, health club or
office in which massage services are made available to clients. For purposes of this Article, the
term "Massage Establishment" shall include, but not be limited to, any establishment providing
Page 4 of 20
off-premises massage services as well as any establishment which offers services such as
relaxation, hot tub, towel wraps, baths, health treatments, tanning, or any service where the
essential nature of the interaction between the employee and the customer involves a massage.
Massage Establishment Permit means a written document authorizing the holder to
engage in the business of providing massage for compensation.
Off-premises massage means practicing massage for compensation at a location other
than at a permitted Massage Establishment.
Operator means any person who operates and is responsible for the day-to-day activities
of a Massage Establishment.
Owner means any individual who has any direct or indirect ownership interest in a
Massage Establishment.
Person means any individual, partnership, firm, association, corporation, joint venture or
any other combination of individuals for the purpose of doing business.
Police Chief means the Los Gatos/Monte Sereno Police Chief or his or her designee.
State Certificate Holder means a person who holds a current and valid California State
Certificate from the CAMTC as a Massage Practitioner or Massage Therapist, per Business and
Professions Code sections 4600-4620.
Sec. 14.110.020. - Exemptions.
The provisions of Section 14.110.025 shall not apply to the following classes of
individuals while engaged in the performance of the duties of their respective professions:
(a) Physicians, surgeons, chiropractors, acupuncturists, osteopaths, registered nurses,
physical therapists or other health professionals who are duly licensed to practice their respective
professions under the laws of the State of California when engaging in such practice within the
scope of his or her license.
(b) Trainers of any amateur, semi-professional, or professional athlete or athletic team,
so long as such persons do not practice massage therapy as their primary occupation at any
location where they provide such services in the Town.
(c) Barbers or cosmetologists who are duly licensed under the laws of the State of
California while performing massage within the scope of their licenses while engaging in
practices within the scope of their licenses.
(d) Persons administering massages or health treatments involving massage to other
persons who are participating in a recreational or special event such as road races, track meets,
Page 5 of 20
triathlons, educational events, or conferences that has been approved by the Town, provided that
all of the following conditions are met:
(1) The massage services are made available equally to all participants in the event;
(2) The event is open to participation by the general public or a significant segment of
the public;
(3) The massage services are provided during the event in an open environment at the
site of the event;
(4) The sponsors of the event have approved the provision of massage services at the
event; and
(5) The persons providing the massage services are in compliance with all applicable
Town Codes and other laws.
(e) Somatic practitioners who use no physical touch of any kind at any time in their
practice.
(f) Enrolled students of a school of massage when they are performing massage within
the city as part of a formal supervised internship or training program operated by the school,
without compensation other than school credit, on the premises of a Massage Establishment duly
authorized to operate pursuant to the terms of this chapter; and provided that the operator of the
Massage Establishment has first notified the director in writing of the name, residence address,
and school of the students and the dates of the trainings.
Sec. 14.110.025. - Permit/certification requirements.
(a) No person, firm, association, partnership, corporation or other entity shall have an
ownership interest in or operate a Massage Establishment without first obtaining a Massage
Establishment Permit from the Police Chief or his/her designee.
(b) Except as provided in Section 14.110.020, no person other than a Certified Massage
Therapist or a Certified Massage Practitioner shall provide massage for compensation.
(c) Except as provided in Section 14.110.020, no person, firm, association, partnership,
corporation or other entity shall employ any person other than a Certified Massage Therapist or
Certified Massage Practitioner to provide massage for compensation.
Sec. 14.110.035. - Applications for a Massage Establishment Permit.
(a) Submission of application. All persons who wish to obtain a Massage
Establishment Permit from the Town shall file a written application with the Police Chief on a
form provided by the Town, which contains the following information:
Page 6 of 20
(1) The full name, including any nicknames or other names used presently or in the
past, and the present address and phone number of the applicant;
(2) The applicant's two (2) most recent addresses within the last seven (7) years, and
the dates of residence at each address;
(3) Proof the applicant is over eighteen (18) years of age;
(4) The applicant's height, weight, and colors of eyes and hair;
(5) The applicant's Driver's License and/or California I.D. number (if any) and Social
Security number and CAMTC certification;
(6) The applicant's two (2) most recent employers within the last seven (7) years,
including their names, addresses and phone numbers, and the position held by the applicant and
dates of employment;
(7) The names and addresses of any massage facility or other businesses involving
massage by which the applicant has been employed, or self-employed as a Massage Therapist,
within the past ten (10) years and the dates of employment;
(8) Any criminal conviction on the part of the applicant for offenses other than traffic
violations within the ten (10) years preceding the date of the application;
(9) Any criminal charges pending against the applicant at the time of the application,
other than traffic citations, the name and location of the court in which the criminal charges are
pending and the applicable case numbers;
(10) Whether the applicant has ever had a license, certificate or permit related to the
practice of massage, or the operation of a Massage Establishment, or other business involving the
practice of massage, suspended or revoked within the ten (10) years preceding the date of the
application, the dates and reasons for any such suspensions or revocations, and the name and
location of the jurisdiction or public agency which suspended or revoked such license, permit or
certificate;
(11) Whether the applicant has ever operated or been employed at any business which
has been the subject of an abatement proceeding under the California Red Light Abatement Act
(California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions.
If the applicant has previously worked at such a business, he/she should state on the application
the name and address of the business, the dates on which the applicant was employed at such
business, the name and location of the court in which the abatement action occurred, the
applicable case number and the outcome of the abatement action;
(12) Whether the applicant had previously applied to the Town for a Massage
Establishment Permit, the date of the previous application and any other name(s) under which
the application was made;
Page 7 of 20
(13) The name and address of the owner of the real property upon or in which the
business is to be conducted. In the event the applicant is not the legal owner of the property, the
application must be accompanied by a copy of the lease and a notarized acknowledgment from
the owner of the property that a Massage Establishment will be located on his/her property;
(14) Proof of malpractice insurance in the sum of not less than one hundred thousand
dollars ($100,000.00) per Massage Therapist licensed, or to be licensed, at the Massage
Establishment up to a maximum of five hundred thousand dollars ($500,000.00); this
requirement can be satisfied by malpractice insurance being provided in the name of individual
Massage Therapist or establishment;
(15) Written authorization for the Town, its agents and employees, to seek information
and to conduct an investigation into the truth of the statements set forth in the application and
into the background of the applicant;
(16) The applicant shall advise the Town in writing of any change of address or change
in fact(s) represented to Town which may occur during the Town's processing of the application;
and
(17) A statement under penalty of perjury that the applicant has not knowingly and
with the intent to deceive made any false, misleading or fraudulent statements or omissions of
fact in his/her application or any other documents required by the Town to be submitted with the
application.
(18) Other related information requested by the Police Chief in order to evaluate the
background and qualifications of the applicant for the permit sought. This may include
information or documentation to indicate whether the Massage Therapist is affiliated with or a
member of any recognized national or state massage therapy association or organization.
(b) Payment of permit fees. At the time of filing an original application for a
Massage Establishment Permit, applicants shall pay permit fees (as applicable) in an amount
established by a resolution of the Town Council. All fees shall be non-refundable.
(c) Processing of application and investigation. Upon receipt of an application for a
Massage Establishment Permit, the Police Chief shall review the application and supplementary
material. If it is clear from the face of the application and supplementary materials that the
applicant is not qualified for a permit, or the application is incomplete, the application may be
denied without further investigation. If it appears from the face of the application and
supplementary material that the applicant may be eligible for the permit sought, the Police Chief
shall verify the information submitted by the applicant and shall further investigate the
qualifications of the applicant as follows:
(1) Photographs/fingerprints/review of criminal history. The Police Chief shall
require a recent photograph of the applicant.
Applicant shall also be responsible for submitting fingerprints pursuant to "Livescan"
procedures and pay all costs associated with such submittal. The applicant's fingerprints will
Page 8 of 20
then be submitted to the Department of Justice (DOJ) and the Federal Bureau of Investigation
(FBI) for evaluation. Upon receipt of the report from the Department of Justice (DOJ) and the
Federal Bureau of Investigation (FBI), the Police Chief shall review the criminal history (if any)
of the applicant.
(2) Investigation of location and premises of Massage Establishment. Upon receipt
of an application for a new Massage Establishment, the Police Chief shall refer the application to
the Town's applicable department's which shall review the application and, if necessary, inspect
the premises to ensure that the operation of the business at the designated site will comply with
the provisions of this Article XI and the Town's zoning, building and fire safety standards, and
any other applicable Town codes. If a Use Permit is required for the Massage Establishment the
applicant shall comply with the Town's Zoning Code. No Home Occupation Permit shall be
issued for a Massage Establishment or massage activities.
(3) Additional investigation. The Police Chief may conduct additional investigation
in a manner authorized by law when necessary to determine whether the applicant meets the
qualifications for a permit pursuant to this Article XL.
Sec. 14.110.040. - Grant or denial of application for Massage Therapist Permit.
(a) Time for grant or denial of applications. The Police Chief shall grant or deny the
application for a Massage Establishment Permit within thirty (30) calendar days of the
applicant's submission of the application and all required supplementary material. When
necessary to conduct a complete investigation of an application, the Police Chief may extend this
time to a maximum of sixty (60) calendar days. Granting of a permit requires the Massage
Establishment to be in compliance with Chapter 29 of this Code.
(b) Grounds for denial of Massage Establishment Permit. The Police Chief shall
deny an application for a Massage Establishment Permit or the renewal thereof if any of the
following circumstances exist:
(1) The application is incomplete and/or required supplementary materials are not
submitted on a timely basis;
(2) The applicant, owner, operator, or personnel of a Massage Establishment is required
to register under the provisions of California Penal Code § 290.
(3) The applicant has previously had a Massage Therapist Permit or similar license,
certificate or permit revoked by the Town or any other public agency in an y state or country,
within five (5) years. Any revocation beyond five (5) years will be reviewed, and discretion for
approval given by, the Chief of Police;
(4) The applicant has made a false, misleading or fraudulent statement or omission of
fact in his/her application or other materials submitted with the application;
Page 9 of 20
(5) The applicant, including applicant as a corporation or partnership, or former
employer of the applicant while the applicant was so employed, has been successfully prosecuted
in an abatement proceeding under the California Red Light Abatement Act (Penal Code sections
11225 through 11325) or any other similar laws in another jurisdiction;
(6) The applicant has been convicted of:
(a) An offense which requires registration pursuant to California Penal Code section
290; or a violation of sections 266(h), 266(i), 311 through 311.7, 314, 315, 316, 318 or 647(b),
647(d), 647(f) 647.1 of the California Penal Code, or equivalent offenses under the laws of
another jurisdiction, including any other State or Country.
(b) A prior offense which involves violation of California Health and Safety Code
sections 11351 through 11354, 11358 through 11363, 11378 through 11380, or the sale of
controlled substances specified in California Health and Safety Code sections 11054, 11056,
11057 or 11058, or equivalent offenses under the laws of another jurisdiction, including any
other State or Country.
(c) Any offense involving dishonesty, fraud, deceit or the use of force or violence
upon another person in the last ten (10) years;
(d) Any offense involving any sex-related crime or crime of moral turpitude.
(e) For purposes of this section, a plea of "nolo contendere" may also serve as the
basis for the denial of a Massage Therapist Permit because the above-listed underlying offenses
bear a substantial relationship to the qualifications, functions or duties of a Massage Therapist or
Establishment.
(7) The operation of the Massage Establishment at the proposed location would be
injurious to the health, safety or welfare of the people of the Town or would violate the Town's
zoning, building or fire regulations, or other provisions of law or the Town Code.
(8) The applicant or owner or operator of a Massage Establishment has been convicted
in a court of competent jurisdiction of any offense involving the use of force and violence upon
the person of another which constitutes a felony.
(9) The applicant or the owner or operator of a Massage Establishment has previously
violated the provisions of this Article or of any similar ordinance, law, rule or regulation of the
Town or another public agency which regulates the operation of Massage Establishments or
persons providing massage.
(10) If an Establishment Permit or a renewal thereof is approved, the Police Chief may
include such restrictions and conditions in the Establishment Permit as he or she deems
reasonable and necessary under the circumstances to ensure compliance with the purposes and
intent of this Article.
Page 10 of 20
(c) Notice to applicant of grant or denial of application. The Police Chief shall give
written notice to the applicant of the grant or denial of the application for a permit by certified
mail or by personal service. If the application is denied, the notice shall advise the applicant of
the reasons for the denial and of his/her right to appeal the decision to the Town Manager
through the procedures set forth in subsection (d) below.
(d) Appeal of denial of Massage Establishment Permit to the Town Manager. Upon the
denial of an application for a Massage Establishment Permit by the Police Chief, the applicant
may appeal to the Town Manager through the following procedures:
(1) Request for appeal hearing. The applicant shall file a written request for an
appeal hearing, which states the specific grounds on which the decision of the Police Chief to
deny the permit is contested, with the Town Manager's office within ten (10) calendar days of the
personal service of the Police Chief’s decision to the applicant at the most recent home or
business address on file with the Police Department, or within ten (10) calendar days of service
of the Police Chief’s decision in the United States mail by certified mail.
(2) Notice of time and place of hearing. Upon receipt of a timely request for an
appeal hearing, the Town Manager's office shall notify the applicant in writing of the date, time
and place of the hearing before the Town Manager or designee, which shall not be less than ten
(10) calendar days after the service of such written notice on the applicant by in-person delivery
at the most recent home or business address on file with the Town or ten (10) calendar days after
the deposit of the notice in an envelope addressed to the applicant in the United States mail by
certified mail.
(3) Hearing before the Town Manager or designee. At the hearing, both the
applicant and the Police Chief shall have the right to appear and be represented by counsel, and
to present evidence and arguments relevant to the grounds on which the decision to deny the
application is appealed. The burden of proof shall be on the applicant to demonstrate that he/she
meets the qualifications for a Massage Therapist Permit and is entitled to the issuance of such
permit.
(4) Decision of the Town Manager or designee. Within ten (10) calendar days of the
hearing, the Town Manager or designee shall issue a written decision, which states whether the
decision of the Police Chief to deny the application is upheld or reversed, and the reasons for this
determination.
The decision shall be served upon the applicant by personal service or by certified mail.
The decision of the Town Manager or designee shall be final.
Sec. 14.110.045. - Business license.
It is unlawful for any person, whether an employee or independent contractor of a
Massage Establishment, to open or operate a Massage Establishment or self-employment of
massage therapy without obtaining and maintaining in effect a Town business license an d paying
a business license tax.
Page 11 of 20
Section 14.110.046 - Massage Therapist and Massage Practitioner registration.
Certified Massage Therapists and Certified Massage Practitioners shall provide the Police
Chief with a copy of their California Massage Therap y Council certifications, the name and
address of their massage school(s), and the name and address of any Massage Establishment in
which they are employed or under contract, during an initial in -person registration with the
Police Chief. Certified Massage Therapists and Certified Massage Practitioners shall also
provide the Police Chief with a copy of their renewed certifications within 90 days of their
renewal and shall notify the Police Chief within 90 days of any start or termination in
employment or contract with a Massage Establishment. Massage Establishment owners and
operators shall be held liable for any employees or contractors who fail to comply with the
requirements of this section.
Sec. 14.110.047 - Notice of employees' status.
Every Massage Establishment holding an Establishment Permit shall notify the Police
Chief, in writing, of the name and residence of each employee or contractor providing massage
for compensation. Such notification shall occur within five calendar days of the start of the
individual's employment or contract with the Massage Establishment.
Sec. 14.110.050. - Operating requirements for Massage Establishments.
Unless otherwise specified herein, all Massage Establishments shall comply with the
following operating requirements.
(a) Exterior signs. A recognizable and legible sign should be posted at the main
entrance identifying the business and which clearly identifies the establishment to foot and/or
automobile traffic. An additional "Massage" sign need not be in addition to the primary business
sign. The sign shall be in compliance with Chapter 29 of this Code.
(b) Display of Massage Establishment Permit. A copy of the current Massage
Establishment Permit shall be displayed in a conspicuous, public place within the Massage
Establishment premises. A copy of each Certified Massage Therapist’s and Certified Massage
Practitioner's CAMTC certification shall be kept on the premises and available for inspection
(c) Dressing/massage room. Clients of the Massage Establishment shall be furnished
with a dressing/massage room, or private area for changing clothes.
(d) Payment/tips. All massage services shall be paid for in the reception area, and all
tips, if any, shall be paid for in the reception area. Massage Establishments may utilize a system
where tip envelopes are provided in the treatment rooms to be utilized and deposited by the client
in the reception area.
(e) Alcohol prohibited. No alcoholic beverages may be possessed or consumed on
the premises of the Massage Establishment.
Page 12 of 20
(f) No condoms. No condoms shall be kept at the Massage Establishment unless they
are the personal property of persons on-site, and they are for the individual's personal use outside
the business premises.
(g) Standard of dress. All Certified Massage Therapists and Certified Massage
Practitioners shall meet the dress code requirements in California Business and Professions Code
section 4609, subdivision (a),(10), and all other employees, contractors, and owners of the
Massage Establishment shall remain fully clothed in clean outer garments while on the premises
of the Massage Establishment. At a minimum such clothing shall be made of non-transparent
material and shall cover the entirety of the torso area from the chest to mid-thigh.
(h) Operating hours. All Massage Establishments shall be closed for business by no
later than 10:00 p.m. and shall open for business no earlier than 6:00 a.m. A Massage
Establishment operating under a Conditional Use Permit (CUP) approved prior to the enactment
of this article may continue to operate under the hours permitted in the Use Permit. The Town
may set the specific operating hours for each Massage Establishment through the Conditional
Use Permit process. It shall be unlawful for any Massage Therapist, or other employee of a
Massage Establishment, to give or practice massage during the hours when the Massage
Establishment is closed.
(i) List of services. A list of services available and the cost of such services shall be
available in an open public place within the premises, and they shall be described in readily
understandable language. Nothing in this section shall preclude the list of services to be printed
in another language other than English. No owner, operator, manager, and/or responsible person,
of a Massage Establishment shall permit, and no Massage Therapist shall offer or perform, any
service other than those posted.
(j) Records. Every Massage Establishment shall keep a written record of the date
and hour of each service provided; the first and last name of each patron and the service
received; and the first and last name of the Massage Therapist administering the service. Said
records shall be open to inspection by Town officials, limited to sworn members of the Police
Department, Town Code Compliance Officer, and the Town Attorney, who is charged with
enforcement of this Article XI. A valid subpoena should be obtained by these specific officials
prior to inspection of records. These records may not be used by the Massage Establishment for
any other purpose than as records of service provided, and unless otherwise required by law, they
shall not be provided to third parties by the Massage Establishment. Said records shall be
retained on the premises of the Massage Establishment business office for a period of not less
than three (3) years.
(k) Identification of employees. Certified Massage Therapists and Certified Massage
Practitioners shall wear their CAMTC-issued picture identification cards while on the Massage
Establishment premises or otherwise engaged in the business of providing massage for
compensation.
(l) Devices prohibited. No device, including, but not limited to, an audio or video
recording device, shall be used by a Massage Establishment, Certified Massage Therapist, or
Certified Massage Practitioner to monitor the practice of a massage, or any conversation or other
Page 13 of 20
sounds in massage rooms without the expressed consent of the client. No device of any kind
shall be installed or used which would operate in any way to detect or interfere with law
enforcement surveillance or communication equipment.
(m) Advertising. No person or Massage Establishment shall advertise in any manner or
form that he, she, or it provides massage for compensation unless the person or Massage
Establishment meets the permit and certification requirements of this Article. All advertisements
for massage and Massage Establishments and the services offered therein shall reflect the
professional nonsexual nature of the business. No Massage Establishment granted an
Establishment Permit under this Article shall distribute or cause to be distributed any advertising
matter that depicts any service is available other than those services authorized by this Article.
(n) Entry and exit. All Massage Establishment clients shall enter and exit exclusively
through the front door of the Massage Establishment. The front door shall be the door facing the
street or, if no such door exists, the door that is most visible to members of the public passing by
the Massage Establishment.
(o) Sex and gender discrimination prohibited. A Massage Establishment cannot provide
services only to persons of a single sex or gender, nor may it refuse to serve any individual based
on sex or gender.
Sec. 14.110.055. - Sanitation requirements/condition of premises.
(a) Required maintenance of Massage Establishments. All premises and facilities of
the Massage Establishments shall be maintained in a clean and sanitary condition and shall be
thoroughly cleaned after each day of operation. The premises and facilities shall meet applicable
Code requirements of the Town, including but not limited to those related to the safety of the
structure, adequacy of the plumbing, heating, ventilating and waterproofing of rooms in which
showers, water or steam baths are used.
(b) Linens. All Massage Establishments shall provide clean, laundered sheets,
towels, and other linens in sufficient quantity for use by their clients. Such linens shall be
laundered after each use and stored in a sanitary manner. No common use of linens or towels
shall be permitted. Heavy white paper may be substituted for sheets on massage tables, so long
as such paper is used only once for each client and is then discarded into a sanitary receptacle.
Sanitary receptacles shall be provided for the storage of all soiled linens.
(c) Privacy standards for massage rooms, dressing rooms and rest rooms. The
Massage Establishment shall provide doors on all of its dressing rooms and massage rooms.
Nontransparent draw drapes, curtain enclosures or accordion-pleated enclosures are acceptable in
lieu of doors for dressing and massage rooms.
(d) No residential use. No part of the Massage Establishment shall be used for
residential or sleeping purposes. No cooking or food preparation will be allowed on the premises
unless it is within an employee only designated kitchen area.
Sec. 14.110.060. - Prohibited acts.
Page 14 of 20
(a) Touching of sexual and genital parts of client during massage. No Certified
Massage therapist, or any other employee or contractor of a Massage Establishment shall place
either his/her hand or hands upon, or touch with any part of his/her body, a sexual or genital part
of any other person in the course of a massage, or massage a sexual or genital part of any other
person.
Sexual and genital parts shall include the genitals, pubic area, anus or perineum of any
person or the vulva or breast of a female. In the case of breast massage, female clients shall sign
a written consent form, provided by the establishment and/or practitioner prior to providing
breast massage.
(b) Uncovering and exposure of sexual and genital parts before, during or after
massage. No Certified Massage Therapist, Certified Massage Practitioner, or other employee or
contractor of a Massage Establishment shall uncover and expose the sexual or genital parts, as
defined in subsection (a), above, of a client or themselves in the course of giving a massage, or
before or after a massage. This subsection does not prohibit a client from turning over in the
course of a massage, so long as the Massage Therapist holds a towel, sheet, blanket or other
drape over the client to protect his/her genital and sexual parts from exposure.
(c) Violation of provisions of this section may be charged separately as a felony as
permitted by state law.
Sec. 14.110.065. - Out-call massage services.
Any Massage Establishment who has complied with all applicable provisions of this
Article XI may provide out-call massage services to clients within the Town of Los Gatos. Such
Massage Establishments shall maintain their permits upon their persons; or within their
immediate reach, at all times while performing massage in the Town and shall display these upon
the request of any client, police officer or code compliance officer.
Sec. 14.110.070. - Transfer of Massage Establishment Permit.
No Massage Establishment Permit issued pursuant to this Article XI shall be transferred,
altered in name, or assigned in any manner, whether by operation of law or otherwise, from
location to location or from person to person.
Sec. 14.110.075. - Expiration and renewal of Massage Establishment Permit;
payment of renewal fee.
(a) All Massage Establishment Permits shall expire annually on the date of their
issuance, unless revoked sooner by the Police Chief.
(b) Applications for renewal of a permit must be submitted to the Police Chief by no
later than sixty (60) calendar days before the expiration of such permit on a form provided by the
Page 15 of 20
Police Department, which shall require the applicant for renewal to update the information
contained in his/her original application. The applicant must pay the Town a non-refundable
renewal fee, in the amount established by resolution of the Town Council, at the time of filing
his/her application for renewal.
(c) After investigating the application for renewal, the Police Chief may renew the
permit if the applicant continues to meet the standards for the issuance of a permit, and none of
the grounds for denial of a permit set forth in subsection 14.110.040(b) exist. The Police Chief
shall give the applicant for renewal written notice of his/her decision within sixty (60) calendar
days of the submission of the application for renewal to the Police Department by personal
service of the decision to the applicant at his/her most recent home or business address on file
with the Police Department or deposit of the decision in the United States mail by certified mail.
If the application is denied, the notice shall state the specific grounds for the denial and that the
applicant may appeal to the Town Manager through the procedures set forth in section
14.110.040(7)(d).
(d) If the holder of a Massage Establishment Permit does not file a timely
application for renewal sixty (60) calendar days before expiration of the permit), he/she shall be
required to file an application for a new permit pursuant to section 14.110.025 and to pay the
applicable fees.
Sec. 14.110.080. - Suspension and revocation of Massage Establishment Permit.
(a) Grounds for suspension or revocation of Massage Establishment Permit. The
Police Chief may suspend for a period of up to nine (9) months or revoke a Massage
Establishment Permit, according to procedures set forth in subsection (c) below, if there is good
cause to believe that:
(1) The permit holder has operated or managed the Massage Establishment in a
manner which violates any provision of this Article XI, or other applicable Town Code
provisions, state or federal law;
(2) The permit holder has committed any offense involving lewdness, indecent
exposure, prostitution, human trafficking or any other offense which would be grounds for denial
pursuant to section 14.110.040, or employees of the Massage Establishment have committed
such offenses in the course of their employment and the permit holder has permitted them to do
so or has failed to prevent them from doing so;
(3) Has made a false or misleading statement or omission of fact on his/her
application for a permit, or for renewal of the permit, or in any supplementary materials
submitted with the application; or
(4) Is operating or managing the Massage Establishment in a manner which poses a
danger to the health and safety of clients and/or the public, or without due regard for proper
sanitation or hygiene.
Page 16 of 20
(b) Procedure for revocation or suspension of Massage Establishment Permits.
(1) Notice to holder of permit. Whenever the Police Chief has probable cause to
believe that grounds for the suspension or revocation of a Massage Establishment Permit exist,
he/she shall give the holder of the permit written notice of the date, time and place of a hearing to
be held before the Police Chief on whether the permit should be suspended or revoked. The
notice shall state the alleged grounds for the proposed revocation or suspension of the permit,
and the notice shall be served on the holder of the permit personally at the most recent home or
business address on file with the Police Department or by deposit of the notice in the United
States mail by certified mail. Said notice shall also state that if no written request for a hearing is
timely received, the applicant shall be deemed to waive its rights to a hearing.
(2) Hearing before Police Chief. The hearing on the revocation or suspension of the
permit shall be held before the Police Chief or his/her designee no less than ten (10) calendar
days after the personal service of the notice to the holder of the permit at the most recent home or
business address on file with the Police Department, or no less than ten (10) calendar days after
deposit of the notice, addressed to the holder of the permit or certificate, in the United States
mail by certified mail. At the hearing, the holder of the permit and a representative of the Town
shall have the right to appear and to be represented by counsel, and to present evidence and
arguments which are relevant to a determination of whether grounds for suspension or revocation
of the permit or certificate exist.
(3) Decision of Police Chief. Within ten (10) calendar days after the hearing, the
Police Chief shall issue a written decision which states whether the permit is suspended or
revoked, the length of any suspension, and the factual basis for the decision, and that the holder
of the permit may appeal any suspension or revocation to the Town Manager through the
procedures set forth in paragraph (4), below. The decision of the Police Chief shall be served on
the holder of the permit by personal service at the most recent home or business address on file
with the Police Department or deposit of the notice, addressed to the holder of the permit, in the
United States mail by certified mail. Said notice shall also state that if no written request for an
appeal hearing is timely received, the applicant shall be deemed to waive its rights to an appeal
hearing.
(4) Request for appeal hearing before the Town Manager. The holder of the permit
may appeal the decision of the Police Chief by filing a written request for an appeal hearing,
which states the specific grounds on which the decision of the Police Chief is contested, with the
Town Manager's office within ten (10) calendar days of the personal service to the holder of the
permit of the Police Chief's decision at the most recent home or business address on file with the
Police Department, or within ten (10) calendar days of service of the decision by deposit of the
notice, addressed to the holder of the permit, in the United States mail by certified mail.
(5) Appeal hearing before the Town Manager. Upon receipt of a timely request for
an appeal hearing, the Town Manager's office shall notify the permit holder in writing of the
date, time and place of the hearing before the Town Manager or designee which shall not be less
than ten (10) calendar days after service of such written notice on the permit holder by personal
service at the most recent home or business address on file with the Police Department, or ten
Page 17 of 20
(10) calendar days after service of the notice by deposit of the notice, addressed to the holder of
the permit or certificate, in the United States mail by certified mail.
At the hearing, both the holder of the permit and the Police Chief shall have the right to
appear and be represented by counsel and to present evidence and arguments which ar e relevant
to the grounds for the appeal, as stated in the request for an appeal hearing. Within ten (10)
calendar days of the hearing, the Town Manager or designee shall issue a written decision that
states whether the decision of the Police Chief is upheld, modified or reversed, and the length of
any suspension. The decision shall be served on the holder of the permit by in-person delivery or
by certified mail. The decision of the Town Manager or designee shall be final.
(6) Effective date of revocation or suspension. Any suspension or revocation of a
permit shall become effective immediately upon the personal service of the written decision of
the Police Chief, or, in the event of an appeal, the Town Manager or designee, to the holder of
the permit at the most recent home or business address on file with the city, or within five (5)
calendar days of the deposit of such decision addressed to the holder of the permit into the
United States mail by certified mail.
(7) Surrender of suspended or revoked Massage Establishment Permit to Police
Chief. Upon a written decision by the Police Chief, or in the event of an appeal, by the Town
Manager or designee, which suspends or revokes a permit, the permit shall immediately be
surrendered to the Police Chief. In the case of a suspension, the Police Chief shall return the
permit after the period of suspension has ended.
Sec. 14.110.085. - Criminal penalties.
Except as specified in section 14.110.060, a violation of any provision of this Article is a
misdemeanor and may be prosecuted by the Town in the name of the people of the State of
California. The maximum fine or penalty for any violation of this Article XI shall be one
thousand dollars ($1,000.00), or a term of imprisonment in the county jail for a period not
exceeding six (6) months.
Except as otherwise provided, every such person shall be guilty of a separate offense for
each and every day during any portion of which any violation is committed, continued or
permitted by such person, and shall be punishable accordingly.
Sec. 14.110.090. - Inspection by officials.
Any sworn investigating official of the Police Department, Town of Los Gatos Code
Compliance Officer, Building Official, Town Attorney or County Fire Department officials
charged with investigating and enforcing compliance with this Article XI, shall have the right to
enter the Massage Establishment from time to time during regular business hours for the purpose
of making reasonable inspections to observe and enforce compliance with applicable regulations,
laws, codes and the provisions of this Article XL.
Page 18 of 20
Sec. 14.110.095. - Massage Establishment operated in violation of this Article is
deemed a public nuisance.
Any Massage Establishment which is opened, operated or maintained contrary to the
provisions of this Article XI shall be deemed a public nuisance. In addition to, or in lieu of any
other available legal remedies, the Town Attorney or District Attorney of Santa Clara County
may commence a civil legal action or actions in a court of competent jurisdiction to abate such
nuisance and to enjoin the continued operation and maintenance of the Massage Establishment in
a manner prohibited by this Article XL
Sec. 14.110.100. - Application of this Article XI to pre-existing Massage
Establishments.
The provisions of this Article shall be applicable to all persons and businesses described
herein. Massage Establishment Permits issued by the Town before November 1, 2016 shall not
be renewed. Persons holding such permits must submit a written application for an
Establishment Permit and comply with the establishment requirements set forth in this Chapter
and be issued an Establishment Permit as set forth in this Chapter.
SECTION II
The Town Council finds and determines that the adoption of this Ordinance is exempt
from the requirements of the California Environmental Quality Act (CEQA) per CEQA
Guidelines under the General Rule (Section 15061(b)(3)), which sets forth that the CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. It can be seen with certainty that the proposed Town Code text amendments will
have no significant negative effect on the environment.
SECTION III
If any provision of this Ordinance or the application thereof to any person or
circumstances is held to be invalid, such invalidity shall not affect other provisions or
applications of the Ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this Ordinance are severable. The Town Council
hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any
particular portion thereof and intends that the invalid portions should be severed and the balance
of the ordinance be enforced.
SECTION IV
Except as expressly modified in this Ordinance, all other sections set forth in the Los
Gatos Town Code shall remain unchanged and shall be in full force and effect.
SECTION V
This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication
of the full text of the ordinance within fifteen (15) days after its passage, a summary of the
Page 19 of 20
ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by
the Town Council and a certified copy shall be posted in the office of the Town Clerk, pursuant
to GC 36933(c),(1).
SECTION VI
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on November 1, 2016, and adopted by the following vote as an ordinance of the Town
of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on November 15,
2016.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN
SIGNED:
MAYOR OF THE TOWN OF LOS
GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Page 20 of 20
ENDNOTES