The purpose and intent of the proposed ordinance is to regulate massage establishments and massage therapy practitioners in order to protect and promote the public health, safety and welfare by providing appropriate standards for education and training of massage therapists, providing a clean, sanitary, healthy and safe environment in which massage therapy is offered to the public and recognizing massage therapy as a legitimate business occupation while promoting the public confidence therein. The proposed ordinance will replace the existing Chapter 9.41 in its entirety.

Public Safety staff has found that under the existing ordinance, massage establishments have routinely been utilized as fronts for prostitution and have operated in violation of other codes and labor laws. The revision of this ordinance provides for regulatory safeguards that are designed to reduce the opportunities for massage establishments in Sunnyvale to act as houses of prostitution and to eliminate other associated problems without interfering with legitimate massage establishments or massage therapy practitioners.

Staff recommends that Council repeal the existing Chapter 9.41 in its entirety and enact the new ordinance adding a new Chapter 9.41 in its place.

The City of Sunnyvale is authorized, by virtue of the State Constitution, and Section 51031 of the Government Code, to regulate massage establishments by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of a massage establishment.

The City needs to have effective regulations in place because massage establishments and the conduct of massage, if not properly regulated, can have serious negative effects on the health, safety and welfare of the community.

Massage establishments present an opportunity for acts of prostitution and the use and sale of illegal drugs. Such illegal activity has been documented by police reports in the City of Sunnyvale and other cities within Santa Clara County and throughout the State. The establishment of reasonable standards for issuance of permits and restrictions on operations would serve to reduce the risk of illegal activity.

Sunnyvale Municipal Code Chapter 9.41, Regulation of Massage Establishments and Massage Technicians was adopted by Council in 1989 to reduce and prevent neighborhood blight, to protect and preserve the quality of the city’s neighborhoods and commercial districts, to protect the city’s retail trade, to maintain property values, to protect and preserve the quality of urban life, to deter criminal activity, to enhance the enforcement of criminal statutes relating to the conduct of operators and employees of the establishments, and to promote the health, security and sanitation of customers.

The 1989 ordinance provided for two classes of massage practitioners: "Holistic Health Practitioner" and "Massage Technician". It also provided for two classes of massage establishments: "Holistic Health Massage Establishment" and "Massage Establishment". The purpose of the two classes was to provide one class with exemptions from certain regulations contained in the ordinance.

A "Holistic Health Practitioner" was defined in the ordinance as a massage technician who is a nonmedical health care therapist who uses a massage specialty and therapeutic approach in caring for clients. They must be a member in good standing in a state or nationally chartered organization devoted to the massage specialty and therapeutic approach. The also must have completed five hundred hours of instruction in the massage specialty and therapeutic approach at a recognized school of massage with a state-approved curriculum. In lieu of the above requirements, a person may also qualify as a "Holistic Health Practitioner" by completing two hundred fifty hours of instruction and in addition, five hundred hours of practical experience in the massage specialty and therapeutic approach in the form of paid employment in the primary office of and under direct supervision of a medical professional licensed by the state of Calofirnia.

A "Holistic Health Massage Establishment" was defined as a massage establishment in which all persons engaging in activities which require them to obtain a permit posssess the qualifications of, and have obtained valid permits as, holistic health practitioners.

A "Massage Technician" or "Massage Technician Trainee" was defined as any person who administers massages, baths, or health treatments involving massages or baths as the principal function to another person for an consideration whatsoever. In order to obtain a massage technician permit one must have a diploma or certificate of graduation from a recognized school of massage showing the applicant completed no fewer than one hundred hours of instruction. The applicant was also required to complete an oral interview with the Department of Public Safety.

A "Massage Establishment" was defined as any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on, for consideration, massages, baths or health treatments involving massages or baths as regular functions, including any establishment involving the provision of off-premises massage services, whether or not massage is performed on the premises.

In 1989 Council agreed that Holistic Health practitioners require higher educational standards and membership in state or nationally chartered organizations devoted to massage specialties. The activity engaged in by such individuals is more medically and health oriented and is not likely to give rise to the same negative impacts which have been correlated with massage establishments generally. Council decided that Holistic Health Practitioners would be exempt from certain aspect of the ordinance as follows:

1. Massage establishment which employ only holistic health practitioners would be exempt from the distance limitations generally applied to massage establishments. This would allow them to be located closer to residential neighborhoods in commercial and office areas and in closer proximity to medical offices and similar facilities.
2. Massage establishments employing only holistic health practitioners would not be restricted to industrial zones as is the case with massage establishments in general. This would again allow them to locate in commercial as well as industrial zones. It would also open up the possibility for holistic health practitioners to engage in the practice as a home occupation, if all requirements of the home occupation portion of the zoning ordinance were met.
3. Holistic health practitioners were exempt from the prohibition against off-premises massage (outcall).

Holistic health practitioners were not exempt from the licensing requirements of the ordinance nor the operational standards established for massage establishments which are aimed primarily at health, safety and sanitation issues and the issue of intrusiveness into neighborhoods.

In May, 1995, Council adopted a revision to the ordinance which added the additional requirements of a written test, demonstration of proficiency, training certificates, increased education requirements and additional definitions of acceptable training in order to obtain a massage technician license. The revision changed the requirements for massage technician to five hundred hours of nonrepetitive instruction from a recognized school of massage.

Since the May 1995 revision to the ordinance, Public Safety staff has found that problems arise with the non-holistic massage establishments and the non-holistic massage practitioners and massage practitioner trainees.

Between 1997 and 1998, there were five non-holistic massage establishments located in Sunnyvale. During this period of time, investigations into the operations of these establishments produced the following:

The proposed ordinance provides for higher educational standards for massage therapists and certification by the National Certification Board for Therapeutic Massage and Bodywork. The underlying assumption is that individuals with a significant degree of training, educational background and experience, along with the substantial investment of both time and resources involved in obtaining that background, are more likely to engage in practices which more closely resemble doctors’ offices and medical facilities than the typical "massage parlor" which is the type of establishment commonly associated with the negative impacts often attributed to massage establishments in general.

The proposed ordinance takes a different approach to massage establishment regulation than the existing ordinance. One significant change is that all massage establishments are treated similarly. There will be no separate classifications for "holistic" establishments. Another change is that massage establishments will be allowed in all zoning districts, with the exception of residential districts. The regulatory requirements under the new ordinance are designed to prevent the types of problems which have been experienced in the City of Sunnyvale, and if properly enforced, should eliminate these problems.

Another modification is that each establishment owner or operator must obtain a separate massage establishment permit, to ensure compliance with the facilities and operational requirements for that establishment. Each massage therapist or therapist trainee must obtain a separate license.

At the same time, the proposed ordinance provides safeguards in an attempt to insure that only trained and legitimate massage establishments and practitioners are allowed to operate in the city. It also eliminates the distinction between holistic health practitioner and massage technician by creating one category of massage therapist and massage therapist trainee. It is designed to be consistent with the highest standards promoted by the therapeutic massage and bodywork industry. Approximately one-half of the states have established statewide standards for licensing of massage therapists, and in most every instance they require 500 hours of supervised, in-class training and certification by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) as a minimum condition. California does not have such statewide standards, so Sunnyvale is not preempted from adopting such standards as a Charter City.

None

Council Agenda

Copy to Silicon Valley Unit of the California Chapter of the American Massage Therapy Association

Copy to Sunnyvale Public Library

Copy to Chamber of Commerce

Staff recommends Alternative 1

Prepared by:

Steven D. Pigott
Captain, Police Services

Reviewed by:

Regan G. Williams
Director, Public Safety

Approved by:

Robert S. LaSala
City Manager