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HomeMy WebLinkAbout2018-013 Council Ordinanceslst Reading: September 10, 2018 Publication: to I IL, f Zo t g 2ndReading: sPr)tPmhPr 24- 2018 Effective: t1 lS 2c CITY OF LINO LAKES ORDINANCE NO. 13-18 AMENDING CHAPTER 616 RELATING TO THERAPEUTIC MASSAGE The City Council of Lino Lakes do ordain as follows: Section 1. That Chapter 616 of the Lino Lakes Code of Ordinances be amended to read as follows: CHAPTER 616. THERAPEUTIC MASSAGE 616.01 PURPOSE AND FINDINGS The purpose of this chapter is to regulate massage therapists and therapeutic massage businesses. Therapeutic massage businesses are subject to abuses that are contrary to the morals, health, safety and general welfare of the community. Control of these abuses requires efforts on the part of the City and its Public Safety Department. 616.02 DEFINITIONS. For the purpose of this chapter, the terms defined in this section shall have the following meanings ascribed to them. Accredited Institution An educational institution holding accredited status approved by the United States Department of Education or the Minnesota Office of Higher Education. Applicant: Any corporation, partnership, or other business or individual filing an application with the City seeking a massage therapist or therapeutic massage business license pursuant to this chapter. Client: An individual receiving therapeutic massage services. Department: The Public Safety Department. Director: The Director of the Public Safety Department or his or her duly -appointed designee. Employees: All employees, agents, contractors, or other persons associated with a therapeutic massage business who spend a significant amount of time on the premises of a therapeutic massage business or who assist in or administer therapeutic massage services, whether or not on the premises. A self-employed massage therapist is considered to be an Employee for purposes of this chapter. L., Licensee: The holder of a license to operate a therapeutic massage business or work as a massage therapist. Massage Therapist: A person who practices or administers therapeutic massage services: who has completed 500 hours of certified therapeutic massage training with content that includes the subjects of anatomy, physiology, hygiene, ethics, massage theory and research, and massage practice from an accredited institution or program or institution licensed or registered by a state licensing board or agency that has been approved the issuing authority. In the event the accredited program or accredited institution is no longer in existence, in the sole discretion of the city, a certified copy of the transcript of academic record may be accepted directly from the applicant with an affidavit stating said transcript of academic record is authentic. The transcript of academic record must be from a program or institution that was once accredited and approved by the issuing authority. The certified copy of the transcript of academic record must contain the applicant's name, last address of the accredited institution at the time of closing, and reflect the 500 hours of certified therapeutic massage training with content that includes the subjects of anatomy, physiology, hygiene ethics, massage theory and research, and massage practice as required. Premises: The physical location(s) identified by the applicant where therapeutic massage services are to be administered, excluding hospitals, sanatoriums, rest homes, nursing homes, boarding homes, or other institutions for the hospitalization or care of human beings, duly licensed under the provisions of Minnesota Statutes, Sections 144.50 through 144.69, and also excluding locations where therapeutic massages services are only sporadically administered, such as the homes of therapeutic massage clients. The home of a massage therapist where therapeutic massage services are regularly administered constitutes a licensed premises. Therapeutic Massage Business: Operation of a business that employs and/or contracts with massage therapists to administer therapeutic massage services for a fee, including self- employed massage therapists, and other than a hospital, sanatorium, rest home, nursing home, boarding home, or other institution for the hospitalization or care of human beings, duly licensed under the provisions of Minnesota Statutes, Sections 144.50 through 144.69, whether or not the therapeutic massage services are rendered at the licensed premises. This does not include massage therapists working under the supervision of a licensed medical practitioner. Therapeutic Massage Services: The rubbing, stroking, kneading, tapping, or rolling of the body of another with the hands or objects for the exclusive purpose of physical fitness, relaxation, or beautification, and for no other purpose, including specified sexual activities defined in section 614.02 of this title. 616.03 LICENSE REQUIRED. Except as provided for by Minnesota Statutes, Section 471.709, no individual shall practice, administer or provide therapeutic massage services to the public, and no corporation, partnership, other business or individual shall engage in the business of operating a therapeutic massage business as defined in Section 616.02 of this chapter, either exclusively or in connection with any other business enterprise, without first obtaining a license issued by the city. 616.04 APPLICATION FOR LICENSE; LICENSE FEE L (1) Application. An application form for a massage therapist or therapeutic massage business license shall be made available by the City Clerk. In addition to the general licensing application requirements included in Section 601.02 of this Code, each written application for a massage therapist or therapeutic massage business license shall contain the following: (a) If the application is made on behalf of a corporation, partnership, or other business, it shall be accompanied by appropriate business records showing the names and addresses of all individuals having a pecuniary interest in the business and, in the case of a corporation, the names and addresses of the officers and shareholders. (b) If the applicant intends to utilize a Premises to provide therapeutic massage services, applicant shall furnish to the city the address of the Premises and the city zoning designation for the Premises, as well as the applicant's interest in the Premises, such as a lease, deed, or contract for deed. If the application is by a natural person, it shall be signed and sworn to by that person; if by a corporation, by one of the officers; if by a partnership, by one of the partners, and if by an unincorporated association, by the manager or managing officer thereof. (c) Personal history form(s) providing information to the Department for the purpose of conducting a background check on all anticipated Employees and the individuals identified in Section 616.04, subd. 1(a) of this chapter. (d) Verification that all Employees anticipated to perform therapeutic massage services on behalf of the therapeutic massage business are certified or have experience defined in Section 616.06, subd. 6 of this chapter. (e) Whether the applicant has ever been engaged in the operation of massage services. If so, the applicant shall furnish information as to the name, dates, place and length of time of the involvement in such an establishment. (f) Whether the applicant has had an interest in, as an individual or as part of a corporation, partnership, association, enterprise, business or firm, a massage license that was denied, revoked or suspended within the last 10 years of the date the license application is submitted to the issuing authority. (g) Whether the applicant has ever been arrested, charged or convicted of any crime or violation of any ordinance other than a minor traffic offense. If so, the applicant shall furnish information as to the date, time and offense for which arrests, charges or convictions were had. (h) Whether the applicant has ever been the subject of an investigation, public or private, criminal or non -criminal, regarding massage therapy. (i) Applicant is responsible for reading and understanding the City ordinance regarding therapeutic massage and for communicating and providing interpretation when necessary to all massage therapists licensed at the enterprise to ensure compliance. (2) License, Background and Miscellaneous Fees. A fee in the amount specified in the city's ordinance establishing fees and charges shall be paid to the city along with the completed application form. In the event that the license is denied upon application, the license fee shall be refunded; however no part of the license investigation fee shall be returned to the applicant. No part of the annual license fee shall be refunded if the license is suspended, revoked, or discontinued. The initial license fee may be prorated. The licensee shall be responsible for any city costs in enforcing the license provisions including but not limited to re -inspection fees and attorney fees. (3) Establishment Licensing/Individual Licensing. An applicant may apply for both a therapeutic massage business license and massage therapist licenses for its Employees. (4) License Term; Renewal. Each license shall be issued for a maximum period of one year. Each license may be renewed only by making application as provided in Section 616.04 of this chapter. All licenses expire on June 30 of each year. 616.05 CONDITIONS GOVERNING ISSUANCE; APPLICANT DATA The city has established the following conditions governing the issuance of massage therapist and therapeutic massage business licenses. The city is empowered to conduct any and all investigations to verify applicant data, including ordering a computerized criminal history inquiry and/or a driver's license/identification history inquiry on the applicant, anticipated Employees, and all individuals identified in Section 616.04, subd. 1(a) of this chapter. The city council or Chief of Police or his or her designee may order and conduct such additional investigation as it deems necessary. The City Council shall consider the issuance of a license to an applicant within 30 days after receipt of an application unless one or more of the following, or any of the conditions in Section 616.06, are found to be true: (1) The applicant is under 18 years of age. (2) The applicant is delinquent in his or her payments to the city of taxes, fees, fines or penalties assessed against him or her. (3) The applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form. (4) The applicant is unable to provide photo identification issued by a federal, state or territory of the United States of America. This includes a valid passport, state -issued driver's license, or other official form of identification (5) The Premises has not been approved for occupancy and use by the appropriate city personnel or is not in compliance with all applicable laws and ordinances. (6) The license fee required by this chapter has not been paid. (7) Has had an interest in, as an individual or as part of a corporation, partnership, association, enterprise, business or firm, a massage license that was denied, revoked or suspended within the last 10 years of the date the license application is submitted to the issuing authority. (8) Has been arrested, charged or convicted of any crime directly related to the occupation licensed as prescribed by Minn. Stat. § 364.03, subd. 2, and who has not shown competent evidence of sufficient rehabilitation and present fitness to perform the duties and responsibilities of a licensee as prescribed by Minn. Stat. § 364.03, subd. 3 (9) Is the spouse of a person whose massage -related license has been denied, suspended or revoked in the past 10 years. 616.06 CONDITIONS GOVERNING ISSUANCE; APPLICANT AND OTHER DATA If the applicant meets the criteria in Section 616.05, the City Council shall consider the issuance of a license to an applicant within 30 days after receipt of an application unless any one of the following apply to the applicant, its anticipated Employees, or any of the individuals identified in Section 616.04, subd. 1(a) of this chapter: (1) Conviction of a felony within five (5) years of the date an application for a license is filed with the city. (2) Conviction, charge or arrest of any sexually oriented crime or ordinance violation, including, but not limited to, Minnesota Statutes Sections 609.321-.324, 617.241, 617.293-.294, 617.246-.247, 617.23, 609.342-.345, 609.365, or criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses within five (5) ten (10) years of the date an application for a license is filed with the city. Has been determined to have engaged in any conduct prohibited by Minnesota Statutes Section 146A.08, as it may be amended from time to time, within five (5) years of the date an application for a license is filed with the city. (4) Under requirement to register as a predatory offender under Minnesota Statutes Section 243.166, or any similar law in Minnesota or elsewhere, within ten (10) years. (5) Have had a massage therapist or therapeutic massage business denied or revoked by a state, city or other licensing authority within five (5) ten (10) years.. (6) Has been ordered to pay civil penalties by a state, city or other licensing authority within five (5) years. (3) (7) Cannot provide proof of their eligibility to work in the United States. (8) Failure to provide a transcript from an Accredited Institution. (8) Fail to meet one of the following criteria: (a) Current certification from National Certification Board for therapeutic Massage and Bodywork; or (b) Membership with the American Massage TL.er..py n ssociation (n MT n Associated Bodywork and Massage Professionals (ABMP); or L L., (c) Graduation from an educational institution which is either registered with the MN Higher Education Office, or recognized by one of the accredited professional association:, listed above, is a member of AMTA or ABMP. With respect to (1)-(8) of this Section, a pending appeal shall have no effect on the determination whether to issue a license. 616.07 RESTRICTIONS ON LICENSE; REGULATIONS (1) Inspection. No therapeutic massage business that operates out of a Premises .shall be granted a license or renewal of a license without passing a city inspection to determine compliance with this chapter. Compliance shall be determined in accordance requirements set forth in Section 616.08 of this chapter. (2) Minors. No person shall give, or assist in the giving, of any therapeutic massage services to any person under the age of eighteen (18) years, unless the parent or guardian of such minor person has consented thereto in writing. (3) List of Services. The licensee or a designated Employee or individual identified in Section 616.04, subd. 1(a) of this chapter shall post or provide to the client a list of services available and the cost of each. No massage therapist shall offer or perform any service other than those posted or listed. (4) Complementary and Alternative Health Care Client Bill Of Rights. Prior to providing therapeutic massage services, the licensee or a designated Employee or individual identified in Section 616.04, subd. 1(a) of this chapter must provide clients with the complementary and alternative health care client bill of rights as stated by Minnesota Statutes, must have the client sign a written statement attesting that the client has received the statement, and must comply with all other requirements of state law in chapter 146A or other applicable law. The licensee or a designated Employee or individual identified in Section 616.04, subd. 1(a) of this chapter must post a copy as required by law and ensure compliance with the statutory provisions. (5) Compliance with Law. The licensee, Employees, and individuals identified in Section 616.04, subd. 1(a) of this chapter shall comply with applicable ordinances, regulations, and laws of the city, the state of Minnesota, and the United States. (6) Hours of Operation. Massage therapists shall not perform therapeutic massage services nor shall clients be permitted on a Premises between the hours of 11:00 10:30 p.m. and 8:00 a.m. (7) Posting of License. The license, if granted, shall state on its face the name of the licensee, the expiration date, and the address of the Premises. The license shall be posted in a conspicuous place at or near the entrance to Premises so that it may be easily read at any time. Transient individual massage therapists must provide a copy of their current license when performing therapeutic massage services within the city upon request. (8) Transfer of License Prohibited. A licensee shall not transfer his or her license to another, nor shall a licensee change the location of a Premises under authority of a license without providing the city with notice of a change in location prior to such a change occurring. L., L., (9) Windows. The exterior windows of the commercial Premises must not be one hundred percent (100%) opaque during hours that the Premises is open for business, except for windows in massage rooms and restrooms. (10) Advertising. No licensee shall advertise through any media that is classified for adults only or for sexually oriented business or similar classification, or use any advertising that refers to therapeutic massage services as appealing to or satisfying an erotic or prurient interest, lust, sexual or passionate desire. (11) Clients. Clients shall at all times have his/her anus, intergluteal cleft (buttocks crease) and genitals covered with clothing or properly draped with nontransparent material. The person who is receiving massage therapy of the breast or buttocks (gluteal) shall have the breast or buttock (gluteal muscle) that is not then immediately receiving massage therapy properly covered and draped with nontransparent material. (12) Habitation: Massage enterprise shall not contain nor allow the use by any person of sleeping quarters or living spaces of any kind intended for habitation, including but not limited to beds, cots or mattresses. 616.08 INSPECTION. (1) Inspection Access. The applicant or licensee shall permit the Director or his/her authorized representative to inspect the Premises for the purpose of ensuring compliance with the law, at any time the therapeutic massage business is occupied or open for business. (2) Requirements. The applicant and licensee shall meet the following requirements: (a) A therapeutic massage business must take reasonable steps to prevent the spread of infections and communicable diseases on the Premises. (b) Premises must be equipped with adequate and conveniently located toilet room(s) for the accommodation of its Employees and Clients. The toilet room(s) must be well ventilated by natural or mechanical methods and be enclosed with a door. The toilet room(s) must be kept clean and in good repair and be fully and adequately illuminated. (c) A therapeutic massage business must provide single service disposal paper or clean linens to cover the table, chair, furniture or area on which the Client receives the therapeutic massage services and must be sanitized after each administration of therapeutic massage services. (d) Therapeutic massage tables, chairs or furniture on which the Client receives therapeutic massage services must have surfaces that can be readily cleaned and disinfected after each massage. All modalities shall be performed on a raised massage therapy table or chair; no bed, mattress or similar type equipment shall be allowed onsite. (e) The massage therapist must wash his or her hands and arms with water and soap, antibacterial scrubs, alcohol or other disinfectants prior to and following each administration of therapeutic massage services. L., (f) Rooms in a Premises must be fully and adequately illuminated. (g) A Premises must have a janitor's closet that provides for the storage of cleaning supplies. 144.411 et seq. (h) Premises must provide adequate refuse receptacles. (i) Premises must be maintained in good repair and sanitary condition. (j) Premises must comply with the requirements of Minnesota Statutes Section (k) Any massage therapist shall at all times be dressed professionally,. 616.09 GROUNDS FOR SUSPENSION OR REVOCATION. (1) Suspension. The City Council may suspend a license for a period not to exceed sixty (60) days if it is determined that a licensee, an Employee, or an individual identified in Section 616.04, subd. 1(a) of this chapter: (a) Violated any provisions of this chapter; (b) Engaged in excessive use of alcoholic beverages or use of illegal drugs while on the Premises, or prior to or while administering therapeutic massage services; (c) Refused to allow an inspection of the Premises as authorized by this chapter; (d) Demonstrated inability to operate or manage the therapeutic massage business in a peaceful and law abiding manner thus necessitating action by law enforcement officers; (2) Revocation. The City Council may revoke a license if a cause of suspension in Subdivision 1 of this section occurs and the license has been suspended within the preceding twelve (12) months, or if any of the following are true: (a) A licensee gave false or misleading information in the material submitted during the application process. (b) A licensee, Employee, or individual identified in Section 616.04, subd. 1(a) of this chapter knowingly allowed illegal possession, use, or sale of controlled substances on the Premises. (c) A licensee, Employee, or individual identified in Section 616.04, subd. 1(a) of this chapter knowingly operated the therapeutic massage business during a period of time when the licensee's license was suspended. (d) A licensee is convicted, charged or arrested of any offense listed in Section 616.06 of this chapter, or if any subdivision (3), (5), or (6) of Section 616.06 are true (e) A licensee permits an Employee to perform therapeutic massage services for the therapeutic massage business, when the licensee knows that that person has been charged or convicted of any offense listed in Section 616.06 of this chapter, or, with respect to that person, if any of subdivisions (3), (5), or (6) of Section 616.06 are true. (e) The licensee is delinquent in his or her payments to the city of taxes, fees, fines or penalties assessed against him or her. (3) Conviction Appeal. A pending appeal of a conviction shall have no effect on, nor an appeal of anything in subdivisions (3), (5) or (6) of Section 616.06 shall have no bearing on, the suspension or revocation. (3) No license shall be suspended or revoked unless the licensee has been given written of the hearing and shall state the nature of the charges against the licensee. The City Council may, without any advance notice or he ring, eHa a 'icense „endi„g a hearing on revocation for a period not exceeding 15 days. (4) Neither the charging of a criminal violation nor a criminal conviction is required in order for the city council or issuing authority to impose an administrative penalty or suspend, deny or revoke a license. (5) Previous License Infractions. In the event there is a license infraction or a pending citation involving a Licensed establishment and/or a licensed massage therapist, the city may, at its option, choose to not to take action on any license or renewal application until such infraction or pending citation has been resolved. The applicant for a massage enterprise license or massage therapist license may not be eligible to reapply for a license for a period of five years if the licensee is arrested, charged or convicted of any violation of the ordinance. 616.10 SUSPENSION OF LICENSE FOR VIOLATIONS The Chief of Police or his or her designee may immediately suspend a license, pending a hearing before the City Council, if the licensee, or any person working on behalf of the licensee, is determined to be conducting business in an unlawful manner, any manner that constitutes a breach of the peace or a menace to the health, safety, or general welfare of the public, or after repeated complaints received regarding conduct of business practices or method of solicitation. Section 2. This ordinance shall be in force and effect from and after its passage and publication according to the Lino Lakes City Charter. Adopted by the Lino Lakes City Council this day of , 2018.. The motion for the adoption of the foregoing ordinance was introduced by Council Member and was duly seconded by Council Member and upon vote being taken thereon, the following voted in favor thereof: The following voted against same: ATTE Bartell, City C erk Jeff Reinert :" or