Loading...
HomeMy WebLinkAboutAmending Chapter 7 Regulation the Practice of MassageORDINANCE No. 6089 -76 Passed by the Common Council of the City of South Bend, December 13 __ 76 IRENE K. GAMMON d- Presented by me to the Mayor of the City of South Bend, December 14 1976 Clerk of Common Council IRENE K. GAMMON Approved and signed by me LQL-e_a_.,,,,,l"a ) / 4 -p 19 ? �#— Clerk ORDINANCE NO. %O g q --i (o AN ORDINANCE AMENDING CHAPTER 7 OF THE MUNICIPAL CODE OF THE CITY OF SOUTH BEND, INDIANA, BY THE ADDITION OF ARTICLE 9 PERTAINING TO THE REGULATION OF MASSAGE ESTABLISHMENTS, MASSAGE TECHNICIANS, AND THE PRACTICE OF MASSAGE BE IT ORDAINED by the Common Council of the City of South Bend, Indiana: SECTION I: That Chapter 7 of the Municipal Code of the City of South Bend, Indiana, shall be amended by the addition of Article 9 to read as follows: ARTICLE 9. THE REGULATION OF MASSAGE ESTABLISHMENTS, MASSAGE TECHNICIANS, AND THE PRACTICE OF MASSAGE. Sec. 7 -110. Definitions. (a) "Massage" means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus, with or without supplement- ary aids such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, ointments, or other similar preparations commonly used in the practice of massage. (b) "Massage establishment" means any establishment having a fixed place of business where any person engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on, massages or baths. (c) "Massage technician" means any person who, for any form of consideration whatsoever, gives or administers a massage or bath to a patron. (d) "Person" means any person, association, firm, partnership or corporation. (e) "Patron" means any person who receives a massage or bath from a massage technician. (f) "Recognized school of massage" means any school or institution of learning which has for its purpose the teaching of the theory, ethics, practice, method, profession, or work of massage technicians; which school or institution of learning has been ap- proved by the American Massage and Therapy Association, or has a program which requires a resident course of study of not less than one thousand (1,000) hours to be given in not less than six (6) calendar months before the student shall be furnished with a di- ploma or certificate of graduation from such school or institution of learning showing the successful comple- -1- tion of said course. Schools offering a correspondence course not requiring actual attendance of class shall not be deemed a recognized school. Sec. 7- 112. Massage Establishment License Required. It shall be unlawful for any person to engage in, conduct, or carry on, in or upon any premises within the City of South Bend the business of a massage establishment without a license issued pursuant to the provisions of this ordinance for each and every such massage establishment. A. Application 1. Contents An application for a license to operate a massage estab- lishment shall be filed with the Board of Public Works upon forms provided by the City Controller's Office, and such application shall be verified under oath. 2. The filing of an application for a license does not authorize conducting a massage establishment business until such license has been granted. 3. Each applicant shall furnish the following information; (a) The legal name of the applicant. (b) The present address and telephone number of the applicant. (c) The previous addresses, if any, for a period of three (3) years immediately prior to the date of application and the dates of such residence. (d) The date of birth. (e) Three (3) passport size photographs one inch by one inch (1" x 1 ") taken within six (6) months of the date of application. (f) The business, occupation, or employment history for three (3) years immediately preceding the date of application, including but not limited to, whether such person previously operating under a permit or license in another city in this or another state has had such license suspended or revoked, the reason therefor and the business activity or occupa- tion subsequent to such action of suspension or re- vocation. (g) All convictions, including ordinance violations, exclusive of traffic violations, with a brief statement of the nature of the convictions and the jurisdiction in which the convictions occurred. (h) If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation, and the names and addresses of each of its current officers, directors, and each stockholder who owns fifteen percent (15 %) or more of the stock of the corporation and the application shall be verified by an officer of the corporation. If the applicant is a partnership, the application shall set forth the name and residence -2- address of each of the partners, including limited partners, and the application shall be verified by each partner. If one or more of the partners is a corporation, the provisions of this section pertain- ing to a corporate applicant shall apply to the corporate partner. If the applicant is neither a corporation nor a partnership, the application shall set forth the full name and address of the applicant and be verified by the applicant. The application for massage establishment license shall set forth the proposed place of business and the facilities therefor, together with a detailed description of the nature and scope of the proposed business operation. B. Review and Recommendations Application for licenses under this ordinance shall be re- ferred to the proper offices for formal review and recommen- dation and each shall report their findings to the Board of Public Works. Applicants shall cooperate with any review con- ducted pursuant to the provisions of this ordinance and shall permit access to the proposed place of business and facilities in conjunction with any such review. C. Public Hearing and Notice Upon the filing of an application, the Board of Works shall fix a time and place for a public hearing thereon. Written notice of hearing shall be given to the applicant. Due notice shall also be given to the general public by publication of such notice one (1) time in a local newspaper of general cir- culation. Any interested person may file with the Board of Public Works a memorandum in support of or in opposition to the issuance of a license. D. Granting of License Within thirty (30) days of the receipt of an application and after proper publication and receipt of the aforesaid recommen- dations,the Board of Public Works shall conduct a public hear- ing and shall instruct the City Controller to issue a license to operate a massage establishment if it is found that: 1. The application reasonably conforms to the provisions of this ordinance. 2. The applicant has not knowingly made a material misrepre- sentation in the application for a license. 3. The applicant has reasonably cooperated in the review of his application. 4. The massage establishment as proposed by the applicant would comply with all applicable laws, including but not limited to the City's building, zoning, health, fire and safety re- gulations. 5. The applicant if an individual, or any of the stockholders of the corporation, any officers or directors, if the applicant is a corporation, or any of the partners, including limited partners, if the applicant is a partnership have not been convicted of any crime involving unlawful deviate conduct,.deviate sexual conduct, or unlawful sexual conduct as defined in Title 35 of the Indiana Code, within three years (3) prior to the date of application. -3- 4 E. F. G. Sec 6. The applicant has not had a massage establishment license or a massage technician permit or other similar license or permit denied or revoked for cause by this City or any other City located in or out of this State within the three (3) years prior to the date of application. 7. The applicant, if an individual, or any of the officers and directors, if the applicant is a corporation, or any of the partners, including limited partners, if the applicant is a partnership is eighteen (18) years of age. 8. The applicant, if a corporation, is licensed to do business and in good standing in the State of Indiana. 9. The massage establishment as proposed by the applicant would comply with the requirements of this ordinance. License Fee 1. The fee for an annual license to operate a massage estab- lishment shall be fifty dollars (50.00) payable to the City Controller at the time of the issuance of said license. 2. The annual license shall be effective from January 1st to December 31st of the year for which the license is issued. 3. The license to, operate a massage establishment shall in- clude the following: (a) the name and address (b) the name and address (c) the date of issuance Denial of the applicant of the massage establishment 1. If a license to operate a massage establishment is not issued, the application shall be denied. 2. The unsuccessful applicant may appeal to the Mayor for a hearing pursuant to Section 1 -18 of the Municipal Code. Hearing and Procedure on Appeal 1. After proper notice, the applicant for a license to operate a massage establishment may be present and may be accompanied by an attorney or any other represenative. The Mayor shall conduct a full hearing and determine whether or not such license shall be granted. 2. In conducting the hearing, the applicant may adduce such evidence before the Mayor as may be applicable in the case. In reaching his decision, the Mayor shall give due considera- tion to any such facts to determine the qualifications of the applicant to meet the requirements set out in Sec. 7 -112. 3. In conducting such hearings, the Mayor shall not be bound by the judicial rules of evidence, but may admit such evidence which in his discretion he feels will aid him in reaching his decision. 7 -113. Massage Technician Permit Required. It shall be unlawful for any person to act as a massage tech- nician unless he has a valid permit issued pursuant to the provisions of this ordinance. �C A. Application 1, Contents An application for a permit to act as a massage technician shall be filed with the City Controller upon forms pro- vided by the City Controller's Office and such application shall be verified under oath. 2. The filing of an application for a permit does not authorize acting as a massage technician until such permit has been granted. 3. Any applicant for a massage technician permit shall furnish all the information required by Article 9, Sec.7" 112 A3 through(h)of the South Bend Municipal Code. In addition, the applicant shall furnish proof of the following: a. Certificate from a medical doctor, licensed to practice in the State of Indiana, stating that the applicant has within thirty (30) days immediately preceding the date of application been examined and found to be free of any contagious or communicable diseases. b. A diploma or certificate of graduation from a "recognized school" if any. C. The massage establishment, if any, at which the applicant expects to be employed. B. Review and Recommendations Applications for permits under this ordinance shall be re- ferred to the proper offices for formal review and re- commendations and each shall report their .findings to the City Controller's Office. C. Granting of Permit Within thirty (30) days of receipt of the application and aforesaid recommendations the City Controller shall issue a massage permit if it is found that: 1. The application reasonably conforms to the provisions of the ordinance. 2. The applicant has not knowingly made a material misre- presentation in the application for a permit. 3. The applicant has reasonably cooperated in the investiga- tion of his application. 4. The applicant has not withinthree (3) years immediately preceding the date of application been convicted of the crimes of unlawful deviate conduct, deviate sexual conduct or un- lawful sexual conduct as defined in Title 35 of the Indiana Code. 5. The applicant has furnished an acceptable diploma or cer- tificate of graduation from a "recognized school" or in lieu thereof has demonstrated competence and proficiency to the satisfaction of the City Controller through continuous ex- perience as a massage technician for a three (3) year period prior to the date of application. 6. The applicant has not previously had a massage technician permit or similar permit or license denied or revoked for cause by this city or by any other city in this or any other -5- state within three (3) years of the date of application. 7. The applicant is eighteen (18) years of age. D. Permit Fee 1. The fee for an annual permit to act as a massage technician shall be fifty dollars ($50.00) payable to the City Controller at the time of the issuance of such permit. 2. The annual permit shall be effective from January 1st to December 31st of the year for which the permit is issued. E. Denial 1. If the application is denied, the applicant may request a personal appearance before the Board of Public Works to offer evidence as to why his application should be reconsidered. Said hearing shall be conducted by the Board in accordance with the governing procedures for public hearings. 2. The Controller shall submit in writing to the Board his reasons for denying the application. Sec. 7 -114. Massage Establishment Facilities. Every massage establishment shall maintain facilities meeting the following requirements. (a) Zoning: Every massage establishment shall be operated or conducted only in districts permitted by the City Zoning Code, Chapter 21 of the South Bend Municipal Code. (b) Sign: A recognizable and legible sign shall be posted at the main entrance identifying the establishment as a massage establishment. It shall comply with all applicable ordinances and State laws on sign requirements. (c) Security Lockers: Every massage establishment shall be equipped with security lockers capable of being locked by the patron. A sufficient number of security lockers shall be provided so that each patron may properly secure and store his clothing and other personal valuables. (d) If male and female patrons are to be served simultaneously, such massage rooms, dressing facilities, restroom facilities, steam rooms, and sauna rooms as are provided shall be separate facilities for male and female patrons and each separate facility or room shall be clearly marked as such. Said separated facilities shall consist of the following: one (1) shower; one (1) washbasin; one (1) restroom facility; one (1) dressing facility and one (1) massage room incapable of being locked from the interior. (e) Facilities for Employees: A minimum of one (1) separate washbasin shall be provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times and shall be located within or close as practical to the area devoted to the per- forming of massage services.. In addition, there shall be provided sanitary towels in permanently installed dispensers at each washbasin. (f) Size and Lighting: Minimum lighting shall be provided in accordance with the Municipal Building code, and in addition, at least one artificial light of not less than forty (40) watts shall be provided in each room or enclosure where massage services are performed on patrons. Such rooms shall have at least fifty (50) square feet of clear floor area. (g) Ventilation: Minimum ventilation shall be provided in accordance with the Municipal Building Code. (h) Equipment: All equipment necessary to properly furnish and maintain a massage establishment pursuant to the standards set forth by the American Massage and Therapy Association shall be incorporated herein. (i) Health Code: All Health Code provisions regulating business establishments shall be incorporated herein. Sec. 7 -115. Massage Establishment Operation. Every massage establishment and every massage technician shall comply with the following operating requirements. These requirements shall be prominently and publicly displayed in a conspicuous place upon every premise licensed under the provisions of this ordinance. (a) Massage establishments shall commence operations no earlier than 7:00 A.M. and the hours of operation shall extend no later than 12:00 Midnight. (b) Massage establishments and massage technicians therein shall prominently and publicly display on the premises their respective licenses and permits during all hours of operation. (c) A list of services available and the cost of such services shall be posted in an open, public place on the premises, and shall be described in readily understandable language. No owner, operator, responsible managing employee or manager shall permit and no massage technician shall offer to perform any services other than those posted. (d) Massage establishments shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens. Clean towels, coverings and linens shall be stored in cabinets. Towels and linens shall not be used on more than one (1) patron unless they have first been laundered and disinfected. Disposable coverings and towels shall not be used on more than one (1) patron. Soiled linens and paper towels shall be deposited in approved receptacles. (e) Wet and dry heat rooms, steam or vapor rooms or cabinets, shower rooms and compartments, restrooms and pools shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open, with a disin- fectant approved by the Health Department. Bathtubs shall be thoroughly cleaned with a disinfectant approved by the Health Department after each use. All walls, ceilings, -7- floors, and other physical facilities for the estab- lishment must be in good repair and maintained in a clean and sanitary condition. (f) Instruments utilized in performing massage shall not be used on more than one (1) patron unless they have first been sterilized using approved sterilizing equip- ment. Massage table pads and reusable table coverings shall be disinfected between each massage with approved chemicals. Chemicals used during massage shall be stored separately in containers clearly labeled as to contents. All chemical containers shall be stored in cabinets re- served solely for such purpose. (g) Massages shall not be given unless patrons are wearing clothing fully covering their genitals and female patrons are in addition wearing clothing fully covering their breasts. Where such clothing is furnished patrons by the massage establishment, it shall not be used by more than one (1) patron unless it has first been laundered and disinfected. Massage technicians shall be fully clothed from the knee to the neck in clean light colored clothing. (h) No persons shall enter, be or remain, in any part of a massage establishment while in the possession of, consuming, or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, or manager shall not permit any such person to enter or remain upon such premises. (i) Massages shall not be given to patrons who have open sores or other visual signs of contagion or communicable disease. Sec. 7 -116. Inspections. Building inspectors, firemen, and health officers shall at least twice each year make an inspection of each massage establishment in the City for the purpose of determining that the provisions of this Code are met. Such inspections shall be conducted after reasonable notice is given to the owner or operator of a massage establishment; they shall take place during the hours such establishment is open for business; and only upon the showing of proper credentials of such persons, All other investigatory power such officers may have from state laws shall be incorporated herein. Sec. 7 -117. Sale or Transfer. Upon the sale or transfer of any interest in a massage estab- lishment, the license shall be null and void. Any person desiring to continue to operate such massage establishment following sale or transfer shall file an application with the Board of Public Works in accordance with this ordinance. Sec. 7 -118. Grounds for Revocation or Suspension of License or Permit. (a) Massage establishments and massage technicians shall be subject to all pertinent City and County ordinances and the State of Indiana Statutes and violation of any such laws shall be grounds for the suspension or revocation of licenses or permits. (b) It shall be unlawful for any person to operate a massage establishment without having a license therefor as required by this Article. (c) It shall be unlawful for any person to act as a massage m technician without having a permit therefor as required by this Article. (d) It shall be unalwful for any person who operates a massage establishment to allow or permit persons to act therein as massage technicians without first having a permit therefor as required by this Article. (e) It shall be unlawful for any person to act as a massage technician within a massage establishment which does not have a license therefor as required by this Article. (f) It shall be unlawful for any massage technician to massage or offer to massage the genital area of any patron or the breasts of any female patron or for any operator of a massage establishment to allow or permit such massage or offer to massage in such massage estab- lishment, or for any patron to permit such massage upon his body. Sec. 7 -119. License or Permit Suspension or Revocation. (a) No license or permit may be suspended or revoked until after due notice and hearing before the Board of Public Works. to determine if grounds for such exist. Notice of such hearing shall be in writing and served at least ten (10) days prior to the date of hearing by personally serving the person in charge of the massage establishment and by personally serving the massage technician in the instance of a permit suspension or revocation. The notice shall state the grounds of the complaint against the licensee and shall designate the time and place where the hearing will be held. Suspension or revocation hearings shall - p ig gvgne by the s aaAdards set forth in Secs. 1 -18 (b) tiny massage eNa s min ghse or massage technician permit may be suspended for no more than ninety (90) days or revoked by the Board of Public Works for any violation of this Article or for any grounds that would warrant the denial of issuance of such license or permit in the first place. (c) Written notice of such revocation or suspension, together with the ieasons therefor shall be given by the City Controller to license holder or permit holder at his last known business address. Sec. 7 -120. Conducting as a Nuisance. Any massage establishment operated, conducted, or maintained contrary to the provisions of this Article shall be unlawful and declared a public nuisance. The City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action for the abatement, removal or enjoinment therefore, in the manner provided by law; and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such massage establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this Article. Sec. 7 -121. Penalty. Any person who violates any provision of this Article shall be subject, upon conviction, to a fine of not less than fifty dollars ($50) nor more than three hundred dollars ($300) or by imprisonment not exceeding six (6) months or both. The violation of any provision of this Article shall constitute d� a separate offense for each and every day such violation may exist. Sec. 7 -122. Expiration of Licenses and Permits. All licenses or permits issued pursuant to the provisions of this ordinance shall expire on the last day of the calendar year. All practicing massage technicians or operators of massage establishments on the effective date of this ordinance shall immediately be subject to its provisions. Sec. 7 -123. Exemptions. This Article of the South Bend Municipal Code shall have no application and no effect to the following: (a) Hospitals, nursing homes, sanitariums or other health care facilities licensed under the State of Indiana, and physicians, surgeons, chiropractors, osteopaths or physical therapists licensed or registered to practice their respective profes- sions under the laws of the State of Indiana, or nurses registered under the laws of the State of Indiana acting under their direct and control. (b) Barber shops and beauty parlors, barbers and beauticians licensed under the laws of the State of Indiana provided that such massage as is practiced is limited to the head and scalp. (c) Accredited high schools and colleges and coaches and trainers therein while acting within the scope of their employment. SECTION II. Severability. If any provision, section or part of any section of this ordinance is declared to be invalid or unconstitutional, such declaration shall not be construed to affect any of the other provisions, sections or parts of sections herein, and the remainder of the ordinance shall not thereby be invalidated. SECTION III. This Ordinance shall be in full force and effect from and after its passage by the Common Council, approved by the Mayor and legal publication. Jg READING i 3 PUBLIC HEARING 2nd READING NOT APPROVED REFERRED PASSED i 3 - 7 \ a -10- FILED IN CLERK'S OFFICE Irene Gammon CITY CLERK. SOUTH RENO, iNU. CITY OF SOUTH BEND COMMON COUNCIL JOSEPH T. SERGE First District WALTER M. SZYMKOWIAK Second District TERRY S. MILLER Third District ROGER O. PARENT Fourth District ROBERT G. TAYLOR Fifth District WALTER T. KOPCZYNSK1 Sixth District MARY CHRISTINE ADAMS At Large RICHARD C. DOMBROWSKI At Large FRANK HORVATH At Large CITY OF SOUTH BEND South Bend, Indiana 46601 November 17, 1976 AREA 219 284 -9321 441 COUNTY -CITY BUILDING SOUTH BEND, INDIANA 46601 Common Council Members 4th Floor County -City South Bend, Building Indiana 46601 Dear Council Member: Attached is the signed massage bill which was request- ed by the City Council after it became clear that the City Administration's bill would have to be drastically amended to meet the standards of the Council. The Council members and the Council attorney worked many hours to draft a bill which will, to a great degree, protect the legitimate interests of professional massage establishments, masseuses and masseurs, while controlling very stringently massage establishments which are a community nuisance. Effective, practical legislation which is easy to enforce and is protective of the citizens' constitu- tional rights takes much time and thought to draft. I commend the Council members for their industry and patience in dealing with this complicated matter. ROP/bjr Attachment (rent (lom tlilttr Itpart Ov t4e (Qnumm (Qounrit of tot (guy of Ovt# Irud: Your Committee OF THE WHOLE to whom was referred AN ORDINANCE AMENDING CHAPTER 7 OF THE MUNICIPAL CODE OF THE CITY OF SOUTH BEND, INDIANA, BY THE ADDITION OF ARTICLE 9 PERTAINING TO THE REGULATION OF MASSAGE ESTABLISHMENTS, MASSAGE TECHNICIANS, AND THE PRACTICE OF MASSAGE. Respectfully report that they have examined the matter and that in their opinion THIS ORDINANCE BE RECOMMENDED TO THECOUNCIL FAVORABLY, AS AMENDED: CHANGE ANNUAL LICENSE FEE FROM $100.00 TO $50.00 FRANK HORVATH Chairman ree� •Hess •oe�mxixc co.