Loading...
HomeMy WebLinkAboutOrdinance No. 4497 - Ordinance - Amendments to Chapter 5-15 related to Massage Therapists and Massage Businesses ORDINANCE NO. ____ AN ORDINANCE CREATING SECTIONS 5-15-13, 5-15-14, 5- 15-15, 5-15-16, 5-15-17, AMENDING PARAGRAPH (b) OF SECTION 5-15-4, AMENDING SECTIONS 5-15-2, 5-15-8, 5- 15-9, 5-15-10, 5-15-12, AND AMENDING THE TITLE AND SECTION OF 5-15-11 OF CHAPTER 5-15 OF TITLE 5 OF THE ROCHESTER CODE OF ORDINANCES RELATING TO THE REGULATION OF MASSAGE THERAPISTS AND MASSAGE THERAPY BUSINESSES THE COMMON COUNCIL OF THE CITY OF ROCHESTER ORDAINS: Section 1. Section 5-15-13 of Chapter 15-5 of the Rochester Code of Ordinances is hereby created to read as follows: Sec. 5-15-13. Right of appeal. If the city denies, suspends or revokes or chooses to not renew a license, written notice must be sent to the applicant or owner/licensee setting forth the alleged grounds for the potential action. To appeal the revocation, suspension, denial or non- renewal, the applicant or owner/licensee must file a written notice of appeal with the city clerk within fourteen business days after the city's determination. If the notice of appeal is not filed within fourteen business days, the right of appeal is terminated. A timely appeal from a suspension or revocation shall not stay the suspension or revocation. Section 2. Section 5-15-14 of Chapter 15-5 of the Rochester Code of Ordinances is hereby created to read as follows: Sec. 5-15-14. Hearing; hearing officer. (a) The city clerk, or designee, the city attorney, or designee, a member of the public health department or designee, and the president of the common council shall act as the hearing officers. The city may also designate an external individual to act in this capacity. The hearing officers shall have authority to hear appeals from the following actions of the city: (1) The denial or refusal to renew a license. (2) The placing of a license on probation. (3) The revocation of a license. (4) The suspension of a license. (b) Where an external individual is designated to act as a hearing officer the administrative rules of chapter 1-2-6 shall so apply to the process. (c) The hearing officers may receive all evidence and hear witnesses on matters applicable to the appeal. The hearing officers shall afford the registrant, permittee, business, or applicant making the appeal an opportunity to present evidence, cross-examine witnesses, and be heard. The hearing officers may affirm, modify, or reverse the city's action by a majority vote rendered in writing. (d) Any person or business aggrieved by the hearing officers’ determination may appeal to the common council. An appeal to the common council shall be taken within fourteen business days from the hearing officer's decision by filing with the city clerk a notice of appeal. The matter shall be placed on the common council's scheduled meeting agenda for a public hearing. The common council may affirm, modify, or reverse the hearing officer's decision. If the notice of appeal is not filed within fourteen business days, the right to appeal is terminated. Section 3. Section 5-15-15 of Chapter 15-5 of the Rochester Code of Ordinances is hereby created to read as follows: Sec. 5-15-15. Notice of Appeal All notices shall be given either by personal service, mail or electronic mail to the address for service of notices as shown on the application form. Service by mail shall be deemed complete on the date of certified receipt. Failure of the applicant, licensee, or owner to receive such notice shall not invalidate the action taken pursuant to such notice. Section 4. Section 5-15-16 of Chapter 15-5 of the Rochester Code of Ordinances is hereby created to read as follows: Sec. 5-15-16. Notice of hearing. Notice of any hearing involving the registrant, permittee, or the applicant shall be given by the city clerk in writing, setting forth specifically the purpose, time, and place of the hearing. Such notice shall be sent to the registrant, permittee, business, or applicant at least seven business days prior to the date set for hearing or shall be personally served at least three business days prior to the date set for hearing. Section 5. Section 5-15-17 of Chapter 15-5 of the Rochester Code of Ordinances is hereby created to read as follows: Sec. 5-15-17. Penalty. Any person violating any provision of this chapter shall be guilty of a misdemeanor. 2 Section 6. Paragraph (b) of Section 5-15-4 of Chapter 15-5 of the Rochester Code of Ordinances is hereby amended to read as follows: Sec. 5-15-4. Exceptions to licensure. (b) No massage therapist license is required if the massage therapist is hired or employed by, and exclusively provides treatment on the premises of persons duly licensed by the state to practice medicine, surgery, osteopathy, chiropractic, physical therapy, or podiatry, or professional practices licensed under Minn. Stats Ch. 147 or 148 or registered by the state and regulated by a governmental body with a board where concerns and complaints could be directed, provided the massage is administered in the regular course of the medical business and not provided as part of a separate and distinct massage business. medical professional licensed under Minn. Stats. ch. 147 or 148 or a dental professional licensed under Minn. Stats. ch. 150A. A massage therapist is not limited to providing treatment to patients of the medical or dental professional. Section 7. Section 5-15-2 of Chapter 15-5 of the Rochester Code of Ordinances is amended to read as follows: Sec. 5-15-2. Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Accredited institution means an educational institution holding accredited status from a regional accrediting agency approved by the United States Department of Education presently or at the time the applicant obtained his diploma or certificate of graduation. The term "accredited institution" also includes a state-licensed institution or state-approved massage apprenticeship program. Applicant means any person filing an application with the city clerk seeking a massage therapist or massage therapy business license pursuant to this chapter. "Clean" means the absence of dirt, rubbish, garbage and other offensive, unsightly or extraneous matter. "In good repair" means free of corrosion, breaks, cracks, chips, pitting, excessive wear and tear, leaks, obstructions and similar defects. Issuing authority means the city clerk or designee. Licensed premises means the premises described in the application for a massage therapy business license issued pursuant to this chapter. Licensee means any person issued a massage therapist or massage therapy business license pursuant to this chapter. Massage therapist means a person who practices or provides therapeutic massage to another for a fee or other consideration paid either directly or indirectly. A massage therapist does not include a medical doctor, chiropractor, osteopath, podiatrist, licensed nurse, physical 3 therapist, athletic doctor or trainer, or beautician (cosmetologist) or barber who confines his their treatment to the scalp, face and neck or the lower leg and feet in the case of a pedicure. Massage therapy or therapeutic massage means the scientific health care or health maintenance techniques or procedures carried out by a massage therapist involving the rubbing, tapping, pounding or kneading of a person's skin, muscles, and tissues or the stretching of body limbs (e.g., Thai massage) for the purpose of easing mental and physical tension, the breaking up of fatty tissues, relaxing muscles, or alleviating muscle spasms, pain relief, aiding in the healing process, promoting health and wellness, and the improvement of circulation through the body. Massage therapy business. (1) The term "massage therapy business" means any enterprise, establishment, or operation, whether under the control of an individual or legal entity, providing or offering to provide massage therapy within the city for a fee or other consideration paid either directly or indirectly, that: a. Has one or more massage therapists, other than including the owner, employed or contracted to provide massage therapy for the massage therapy business; and b. Is located in a fixed location in a zoning district which permits massage therapy. (2) A massage therapy business does not include a health or medical facility, office or clinic operated by a state-licensed medical professional, or any health or medical- related business operated by a state-licensed medical professional, which provides therapeutic massage to its patients. “Sanitize” means to reduce or eliminate pathogenic agents (such as bacteria) on a surface with a cleaner using bleach, peroxides, isopropyl alcohol, iodine or chlorine as an active ingredient State-licensed institution means a private educational institution (apprenticeship, collegiate or career school) holding licensed status, registration and financial aid eligibility approved through the state in which it is located, presently or at the time the applicant obtained his their diploma or certificate of graduation. Student of massage therapy means a person who is enrolled in and attends classes at an accredited institution or at a state-licensed institution. Section 8. Section 5-15-8 of Chapter 15-5 of the Rochester Code of Ordinances is amended to read as follows: Sec. 5-15-8. License ineligibility. (a) An application for a massage therapy business license shall can be denied upon any of the following grounds: (1) The proposed fixed location or premises in which the massage therapy business proposes to provide massage therapy services is not located in a properly zoned district in which a business, or medical or health care facilities or uses are permitted by the zoning ordinances of this Code; (2) The owner, operator, or any person who has a five percent financial interest in the proposed massage therapy business or the appointed on-site manager or agent of the applicant has, within ten years of the date of application, a conviction for, or was charged 4 with, but convicted of a lesser charge of, a crime directly related to the massage therapy business license. These crimes shall include, but not be limited to, any of the crimes listed at Minn. Stats. § 146A.08, subd. 1(b), 609.321, 609.322, 609.324, 609.3243, 609.33, 609.52, 609.527, 609.528, 609.582, 609.74, or 617.23 or a felony crime involving Minn. Stats. ch. 152, or a crime committed in another state under a statute in conformity with any of the statutes listed above. The council must consider evidence of rehabilitation as provided in Minn. Stats. § 364.03, subd. 3; (3) The owner, operator, or any person who has a five percent financial interest in the proposed massage therapy business had a massage therapist or massage therapy business-related license in this or another jurisdiction that was suspended or revoked within ten years preceding the date of application; (4) The application was incomplete or failed to comply with all of the requirements of this chapter; (5) The applicant provided false or misleading information on the application form, or has failed to pay the applicable fees; (6) The proposed licensed premises is the subject of delinquent or unpaid taxes, assessments, or other financial claims by the state, county or city and the applicant has an interest or legal duty to pay those taxes, assessments or claims; (7) The applicant has been denied a license under this chapter within the previous 12 months. (8) Is not the real party of interest for the establishment. (9) The applicant does not have insurance coverage in effect as required by this Section. (b) An application for a massage therapist license shall can be denied upon any of the following grounds: (1) The applicant has, within ten years of the date of application, a conviction for, or was charged with, but convicted of a lesser charge of, a crime directly related to the massage therapy license. These crimes shall include, but not be limited to, any of the crimes listed at Minn. Stats. § 146A.08, subd. 1(b), 609.321, 609.322, 609.324, 609.3243, 609.33, 609.52, 609.527, 609.528, 609.582, 609.74, or 617.23 or a felony crime involving Minn. Stats. ch. 152, or a crime committed in another state under a statute in conformity with any of the statutes listed above. The council must consider evidence of rehabilitation as provided in Minn. Stats. § 364.03, subd. 3; (2) The applicant had a massage therapist or massage therapy business-related license in this or another jurisdiction that was suspended or revoked within ten years preceding the date of application; (3) The applicant is not 18 years of age or older; (4) The applicant is not a United States citizen and is not legally permitted to be in the United States; (5) The application was incomplete or failed to comply with all of the requirements of this chapter; (6) The applicant provided false or misleading information on the application form, or has failed to pay the applicable fees; 5 (7) The applicant has been denied a license under this chapter within the previous 12 months. (8) The applicant does not have insurance coverage in effect as required by this Section. Section 9. Section 5-15-9 of Chapter 15-5 of the Rochester Code of Ordinances is amended to read as follows: Sec. 5-15-9. Investigation, granting and denial of license application. Every license application must be reviewed by the police department, planning department and such other entities as the city administrator deems necessary, to determine whether the application satisfies all applicable legal requirements. The police department must conduct a review of the applicant's criminal history. If warranted by the police department's review of the applicant's criminal history, the department may require the applicant to provide fingerprints or a photograph. The license application, along with any referral department comments, shall be delivered to the common council for its review and action. The council must approve a license application only if it satisfies all of the requirements of this chapter. Section 10. Section 5-15-10 of Chapter 15-5 of the Rochester Code of Ordinances is amended to read as follows: Sec. 5-15-10. Restrictions and regulations. (a) A massage therapy business license may only employ a massage therapist licensed under this chapter to perform massage therapy. A massage therapy business license allows the licensee to operate the business only at the licensed premises except as otherwise provided in this subsection. A massage therapist employed or contracted by a massage therapy business licensee may provide massage therapy: (1) To a client at the client's residence; (2) In a long-term or short-term care facility, such as a hospital, nursing home, or convalescence facility; (3) In connection with a special event or function whereby the massage therapist provides massage therapy to attendees of the event or function; (4) At a place of business (provided the license designates off-site therapeutic massage); or (5) In a hotel/motel room (provided the license designates off-site therapeutic massage). (b) The licensed premises shall, during operating hours, be open to inspection by any building, health, zoning, code, licensing or law enforcement officer to determine whether the licensed premises are in compliance with applicable laws and ordinances. As a condition to being issued a massage therapy business license, the licensee consents to these inspections by these officers. It is unlawful for any licensee, its agent, or employee to hinder or prevent these inspections by these officers. Those performing the inspections shall make every reasonable effort to honor and protect the privacy of the client. 6 (c) The act of any employee of the licensee is deemed to be the act of the licensee. The licensee shall be responsible for all acts and conduct attributable to and in connection with massage therapy services provided by the licensee or occurring on the licensed premises; however, the licensee's good faith actions taken in the operation of the massage therapy business and in response to the acts or conduct of licensee's employees shall be considered in determining whether the licensee has acted responsibly. (d) The person receiving massage therapy shall at all times have his 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. (e) The licensee and licensee's employees shall at all times be fully clothed and shall not expose his breast, buttocks, anus or genitals. (f) A massage therapist may not touch or offer to touch, or provide massage therapy to, the penis, scrotum, mons veneris, vulva, or vaginal area of any customer or person inquiring of massage therapy. (g)(e) No alcoholic beverage, narcotic drug or controlled substance, as such terms are defined by state law or this Code, shall be used, ingested or present during any massage therapy session. (h)(f) The licensee shall not knowingly bring or possess, or knowingly allow another person to bring or possess, a contraceptive device or obscene material. (i)(g) Only a massage therapy licensee shall practice or provide therapeutic massage for: (1) A massage therapy business licensee; (2) A health care office, clinic or facility owned by a municipality, the state or its agencies or licensed by the state; (3) A business or entity owned and operated by a state-licensed medical professional through whom therapeutic massage is provided to its patients as a secondary health care treatment; (4) Hospitals, hospice facilities, nursing homes or other approved institutions established for the hospitalization or care of human beings that are duly licensed under Minn. Stats. ch. 144; (5) A health or sport establishment allowing persons of all ages on the premises; (6) Athletic directors and trainers who perform massage therapy in the course of any athletic program or event which is sponsored by a local unit of government or an educational institution that complies with all applicable state and local regulations; or (7) Nonprofit corporations or associations duly organized under the laws of the state for civic, fraternal, social or business purposes. (j)(h) The licensee, its agents and employees must comply with all applicable ordinances, regulations and statutes. (k)(i) A massage therapist licensee shall not provide any massage therapy and the licensed premises shall not be open between the hours of 10:00 p.m. and 6:00 a.m. of any day, except for those applying for and receiving an off-site designation on their license. 7 (l)(j) If the licensee is a partnership or corporation, the licensee must designate a person to be manager and responsible for the conduct and operation of the licensee's business establishment. Such person shall remain responsible for the conduct of the business until another suitable person has been designated in writing by the licensee. The licensee shall promptly notify the police department in writing of any such change indicating the name, address and telephone number of the new manager, and the effective date of the change in management. (m)(k) A massage therapist licensee shall have the city-issued license in his their possession or posted in a conspicuous location while providing massage therapy. A massage therapy business shall conspicuously post its city-issued license upon the licensed premises where it is easily viewable by the general public. (n)l No license issued under this chapter may be transferred. A massage business therapy license shall terminate upon any change in the licensee's officers or ownership interests unless the change is approved by the common council, in which case, the license shall continue in force until the end of the license term. (o)(m) The licensee must have obtained, from an insurance company authorized to do business in the state, a general liability insurance policy providing minimum coverage of $300,000.00 combined single limit per occurrence as well as workers' compensation insurance as may be required by state law. The licensee must provide a certificate of insurance evidencing the insurance coverage required by this subsection. No cancellation of any insurance policy will be valid except upon 30 calendar days prior written notice to the City. Failure to keep in full force and effect the insurance is grounds for suspension or revocation of the license. (n) A massage therapist shall be employed by, affiliated with, or own a massage therapy business licensed by the city, unless a person or place is specifically exempted from obtaining a therapeutic massage business license as outlined in Sec. 5-15-14. (p)(o) All licensees shall comply with all health and sanitation laws and ordinances. Section 11. Section 5-15-12 of Chapter 15-5 of the Rochester Code of Ordinances is amended to read as follows: Sec. 5-15-11 12. License suspension, revocation and denial. (a) Any license issued by the city pursuant to the provisions of this chapter may be suspended, revoked or placed on probation or, in connection with the application or renewal of a license, denied upon a finding that the licensee: (1) Failed to comply with any applicable state law, city ordinance or building, safety or health regulation relating to a massage therapist or massage therapy business. (2) Was arrested for a crime directly related to massage therapy or massage therapy business. These crimes shall include, but not be limited to, any of the crimes listed at Minn. Stats. § 146A.08, subd. 1(b), 609.321, 609.322, 609.324, 609.3243, 609.33, or 8 617.23 or a felony crime involving Minn. Stats. ch. 152, or a crime committed in another state under a statute in conformity with any of the statutes listed above (2)(3) Employed or contracted with a person to perform massage therapy who is required to be licensed by this chapter, but who was not so licensed at the time of employment or contract; (3)(4) Violated or did not meet any relevant provision of this chapter; (4)(5) Failed to comply with any condition set forth in the license, set forth in a council action regarding the license, set forth by the hearing officers or set forth as part of the placement of the license on probation; (5)(6) Allowed the licensed business to be operated or maintained in a way that unreasonably annoyed, endangered or injured the safety, health, morals, comfort or repose of any considerable number of members of the public; or (6)(7) Provided false or misleading information on the application. (8) In the event of licensees owning multiple massage business locations, any license revocation shall apply to all massage establishment locations within the city of Rochester. (b) Whenever it appears to the council that adequate grounds may exist for the suspension, revocation or imposition or probation of a license, the council shall, by resolution, specify the nature of the alleged grounds and order that a hearing on the matter be held as provided below. (c) No such suspension, revocation or probation shall be effective until the licensee has been afforded an opportunity for a hearing after reasonable notice. The notice shall state the time, place and issues to be addressed. All parties will be afforded an opportunity at the hearing to present evidence and argument concerning the issues. (d) Upon a finding that the licensee has violated any such statute or ordinance, the council may: (1) Suspend the license for up to 60 days; (2) Revoke the license; or (3) Place the license on probation for a stated time period. The council may impose conditions upon the license during the time of probation. (b)(c) The filing of a criminal complaint against the licensee alleging a violation of Minn. Stats. § 609.321, 609.322, 609.324, 609.3242 or 609.3243 shall result in the immediate temporary suspension of the licensee's license. The temporary suspension shall terminate at the time the complaint is dismissed, the licensee is acquitted or the criminal charge is otherwise resolved, and for which all rights to appeal to a state court have been exhausted or waived. (d) The city may issue a temporary suspension of a massage business license, if the licensee, or any person working on behalf of the licensee, is determined to be conducting business in an unlawful manner, or in any manner that constitutes a substantial hazard to the health, safety, or general welfare of the public. A written notice of the grounds for the suspension shall be delivered to the licensee. The licensee must be given a minimum of 24 hours’ notice 9 to suspend their business. A temporary suspension can last no longer than 30 days. Longer suspensions must be approved through the hearing process. Section 12. The Title of and Section of 5-15-11 of Chapter 15-5 of the Rochester Code of Ordinances is amended to read as follows: Sec. 5-15-11. Restrictions and regulations regarding sanitation, health and safety. (a) Toilet room requirements: Restrooms used in connection with the massage therapy business shall be provided with mechanical ventilation with two (2) cfm per square foot of floor area, a minimum of twenty (20) foot candles of illumination, a hand-washing sink equipped with hot and cold running water under pressure, single-use paper towels or other approved drying device and a soap dispenser. (b) Paper/linen requirements. A massage therapy business shall provide single-service disposal paper or clean linens to cover the massage therapy equipment on which the patron receives the massage; or in the alternative, if the massage therapy equipment on which the patron receives the massage is made of material impervious to moisture, such massage therapy table or, chair shall be properly sanitized after each massage. (c) Washing of hands required. The massage therapist shall wash his or her hands and arms with water and soap, anti-bacterial scrubs, alcohol, or other disinfectants prior to and following each massage service performed. (d) Equipment. Massage tables, chairs, and other furniture on which massages are performed must have surfaces that can be readily disinfected after each massage. These surfaces must be disinfected following each massage performed. (e) Habitation. Massage businesses 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. Futons as used in the course of massage therapy sessions are permitted. Home-based massage businesses 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 in any area where massage is performed. (f) Illness: A massage therapy business must be able to describe or provide an employee illness policy. (g) Bodily Fluids: Surfaces must be clean and routinely disinfected. Evidence of bodily fluids (blood, saliva, semen, sweat, etc.) will be treated as a failure of sanitary practices and can be grounds for administrative actions such as citation, probation, suspension or revocation. (h) Compliance with Building and Fire Codes: Massage Business premises shall comply with all applicable fire and building code requirements. Section 13. This ordinance shall become effective from and after its publication. 10 PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER, MINNESOTA, THIS __________ DAY OF _______________, 2023. ___________________________________ PRESIDENT OF SAID COMMON COUNCIL ATTEST: __________________________ CITY CLERK APPROVED THIS _____ DAY OF ______________________, 2023. ___________________________________ MAYOR OF SAID CITY (Seal of the City of Rochester, Minnesota) Ord20/5-15 et al.MassageOrdAmend(Ver2).docx 11