Loading...
HomeMy WebLinkAboutAgenda - 08-18-2009 - 4lORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: August 18, 2009 Action Agenda Item No. •~ - ~- SUBJECT: State Required Modification to the Orange County Massa a Parlor Ordinance DEPARTMENT: Sheriff PUBLIC HEARING: (Y/N) No ATTACHMENT(S): 1) Mark-up Revised Ordinance 2) Clean Revised Ordinance INFORMATION CONTACT: John Roberts 245-2318 Sheriff Lindy Pendergrass 245-2900 PURPOSE: To bring the Orange County Massage Parlor Ordinance into compliance with North Carolina law. BACKGROUND: Sheriff Lindy Pendergrass has been informed by law enforcement consultants with the State of North Carolina that Orange County's Massage Parlor Ordinance, in its current form, is not compliant with North Carolina law. North Carolina General Statute §114-19.11(b) requires that applicants for a massage therapy license submit to criminal background checks. In Orange County, the Sheriff's Office conducts these background checks pursuant to the Orange County Massage Parlor Ordinance. The Sheriff's Office conducts these checks through use of computer programs maintained by the Division of Criminal Investigations (DCI) section of the North Carolina Department of Justice. Pursuant to the North Carolina Administrative Code, DCI requires that law enforcement agencies utilizing DCI programs to conduct background checks specify that that such background checks will be performed using DCI. The Orange County Sheriff conducts such checks pursuant to the various control agreements that DCI requires law enforcement agencies to enter. In its current form the Orange County Massage Parlor Ordinance does not meet DCI guidelines. FINANCIAL IMPACT: None RECOMMENDATION(S): The Interim Manager recommends that the Board of County Commissioners approve this text modification to the Orange County Massage Parlor Ordinance. ~~.~(-~ ~ e~s~a. ~Ch4n9c s Sec. 8-33. Licensing of massage business operators. (a) No person shall operate a massage business unless such person shall have first applied for and received the license provided by this section. A license issued pursuant to this section is a privilege license issued to the applicant only and is not transferable. (b) Every application for the privilege license prescribed in this section shall be upon a form approved by the county manager and shall be filed with the clerk to the board of commissioners. Every such application shall be made under oath and shall contain the following information: (1) If the applicant is: a. A person, the name of the applicant, any aliases ever used by the applicant, the age, the sex, social security number (optional) and past military identification number of the applicant; the residence address of the applicant and the residence addresses of the applicant for the ten years preceding the date of the application; b. A partnership, corporation or association, the name, any aliases ever used, sex, social security number (optional) and past military identification number, the residence address and the residence addresses for the ten years preceding the date of the application regarding each person having any legal or beneficial interest in such applicant; (2) The address of the premises where the massage business shall be located; (3) A complete statement of all convictions of any person whose name is required to be given in subsection (b)(1) of this section of any crime involving sexual misconduct, including but not limited to G.S. 14-177--14-202.1, G.S. 14-203--14-208, any section of this article, any federal statute relating to prostitution, or any law or ordinance of any governmental unit concerning the business of massage; (4) A complete statement of any revocation, by any governmental unit, of any license and the existence of any license to operate a massage business or to engage in the business or profession of massage held or formerly held by any person whose name is required to be given in subsection (b)(1) of this section; (5) A complete statement of any conviction of any person whose name is required to be given in subsection (b)(1) of this section for violation of any statute, law, ordinance or regulation of any government concerning the operation of a massage business or the business or profession of massage; (6) The name and address of any massage business or other establishment owned or operated by any person whose name is required to be given in subsection (b)(1) of this section wherein the business or profession of massage is carried on; and (7) A description of any other business to be operated on the same premises or on adjoining premises owned or controlled by the applicant. (c) The clerk to the board of commissioners shall transmit a copy of the application to the sheriffs department for an investigative report. The sheriff shall conduct a DCI criminal history of the applicant. The sheriff shall inform the clerk to the board of commissioners of the results of the DCI inquiry. If after completing the investigation of the applicant using the information obtained from the applicant required in subsection (b) of this section, the sheriff shall deem it necessary to positively identify the applicant or any person having any legal or beneficial interest in the applicant in order to confirm a fact necessary for the applicant to be licensed, the sheriff shall present the information upon which he has made this determination to one of the judges of the district court in the 15B judicial district. If the judge shall determine, from the information presented by the sheriff, that there is probable cause to believe that a fact revealed in the sheriffs investigation would un~le~ I;ned~ 0 3 disqualify an applicant from receiving a license under this article, the judge shall order and authorize the sheriff to confirm that fact by the use of fingerprints. When such an order is issued, it shall be the added responsibility of the applicant or any person having a legal or beneficial interest in the applicant to submit his fingerprints, taken by the sheriffs department, as part of the application required in subsection (b) of this section. The clerk to the board of commissioners shall also transmit a copy of the application to the department of inspections to determine compliance with all zoning and building regulations and ordinances. The sheriffs department in cooperation with the respective fire district chief shall determine compliance with any law relating to fire protection. The sheriffs department shall within a reasonable time, not to exceed 45 days, report the results of its examinations to the clerk to the board of commissioners. (d) An application in proper form, accompanied by all reports required by this section, shall be submitted to the county manager, who shall approve such application if he determines that: (1) The application contains no misstatement of fact; (2) The applicant, or any person having any legal or beneficial ownership interest in the applicant, has not been convicted, for the five-year period preceding the date of the application, of any crime listed in subsection (b)(3) of this section; (3) The applicant conforms to all requirements of applicable zoning, building and fire prevention codes; and (4) The applicant or any person having a legal or beneficial interest in the applicant has not, for the three-year period preceding the application, had a previously issued license for engaging in the business or profession of massage revoked. (e) Upon approval of the application by the county manager, and upon receipt of a license fee set from time to time, the collector of revenue shall issue a privilege license to the applicant. Permit approval shall lapse if the license fee prescribed by this section is not received by the collector of revenue within 60 days of the date the application is approved. (f) A license issued pursuant to this section shall be revoked by action of the county manager if he determines that: (1) The licensee has violated any provisions of this article; (2) The licensee, or any agent of the licensee, employs or permits to be on the premises of the applicant's massage business any person practicing the business or profession of massage who has not been issued a privilege license required by section 8-34 or whose license under section 8-34 has been revoked; (3) The licensee, or the legal or beneficial owner of any interest in the licensee, is, after the license under this section is issued, convicted of any crime listed in subsection (b)(3) of this section; (4) Any employee of the licensee is, after the license under this section is issued, convicted of any crime listed in subsection (b)(3) of this section; (5) The licensee violates any zoning, building or fire prevention ordinance; or (6) The licensee is guilty of fraudulent, false, misleading or deceptive advertising, including the use of the term "massage" to describe, promote or advertise any type of business activity or service prohibited by this article or is not massage as defined in this article. (g) A license issued pursuant to this section shall be revoked by the county manager if the licensee ceases for 30 consecutive days operating a massage business at the location required to be stated in the application for license pursuant to subsection (b)(2) of this section. (h) Any person whose application for a license is denied by the county manager pursuant to subsection (d) of this section or revoked pursuant to subsection (f) or (g) of this section may appeal such decision to the board of commissioners. An appeal is taken by filing written notice of such appeal with the clerk to the board of commissioners within ten days following the date of the decision. The board of commissioners shall set the appeal for hearing in the manner provided by section 8-37. The board may affirm, modify or reverse the county manager's decision. (Ord. of 11-4-1985, § 1-3, eff. 11-4-1985; Ord. of 3-20-1991, eff. 3-20-1991) Sec. 8-34. Licensing of massage practitioners. (a) No person shall engage in the business or profession of massage unless such person shall have first applied for and received the license provided by this section. A license issued pursuant to this section is a privilege license issued to the applicant only and is not transferable. (b) The application for the license required by this section shall be upon a form approved by the county manager and shall be filed with the clerk to the board of commissioners. Such application shall be given under oath and shall contain the following information: (1) The name of the applicant, any aliases ever used by the applicant, the age, the sex, social security number (optional) and past military identification number of the applicant; the residence address of the applicant and the residence addresses of the applicant for the ten years preceding the date of the application; (2) A complete statement of the previous business or occupation of the applicant for the two years immediately preceding the date of application, including any massage establishment experience; (3) A complete statement of all convictions of the applicant for any crime listed in section 8-33(b)(3); (4) A complete statement of any revocation of any license granted by any governmental unit to the applicant to engage in the business or profession of massage; and (5) The date and place of the applicant's birth and the names of the applicant's parents. (c) The applicant shall submit, as part of the application required in subsection (b) of this section, two recent photographs of the applicant's head and shoulders, of a size and quality prescribed by the county manager. The information required by this subsection shall be provided at the applicant's expense. (d) The clerk to the board of commissioners shall transmit a copy of the application to the sheriff for an investigative report. If after completing the investigation of the applicant using the information obtained from the applicant required in subsection (b) of this section, the sheriff shall deem it necessary to positively identify the applicant in order to confirm a fact necessary for the applicant to be licensed„ the sheriff shall conduct a DCI Formatted: underline criminal history of the applicant. The sheriff shall inform the clerk to the board of commissioners of the results of the DCI inquiry The sheriff shall then present the information upon which ~ ueiered: ~ ~ he has made this determination to one of the judges of the district court in the 15B judicial district. If the judge shall determine, from the information presented by the sheriff, that there is probable cause to believe that a fact revealed in the sheriffs investigation would disqualify an applicant from receiving a license under this article, the judge shall order and authorize the sheriff to confirm that fact by the use of fingerprints. When such an order is issued, it shall be the added responsibility of the applicant to submit his fingerprints, taken by the sheriffs department, as part of the application required in subsection (b) of this section. The sheriffs department shall within a reasonable time, not to exceed 45 days, report the results of its investigation to the clerk to the board of commissioners. (e) An application in proper form shall be submitted to the county manager, together with all reports required by this section. The county manager shall approve such application if he determines: (1) That the applicant is at least 18 years of age; (2) The application contains no misstatement of fact; (3) The applicant has not been convicted, for the five-year period preceding the date of the application, of any crime listed in section 8-33(b)(3); (4) The applicant has not, for the three-year period preceding the application, had a previously issued license for engaging in the business or profession of massage revoked; and (5) The applicant has not been previously convicted of any violation of any provision of this article. (f) Upon approval of the application by the county manager, and upon receipt of a license fee set from time to time, subject, however, to the provisions of section 8-41, the collector of revenue shall issue a privilege license to the applicant. Permit approval shall lapse if the license fee prescribed by this section is not received by the collector of revenue within 60 days of the date the application is approved. (g) A license issued pursuant to this section shall be revoked by action of the county manager if he determines that: (1) The licensee has violated any provision of this article; (2) The licensee is, after the license under this section is issued, convicted of any crime listed in section 8-33(b)(3); or (3) The licensee is guilty of fraudulent, false, misleading or deceptive advertising, including the use of the term "massage" to describe, promote or advertise any type of business activity or service prohibited by this article or is not massage as defined in this article. (h) Any person whose application for a license is denied by the county manager pursuant to subsection (e) of this section or revoked pursuant to subsection (g) of this section may appeal such decisions to the board of commissioners. An appeal is taken by filing written notice of such appeal with the clerk to the board of commissioners within ten days following the date of the decision. The board shall set the appeal for hearing in the manner provided by section 8-37. The board of commissioners may affirm, modify or reverse the county manager's decision. (Ord. of 11-4-1985, § 1-4, eff. 11-4-1985; Ord. of 3-20-1991, eff. 3-20-1991) till provisions ol~ any County ordinance in conflict with this ordinance are hereby re pealed. Effectii~e Ante. This ordinance shall bea>mc cifecti~ c u}x>n ~~doption Adopted the day of flugust, 2009. C ~~ V~~'~ oRD-aooq-231 ~ Sec. 8-33. Licensing of massage business operators. (a) No person shall operate a massage business unless such person shall have first applied for and received the license provided by this section. A license issued pursuant to this section is a privilege license issued to the applicant only and is not transferable. (b) Every application for the privilege license prescribed in this section shall be upon a form approved by the county manager and shall be filed with the clerk to the board of commissioners. Every such application shall be made under oath and shall contain the following information: (1) If the applicant is: a. A person, the name of the applicant, any aliases ever used by the applicant, the age, the sex, social security number (optional) and past military identification number of the applicant; the residence address of the applicant and the residence addresses of the applicant for the ten years preceding the date of the application; b. A partnership, corporation or association, the name, any aliases ever used, sex, social security number (optional) and past military identification number, the residence address and the residence addresses for the ten years preceding the date of the application regarding each person having any legal or beneficial interest in such applicant; (2) The address of the premises where the massage business shall be located; (3) A complete statement of all convictions of any person whose name is required to be given in subsection (b)(1) of this section of any crime involving sexual misconduct, including but not limited to G.S. 14-177--14-202.1, G.S. 14-203--14-208, any section of this article, any federal statute relating to prostitution, or any law or ordinance of any governmental unit concerning the business of massage; (4) A complete statement of any revocation, by any governmental unit, of any license and the existence of any license to operate a massage business or to engage in the business or profession of massage held or formerly held by any person whose name is required to be given in subsection (b)(1) of this section; (5) A complete statement of any conviction of any person whose name is required to be given in subsection (b)(1) of this section for violation of any statute, law, ordinance or regulation of any government concerning the operation of a massage business or the business or profession of massage; (6) The name and address of any massage business or other establishment owned or operated by any person whose name is required to be given in subsection (b)(1) of this section wherein the business or profession of massage is carried on; and (7) A description of any other business to be operated on the same premises or on adjoining premises owned or controlled by the applicant. (c) The clerk to the board of commissioners shall transmit a copy of the application to the sheriffs department for an investigative report. The sheriff shall conduct a DCI criminal history of the applicant. The sheriff shall inform the clerk to the board of commissioners of the results of the DCI inquiry. If after completing the investigation of the applicant using the information obtained from the applicant required in subsection (b) of this section, the sheriff shall deem it necessary to positively identify the applicant or any person having any legal or beneficial interest in the applicant in order to confirm a fact necessary for the applicant to be licensed, the sheriff shall present the information upon which he has made this determination to one of the judges of the district court in the 15B judicial district. If the judge shall determine, from the information presented by the sheriff, that there is probable cause to believe that a fact revealed in the sheriff s investigation would 7 disqualify an applicant from receiving a license under this article, the judge shall order and authorize the sheriff to confirm that fact by the use of fingerprints. When such an order is issued, it shall be the added responsibility of the applicant or any person having a legal or beneficial interest in the applicant to submit his fingerprints, taken by the sheriff s department, as part of the application required in subsection (b) of this section. The clerk to the board of commissioners shall also transmit a copy of the application to the department of inspections to determine compliance with all zoning and building regulations and ordinances. The sheriffs department in cooperation with the respective fire district chief shall determine compliance with any law relating to fire protection. The sheriff s department shall within a reasonable time, not to exceed 45 days, report the results of its examinations to the clerk to the board of commissioners. (d) An application in proper form, accompanied by all reports required by this section, shall be submitted to the county manager, who shall approve such application if he determines that: (1) The application contains no misstatement of fact; (2) The applicant, or any person having any legal or beneficial ownership interest in the applicant, has not been convicted, for the five-year period preceding the date of the application, of any crime listed in subsection (b)(3) of this section; (3) The applicant conforms to all requirements of applicable zoning, building and fire prevention codes; and (4) The applicant or any person having a legal or beneficial interest in the applicant has not, for the three-year period preceding the application, had a previously issued license for engaging in the business or profession of massage revoked. (e) Upon approval of the application by the county manager, and upon receipt of a license fee set from time to time, the collector of revenue shall issue a privilege license to the applicant. Permit approval shall lapse if the license fee prescribed by this section is not received by the collector of revenue within 60 days of the date the application is approved. (f) A license issued pursuant to this section shall be revoked by action of the county manager if he determines that: (1) The licensee has violated any provisions of this article; (2) T'he licensee, or any agent of the licensee, employs or permits to be on the premises of the applicant's massage business any person practicing the business or profession of massage who has not been issued a privilege license required by section 8-34 or whose license under section 8-34 has been revoked; (3) The licensee, or the legal or beneficial owner of any interest in the licensee, is, after the license under this section is issued, convicted of any crime listed in subsection (b)(3) of this section; (4) Any employee of the licensee is, after the license under this section is issued, convicted of any crime listed in subsection (b)(3) of this section; (5) The licensee violates any zoning, building or fire prevention ordinance; or (6) The licensee is guilty of fraudulent, false, misleading or deceptive advertising, including the use of the term "massage" to describe, promote or advertise any type of business activity or service prohibited by this article or is not massage as defined in this article. 8 (g) A license issued pursuant to this section shall be revoked by the county manager if the licensee ceases for 30 consecutive days operating a massage business at the location required to be stated in the application for license pursuant to subsection (b)(2) of this section. (h) Any person whose application for a license is denied by the county manager pursuant to subsection (d) of this section or revoked pursuant to subsection (f) or (g) of this section may appeal such decision to the board of commissioners. An appeal is taken by filing written notice of such appeal with the clerk to the board of commissioners within ten days following the date of the decision. The board of commissioners shall set the appeal for hearing in the manner provided by section 8-37. The board may affirm, modify or reverse the county manager's decision. (Ord. of 11-4-1985, § 1-3, eff. 11-4-1985; Ord. of 3-20-1991, eff. 3-20-1991) Sec. 8-34. Licensing of massage practitioners. (a) No person shall engage in the business or profession of massage unless such person shall have first applied for and received the license provided by this section. A license issued pursuant to this section is a privilege license issued to the applicant only and is not transferable. (b) The application for the license required by this section shall be upon a form approved by the county manager and shall be filed with the clerk to the board of commissioners. Such application shall be given under oath and shall contain the following information: (1) The name of the applicant, any aliases ever used by the applicant, the age, the sex, social security number (optional) and past military identification number of the applicant; the residence address of the applicant and the residence addresses of the applicant for the ten years preceding the date of the application; (2) A complete statement of the previous business or occupation of the applicant for the two years immediately preceding the date of application, including any massage establishment experience; (3) A complete statement of all convictions of the applicant for any crime listed in section 8-33(b)(3); (4) A complete statement of any revocation of any license granted by any governmental unit to the applicant to engage in the business or profession of massage; and (5) The date and place of the applicant's birth and the names of the applicant's parents. (c) The applicant shall submit, as part of the application required in subsection (b) of this section, two recent photographs of the applicant's head and shoulders, of a size and quality prescribed by the county manager. The information required by this subsection shall be provided at the applicant's expense. (d) The clerk to the board of commissioners shall transmit a copy of the application to the sheriff for an investigative report. If after completing the investigation of the applicant using the information obtained from the applicant required in subsection (b) of this section, the sheriff shall deem it necessary to positively identify the applicant in order to confirm a fact necessary for the applicant to be licensed, the sheriff shall conduct a DCI criminal history of the applicant. The sheriff shall inform the clerk to the board of commissioners of the results of the DCI inquiry. The sheriff shall then present the information upon which he has made this determination to one of the judges of the district court in the 15B judicial district. If the judge shall determine, from the information presented by the I sheriff, that there is probable cause to believe that a fact revealed in the sheriff s investigation would disqualify an applicant from receiving a license under this article, the judge shall order and authorize the sheriff to confirm that fact by the use of fingerprints. When such an order is issued, it shall be the added responsibility of the applicant to submit his fingerprints, taken by the sheriffs department, as part of the application required in subsection (b) of this section. The sheriff s department shall within a reasonable time, not to exceed 45 days, report the results of its investigation to the clerk to the board of commissioners. (e) An application in proper form shall be submitted to the county manager, together with all reports required by this section. The county manager shall approve such application if he determines: (1) That the applicant is at least 18 years of age; (2) The application contains no misstatement of fact; (3) The applicant has not been convicted, for the five-year period preceding the date of the application, of any crime listed in section 8-33(b)(3); (4) The applicant has not, for the three-year period preceding the application, had a previously issued license for engaging in the business or profession of massage revoked; and (5) The applicant has not been previously convicted of any violation of any provision of this article. (f) Upon approval of the application by the county manager, and upon receipt of a license fee set from time to time, subject, however, to the provisions of section 8-41, the collector of revenue shall issue a privilege license to the applicant. Permit approval shall lapse if the license fee prescribed by this section is not received by the collector of revenue within 60 days of the date the application is approved. (g) A license issued pursuant to this section shall be revoked by action of the county manager if he determines that: (1) The licensee has violated any provision of this article; (2) The licensee is, after the license under this section is issued, convicted of any crime listed in section 8-33(b)(3); or (3) The licensee is guilty of fraudulent, false, misleading or deceptive advertising, including the use of the term "massage" to describe, promote or advertise any type of business activity or service prohibited by this article or is not massage as defined in this article. (h) Any person whose application for a license is denied by the county manager pursuant to subsection (e) of this section or revoked pursuant to subsection (g) of this section may appeal such decisions to the board of commissioners. An appeal is taken by filing written notice of such appeal with the clerk to the board of commissioners within ten days following the date of the decision. The board shall set the appeal for hearing in the manner provided by section 8-37. The board of commissioners may affirm, modify or reverse the county manager's decision. (Ord. of 11-4-1985, § 1-4, eff. 11-4-1985; Ord. of 3-20-1991, eff. 3-20-1991) All provisions of any County ordinance in conflict with this ordinance are hereby repealed. Effective date. This ordinance shall become effective upon adoption. Adopted the day of August, 2009.