HomeMy WebLinkAboutORD-2012-024 (Not Approved) Amendment to Code of Ordinances Regarding Massage RegulationsORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 19, 2012
Action Agenda
Item No.
SUBJECT: Amendment to the Orange County Code of Ordinances Regarding Massage
Regulation
DEPARTMENT: County Attorney PUBLIC HEARING: (Y /N) No
ATTACHMENT(S):
1) DRAFT — Chapter 8 Article II
2) Adopting Resolution
INFORMATION CONTACT:
John Roberts, 245 -2318
PURPOSE: To consider amending the Orange County Code of Ordinances related to the
regulation of massage practitioners and businesses.
BACKGROUND: Prior the codification of the general ordinances into the Orange County Code
of Ordinances ( "Code "), several individual ordinances were identified for revision. One of those
ordinances is now found in Chapter 8, Article II of the Code (Regulation of Massages and
Massage Establishments).
Currently if a person wishes to apply to perform massages in Orange County, the individual they
must apply to the Clerk to the Board ( "Clerk "), and the Clerk forwards the application to the
Sheriff who conducts an investigation. The Sheriff returns the application and investigation
results to the Clerk who then forwards the application and investigation materials to the County
Manager. The Clerk initially raised the issue that because of the disjointed nature of the
application process, and suggested that it may be best to request that the Sheriff conduct the
full application process from start to finish. The County Attorney discussed the issue with the
Sheriff who expressed a willingness to conduct the full application process so long as certain
changes were made to the ordinance.
The most significant changes to the ordinance are as follows:
Section 8- 32(b): changes language to licensed "by" the State of North Carolina.
Section 8 -33: authorizes the Sheriff to obtain fingerprints as needed without first securing
judicial approval.
Section 8 -34: contains the same fingerprint provision as 8 -33. Provides such fingerprints
may not be utilized in any U.S. Customs and Immigration Enforcement program. Also
requires applicants to be licensed by the North Carolina Board of Massage and Bodywork
Therapy.
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Section 8 -36: requires the posting of the massage license granted by the ordinance as
well as the certificate or license issued by the North Carolina Board of Massage and
Bodywork Therapy.
The ordinance leaves in place the appeal provisions. Any appeal of the Sheriff's determination
on an application is heard by the Orange County Board of Commissioners.
FINANCIAL IMPACT: There is no financial impact to the County associated with the
amendment of the Code of Ordinances.
RECOMMENDATION(S): The Manager recommends that the Board:
1) Adopt and authorize the Chair to sign the Resolution Amending Chapter 8, Article II of the
Code of Ordinances of Orange County; and
2) Authorize staff to make any typographical or other non - substantive corrections as may be
needed prior to and during the process of submission of the amended ordinance to
Municode.
09D- oOR -o.a4
PART I - GENERAL ORDINANCES 3
Chapter 8 - BUSINESSES
ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS
ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS 191
(9) State Law reference—Adult establishments, G.S. 14- 202.10 et seq.
Sec. 8 -31. - Definitions
Sec. 8 -32. - Scope
Sec. 8 -33. - Licensing of massage business operators
Sec. 8 -34. - Licensing of massage practitioners.
Sec. 8 -35. -.Employer to use only licensed employees
Sec. 8 -36. - Posting of license.
Sec. 8 -37. - Notice and hearing
Sec. 8 -38. - Hours of operation.
Sec. 8 -39. - Patronage of m-issage businesses by minors; employment of minors
Sec. 8-40. - Massage of private parts.
Sec. 8-41. - Privilege license annual.
Sec. 8-42. - Remedies
Sec. 8-43. - Severability.
Sec. 8 -44. - Effective date
Secs. 8- 45 -8 -60. - Reserved.
Sec. 8 -31. - Definitions.
Unless the context clearly indicates otherwise, the following terms shall have the respective meanings
ascribed to them:
Business or profession of massage: The massage or treatment of any person for a fee or in expectation
of a gratuity from the person massaged.
Massage: The manipulation of body muscle or tissue by rubbing, stroking, kneading, or tapping, applied
by hand, arm, foot or mechanical device.
Massage business. Any establishment or business wherein massage is practiced, including
establishments commonly known as health clubs, physical culture studios, massage studios and
massage parlors.
Massage practitioner Any person engaged in the business or profession of massage.
(Ord. of 11-4 -1985, § 1 -1, eff. 11 -4 -1985)
Cross reference— Definitions generally, § 1 -2.
State law reference— Similar definitions, G. S. 14- 202.10.
Sec. 8 -32. - Scope.
(a) The therapeutic application of massage is one of the oldest healing arts known to humankind; a
practice which can provide many benefits to an individual's state of well- being. To protect public health,
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safety, welfare and morals, the following privilege license provisions and regulations are ordained for
the privilege of carrying on the business, trade, or profession of massage practitioner and for the
operation or carrying on of the businesses, trades, or professions commonly known as massage clinic,
massage parlor, health salon, health club, physical culture studio, or similar establishment wherein
massage or physical manipulation of the human body is carried on or practiced.
(b) The provisions of this Ordinance shall not apply to:
(1) Regularly established and licensed hospital, sanitarium, nursing home, nor to an office or
clinic operated and regularly used by a duly licensed physician, surgeon, osteopath, chiropractor,
physical therapist or podiatrist in connection with the practice of medicine, chiropractor,
osteopathy, physical therapy or podiatry;
(2) Physicians, surgeons, chiropractors, osteopaths, physical therapists or podiatrists duly
licensed by the State of North Carolina;
(3) Registered or practical nurses duly licensed by the State of North Carolina working under the
supervision of a licensed physician, chiropractor, osteopath or podiatrist;
(4) Cosmetologist, barbers or beauty cultunsts duly licensed by the State of North Carolina who
do not give, or hold themselves out to give massages other than are customarily given in barber
shops and beauty shops solely for the purpose of beautification.
(Ord. of 11-4 -1985, § 1 -2, eff. 11-4 -1985)
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 under the authority of the Orange County Board of County Commissioners by the
Orange County Sheriff 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 Orange County Sheriff and shall be filed with the Orange County Sheriff. 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 8- 33(b), any federal statute relating to prostitution, or any law or ordinance of any
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governmental unit concerning the business of massage. The statement shall list convictions for all
crimes including but not limited to any crime involving sexual misconduct and offenses pursuant to
G.S. §§ 14- 177 -14 -202.6 and §§ 14- 203-14 -208;
(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 8- 33(b)(1);
(5) A complete statement of any conviction of any person whose name is required to be given in
subsection 8- 33(b)(1) 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 8- 33(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) Jln addition to the application required in 8 -33(b) the applicant shall submit, at the applicant's cost,
his or her fingerprints, taken by the Sheriff. Upon receipt of an application the Sheriff shall conduct a
Division of Criminal Investigation ( "DCI ") criminal history check of the applicant. The Sheriff shall also
transmit a copy of the application to the Department of Planning and Inspections to determine
compliance with all zoning and building regulations and ordinances. The Sheriff in cooperation with the
respective fire district chief shall determine compliance with any law relating to fire protection..
(d) The Sheriff shall approve the 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 8- 33(b)(3);
(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 Sheriff, 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 Sheriff if he determines
that:
(1) The licensee has violated any provisions of this article;
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(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 -33 or whose license under Section
8 -33 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 8- 33(b)(3);
(4) Any employee of the licensee is, after the license under this section is issued, convicted of
any crime listed in subsection 8- 33(b)(3);
(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 Sheriff 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 8- 33(b)(2).
(h) Any person whose application for a license is denied by the Sheriff pursuant to subsection 8-
33(b)(d) of this section or revoked pursuant to subsection 8 -33(f) or subsection 8 -33(g) of this section
may appeal such decision to the Board of County Commissioners. An appeal is taken by filing written
notice of such appeal with the Clerk to the Board of County 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 of County Commissioners may affirm, modify or reverse the
Sheriffs decision.
(Ord. of 11 -4 -1985, § 1 -3, eff. 11-4 -1985; Amend. of 3 -20 -1991, eff. 3 -20 -1991; Amend. of 8 -18 -2009,
eff. 8 -18 -2009)
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
Sheriff and shall be filed with the Sheriff. 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 subsection 8-
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ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS
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 8- 34(b), two recent
photographs of the applicant's head and shoulders, of a size and quality prescribed by the Sheriff. The
applicant shall additionally submit his or her fingerprints, taken by the Sheriff, as part of the application
required in subsection 8- 34(b). The applicant shall further submit a copy of his or her license or
certification issued to the applicant by the North Carolina Board of Massage and Bodywork Therapy
The photographs, license or certification, and fingerprints required by this subsection shall be provided
at the applicant's expense, according to the fees for such activities as they may be from time to time
established and payable in the manner established.
(d) An application in proper form shall be submitted to the Sheriff together with all reports, documents,
photographs, and fingerprints required by this section. Fingerprints collected purusuant to this section
or 8 -33 shall not be provided to U.S. Immigration and Customs Enforcement or used in conjunction with
any U.S. Immigration and Customs Enforcement action. The Sheriff shall conduct an investigation of
the applicant as provided herein. The Sheriff 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 subsection 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;
(5) The applicant has not been previously convicted of any violation of any provision of this
article; and
(6) The applicant is duly licensed and /or certified by the North Carolina Board of Massage and
Bodywork Therapy.
(e) . Upon approval of the application by the Sheriff, and upon receipt of a license fee and any other
fees as those fees are 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.
(f) A license issued pursuant to this section shall be revoked by action of the Sheriff 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
subsection 8- 33(b)(3); or
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(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.
(g) Any person whose application for a license is denied by the Sheriff pursuant to subsection 8 -34(d)
or revoked pursuant to subsection 8 -34(f) may appeal such decisions to the Board of County
Commissioners. An appeal is taken by filing written notice of such appeal with the Clerk to the Board of
County Commissioners within ten days following the date of the decision. The Board of County
Commissioners shall set the appeal for hearing in the manner provided by Section 8 -37. The Board of
Commissioners may affirm, modify or reverse the Sheriffs decision.
(Ord. of 11 -4- 1985, § 1 -4, eff. 11-4 -1985; Amend. of 3 -20 -1991, eff. 3 -20 -1991)
Sec. 8 -35. - Employer to use only licensed employees.
No person licensed under Section 8 -33 of this Ordinance shall allow or permit any person to massage
or treat any person upon the premises operated by the licensee unless the person giving such
massage or treatment is licensed under Section 8 -34 of this Ordinance and duly licensed or certified by
the North Carolina Board of Massage and Bodywork Therapy.
(Ord. of 11 -4 -1985, § 1 -5, eff. 11-4 -1985)
Sec. 8 -36. - Posting of license.
(a) Every massage practitioner shall post his or her massage practitioner license where he or she is
carrying on the business of massage. If the license cannot be posted, then the massage practitioner
shall have the license in his or her actual possession at the time of carrying on the business of
massage. Every massage practitioner shall post his or her North Carolina Board of Massage and
Bodywork Therapy issued certification or license where he or she is carrying on the business of
massage. If the certification or license cannot be posted, then the massage practitioner shall have
such certification or license in his or her actual possession at the time of carrying on the business of
massage.
(b) Every person or business entity licensed under Section 8 -33 of this Ordinance shall display such
license conspicuously at the place where the massage business is carried on. Every such person or
business entity shall display conspicuously the certifications or licenses issued by the North Carolina
Board of Massage and Bodywork Therapy to the massage practitioners working at the massage
business premises.
(Ord. of 11 -4 -1985, § 1 -6, eff. 11-4 -1985)
Sec. 8 -37. - Notice and hearing.
Before the Sheriff revokes a license issued pursuant to this Ordinance, or before the Board of County
Commissioners considers an appeal, pursuant to Section 8 -33 or Section 8 -34 of this Ordinance, from
a decision of the Sheriff denying an application for a license, the Sheriff or the Board of County
Commissioners as the case may be shall cause a written notice to be sent by certified mail to the
licensee affected or applicant affected, at the address stated in the license or application. This notice
shall advise the affected party of a right to appear before the Sheriff or the Board of County
Commissioners as the case may be, with or without legal counsel, at a stated time and place, for the
purpose of presenting any evidence relevant to such revocation or denial, and for the purpose of
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hearing all evidence submitted and examining or cross - examining any person providing such evidence.
(Ord. of 11 -4- 1985, § 1 -7, eff. 11 -4 -1985)
Sec. 8 -38. - Hours of operation.
(a) No person licensed as a massage practitioner under Section 8 -34 of this Ordinance shall massage
or treat any person or engage in the business or profession of massage, before 8:00 a.m. or after 10:00
p.m., prevailing time.
(b) No person licensed under Section 8 -33 of this Ordinance shall admit customers or prospective
customers, or remain open for business, or allow, or permit or condone any massage or treatment of
any person upon the premises before 8:00 a.m. or after 10:00 p.m., prevailing time.
(c) No person in charge of managing a massage business upon the premises shall allow, permit, or
condone any massage or treatment of any person before 8:00 a.m. or after 10:00 p.m., prevailing time.
(Ord. of 11 -4 -1985, § 1 -8, eff. 11 -4 -1985)
Sec. 8 -39. - Patronage of massage businesses by minors; employment of minors
(a) No person licensed as a massage practitioner under Section 8 -34 hereof shall massage or treat
any person under the age of 18 years, except when the parent or guardian of the person under 18
accompanies the person under the age of 18 during the massage treatment or upon written permission
of the parent or guardian of the person under 18 or upon written order of a licensed physician,
osteopath, chiropractor, podiatrist or registered physical therapist, such order or written permission
being dated and in the possession of the massage practitioner giving the massage or treatment.
(b) No person licensed under Section 8 -33 of this Ordinance shall allow, permit or condone the
massage or treatment of any person under the age of 18 years upon the licensed premises, except
when the parent or guardian of the person under 18 accompanies the person under the age of 18
during the massage treatment or upon written permission of the parent or guardian of the person under
18 or upon written order of a licensed physician, osteopath, chiropractor, podiatrist or registered
physical therapist, such order or written permission being dated, and a true copy of such order being in
the possession of the licensee before administration of any massage or treatment.
(c) No person licensed pursuant to Section 8 -33 of this Ordinance shall employ any person under the
age of 18 years in the operation of a massage business.
(Ord. of 11-4 -1985, § 1 -9, eff. 11-4 -1985)
Sec. 8-40. - Massage of private parts.
It shall be unlawful for any person to massage or to offer to massage the private parts of another for
hire. "Private parts" means the penis, scrotum, mons veneris, vulva or vaginal area.
(Ord. of 11 -4 -1985, § 1 -10, eff. 11 -4 -1985)
Sec. 8 -41. - Privilege license annual.
(a) The licenses required under this Ordinance are annual privilege licenses. The annual privilege
license fee for the second and subsequent years of continuous operation of a massage business shall
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be $15.00. The annual privilege license fee for the second and subsequent years of continuous practice
of a massage practitioner shall be $10.00. A massage practitioner who is a sole practitioner and who is
not employed as a massage practitioner by a massage business operates a massage business and
shall be required to be licensed as both a massage business and a massage practitioner. However,
such a sole practitioner shall only be required to pay the privilege license fee prescribed herein for a
massage business.
(b) Fees for the licenses shall be due and payable in the same manner as prescribed for other
privilege license fees of Orange County pursuant to the license and privilege tax ordinance of the
County.
(Ord. of 11-4 -1985, § 1 -11, eff. 11-4 -1985)
Sec. 8-42. - Remedies.
(a) Violation of this Ordinance is a misdemeanor punishable as prescribed in N.C. Gen. Stat. § 14 -4.
(b) Injunctive Relief:
(1) Whenever the Sheriff has reasonable cause to believe that any person is violating or
threatening to violate this Ordinance or any rule or order adopted or issued pursuant to this
Ordinance, or any term, condition, or provision of a license issued pursuant to this Ordinance, it
may, either before or after the institution of any other action or proceeding authorized by this
Ordinance, institute a civil action in the name of Orange County for injunctive relief to restrain the
violation or threatened violation.
(2) Upon determination by a court that an alleged violation is occurring or is threatened, it shall
enter such orders or judgments as are necessary to abate the violation or to prevent the
threatened violation. The institution of an action for injunctive relief under this section shall not
relieve any party to such proceedings from any civil or criminal penalty prescribed for violation of
this Ordinance.
(Ord. of 11- 4- 1985, § 2 -1, eff. 11 -4 -1985)
Sec. 8 -43. - Severability.
If any provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, such provision shall be deemed a separate, independent provision and such
holding shall not affect the validity of any other provision hereof, and to that end, the provisions of this
Ordinance are hereby declared to be severable.
(Ord. of 11-4 -1985, § 3 -1, eff. 11 -4 -1985)
Sec. 8-44. - Effective date.
This Ordinance shall be effective on November 4, 1985. Applicants for license under this Ordinance
shall have 60 days from its effective date to apply for a license. No massage business or massage
practitioner shall be deemed in violation of the licensing requirements of this Ordinance during the 60-
day period following the effective date of this Ordinance. No massage business or massage practitioner
that has made application for a license within 60 days of the effective date of this Ordinance .shall be
deemed in violation of this Ordinance during that license application process through the point in time of
the County Managers decision on the application.
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(Ord. of 11 -4 -1985, § 4 -1, eff. 11 -4 -1985)
Secs. 8- 45- -8 -60. - Reserved.
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Res - ao I a - 000 Aachm&-h a
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION OF AMENDMENT
A RESOLUTION AMENDING CHAPTER 8, ARTICLE II OF THE ORANGE
COUNTY CODE OF ORDINANCES .
WHEREAS, Orange County, through ordinance, has since 1985 regulated the provision of massage
services throughout the unincorporated areas of Orange County; and
WHEREAS, in 2011 the Orange County Sheriff was approached to determine if he was willing to
engage his office in the conduct and enforcement of that section of the Orange County Code of
Ordinances regulating massage practitioners and businesses; and
WHEREAS, the Sheriff expressed his willingness to conduct and enforce both the application
process and. all subsequent matters with regard to the provisions of massage services in Orange
County; and
WHEREAS, the Orange County Board of Commissioners, believing it to be in the best interest of the
citizens and residents of Orange County, hereby determine that the provision of massage services
by massage practitioners and massage businesses should be conducted in Orange County only
according to those certain regulations and requirements found in Chapter 8, Article II of the Orange
County Code of Ordinances as amended;
NOW THEREFORE BE IT RESOLVED that the Orange County Board of Commissioners hereby
amends Chapter 8, Article II, Sections 18 -151 through 18 -155 of the Orange County Code of
Ordinances to further regulate the provision of massage services by massage practitioners and
massage businesses.
This Amendment shall become effective upon adoption.
Adopted by the Orange County Board of Commissioners this day of .2012.
Attest:
Bernadette Pelissier, Chair Donna Baker, Clerk to the Board
Orange County Board of Commissioners
[SEAL]
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