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HomeMy WebLinkAboutAgenda - 12-07-2015 - 6-f - Amendment to the Orange County Code of Ordinances Regarding Massage Regulation ORANGE COUNTY 1 BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 7, 2015 Action Agenda Item No. 6-f SUBJECT: Amendment to the Orange County Code of Ordinances Regarding Massage Regulation DEPARTMENT: County Attorney PUBLIC HEARING: (Y/N) No Tax Administration ATTACHMENT(S): INFORMATION CONTACT: 1) DRAFT-Chapter 8 Article I I Sections John Roberts, County Attorney, 245-2318 2) Adopting Resolution Dwane Brinson, Tax Administrator, 245- 2726 PURPOSE: To consider amending the Orange County Code of Ordinances related to the regulation of massage practitioners and businesses. BACKGROUND: Orange County, through Chapter 8, Article 11 of the Code of Ordinances, regulates the provision of massage services in Orange County. Throughout the ordinance references are made to privilege license fees and taxes as being those fees required to be paid prior to providing massage services in Orange County. This language was adopted many years ago and was satisfactory at the time of its adoption even though the fees are regulatory license fees rather than privilege license fees. In 2015 the North Carolina General Assembly repealed the authority of counties to levy privilege license fees. This creates a need for clarification in the ordinance to specify that these license fees are lawful and are regulatory in nature and are not true privilege fees. In addition to the clarification the proposed amendment removes the requirement that the Sheriff conduct a Division of Criminal Investigation ("DCI") criminal background check on applicants. This is necessary due to new DCI restrictions on the Sheriff's use of the service. Finally, in anticipation of a Unified Development Ordinance amendment regulating the siting and location of sexually oriented businesses in Orange County, the proposed amendment adds applicants and potential employees of such businesses to the licensing requirements. FINANCIAL IMPACT: There is no financial impact to the County associated with the amendment to the Code of Ordinances. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this item. RECOMMENDATION(S): The Manager recommends that the Board: 1) Adopt and authorize the Chair to sign the Resolution Amending Chapter 8, Article I I 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. 2 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS • ARTICLE IL - MASSAGES AND MASSAGE ESTABLISHMENTS • 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. TG-Pursuant to the authority granted to counties by North Carolina General Statute § 153A-134 and to protect public health, safety, welfare,and morals, the following """" regulatory license provisions and regulations are ordained for the "'wile^° 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. All of the requirements of this Article shall apply to sexually oriented businesses and employees of such businesses as those businesses and employees of such businesses are defined by the Orange County Code of Technical Ordinances except those which by their nature can have no application. (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) Orange County, North Carolina, Code of Ordinances Page 1 of 7 3 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS Cosmetologist, barbers or beauty culturists 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,Amend. of 06-19-2012, eff. 06-19-2012) • 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 """" regulatory 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 pFivilege 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 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) Orange County, North Carolina, Code of Ordinances Page 2 of 7 4 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS 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) In addition to the application required in subsection 8-33(b) the applicant shall submit, at the applicant's cost, his or her fingerprints, taken by the Sheriff and a certified criminal background check covering the immediately preceding five (5)year period for all locations in which the applicant has temporarily or Permanently resided. l lr,nn rcncir t of aR application the Sheriff sh.;ll rAAd,art Dmumsinn of CrornmARl Investigation nrimiRal hmGtGF\/ nh8Gk of the applicant The Sheriff shall a+sa-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 application shall be approved if the Sheriff°hall appFeve the appliGati^„ 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) Orange County, North Carolina, Code of Ordinances Page 3 of 7 5 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS 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 pFivilege 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. A license issued pursuant to this section shall be revoked by action of the Sheriff Of"° ^'°+°""' °°°upon the Sheriffs determination 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 pFivilege 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 Orange County, North Carolina, Code of Ordinances Page 4 of 7 6 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS 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. of3-20-1991, eff. 3-20-1991,Amend. of 8-18-2009, eff. 8-18-2009,Amend.of 06-19-2012, eff. 06-19-2012) • 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 pFivilege-re ator 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 8-33(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, at his or her cost, his or her fingerprints, taken by the Sheriff, and a certified criminal background check covering the immediately preceding five (5) year period for all locations in which the applicant has temporarily or permanently resided 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 Orange County, North Carolina, Code of Ordinances Page 5 of 7 7 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS 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 pursuant to this section or section 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 application shall be approved if the Sheriff ski°" appFe e s rh appliGatiep {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 pFivilege 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. A license issued pursuant to this section shall be revoked by action of the Sheriff if b'-the Sheriff determines that: (1) The licensee has violated any provision of this article; (2) Orange County, North Carolina, Code of Ordinances Page 6 of 7 8 Attachment 1 PART I -GENERAL ORDINANCES ORD-2015-034 Chapter 8-BUSINESSES ARTICLE II.-MASSAGES AND MASSAGE ESTABLISHMENTS The licensee is, after the license under this section is issued, convicted of any crime listed in subsection 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. (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,Amend. of 06-19-2012, eff. 06-19-2012) • Sec. 8-41. - Privilege lieense fl*atmiAnnual License. (a) The licenses required under this Ordinance are annual pFivilege licenses. The annual pFivilege license fee for the second and subsequent years of continuous operation of a massage business shall be $15.00. The annual pFivilege 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 pFivilege 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 pFivilege license fees of Orange County puF6 iaRt to the l,,eRiGe a;hd rr,,,,lege+w „rd_iAa;,,,.o of the r-eunt„and may be collected in any manner authorized by law. (Ord. of 11-4-1985,§ 1-11, eff. 11-4-1985) Orange County, North Carolina, Code of Ordinances Page 7 of 7 9 RES-2015-065 Attachment 2 RESOLUTION OF AMENDMENT A RESOLUTION AMENDING CHAPTER 8, ARTICLE II OF THE ORANGE COUNTY CODE OF ORDINANCES Be it Resolved by the Board of Commissioners of Orange County, North Carolina: WHEREAS,Orange County,through ordinance,has since 1985 regulated the provision of massage services throughout the unincorporated areas of Orange County and has collected a fee therefor; and WHEREAS, in 2015 the North Carolina legislature repealed the authority of counties to levy privilege license taxes and fees; and WHEREAS, although the massage license fee was called a privilege tax or privilege fee the authority for imposition and collection of the massage license fee is derived from the county's regulatory authority rather than its now repealed privilege tax authority; and WHEREAS,the Orange County Board of Commissioners,believing it to be in the best interest of the citizens and residents of Orange County to clarify the ordinance, hereby determines that the operation of massage businesses and sexually oriented 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,the Orange County Board of Commissioners hereby amends Chapter 8,Article II, as shown in the attachment to further regulate the provision of massage services by massage practitioners and massage businesses and sexually oriented businesses. This Amendment shall become effective upon adoption. Adopted by the Orange County Board of Commissioners this day of , 2015. By: Attest: Chair Donna Baker, Clerk to the Board Orange County Board of Commissioners [SEAL]