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HomeMy WebLinkAboutAgenda - 06-07-2016 - 7-c - Amendment to the Orange County Code of Ordinances Regarding Massage Regulation 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 7, 2016 Action Agenda Item No. 7-c SUBJECT: Amendment to the Orange County Code of Ordinances Regarding Massage Regulation DEPARTMENT: County Attorney Tax Administration ATTACHMENT(S): INFORMATION CONTACT: 1) DRAFT-Chapter 8 Article I I John Roberts, County Attorney, 245-2318 2) Adopting Resolution Dwane Brinson, Tax Administrator, 245- 3) NC General Statute Chapter 90, 2726 Article 36 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 II of the Code of Ordinances, regulates the provision of massage services in Orange County and has done so since 1985. At that time there was no other regulation of this industry. In 1998 the North Carolina legislature enacted the North Carolina Massage and Bodywork Therapy Practice Act (the "Act"). This act established statewide licensing requirements applicable to individuals who engage in massage or bodywork therapy. Many of the provisions of the Act are similar to the requirements of the ordinance enacted by Orange County in 1985. The provisions of the ordinance only apply in the unincorporated areas of Orange County. The County Attorney has confirmed with the attorneys for Hillsborough, Carrboro, and Chapel Hill that the ordinance was never adopted by the town governing boards for enforcement within the towns. The County Attorney has further determined that most of those individuals and businesses that paid the fee in 2015 are not subject to the requirements of the ordinance and paid the fee under the mistaken belief that it applied to them. Much of this confusion could be eliminated by removing the fee collection requirements for massage practitioners and keeping them only for massage businesses. According to Planning Department staff, there are currently no massage businesses permitted in the unincorporated areas of the County. For this reason the proposed amendment removes licensing fees from practitioners, only requiring them to be licensed by North Carolina, and keeps the licensing provisions for massage businesses. Additionally, 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. 2 In 2015 the North Carolina legislature 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 or taxes. The word "privilege" is removed from the language to ensure compliance with state law. In addition to the clarifications noted above, 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. The proposed amendment includes the removal of the requirement for fingerprinting of applicants and requires applicants to pay for and submit a certified criminal background check with each application. Finally, at the Sheriffs suggestion, the proposed amendment removes application processing from the purview of the Sheriff and vests them with the County Manager or designee. Appeals for anything other than denials based on criminal convictions will be made to the Board of County Commissioners. Appeals for denials based on criminal convictions will be made to the Sheriff. FINANCIAL IMPACT: License fees equal less than one thousand dollars annually in County revenue. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this item. RECOMMENDATION(S): The Manager recommends the Board: 1) Deliberate as necessary on the proposed amendments; and 2) Consider the adoption of these massage business amendments into the Orange County Code of Ordinances, authorize the Chair to sign the attached Resolution of Adoption, and authorize the County Attorney to make any minor non-substantive changes or corrections that may be necessary prior to submission of the amendment to Municode. Attachment 1 ORD-2016-021 3 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS ARTICLE II. - 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.Te-Pursuant to the authority granted to counties by North Carolina General Statute § 153A-134 and to protect public health, safety, and welfare,and morals, the following privilege regulatory 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 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 privilege regulatory license issued under the authority of the Orange County Board of County Commissioners by the Orange County Sheriff Manager to the applicant only and is not transferable. As used in this Article Orange County Manager or County Manager shall mean the individual appointed to that position by the Orange County Board of Commissioners, or that individual's designee. Orange County, North Carolina, Code of Ordinances Page 1 of 9 4 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS (b) Every application for the privilege license prescribed in this section shall be upon a form approved by the Orange County Sheriff Manager and shall be filed with the Orange County ManagerSheriff. 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 (10) years preceding the date of the application. b.- A partnership, corporation, association, or any other business entity; the name of the partnership, corporation, association, or other entity, the name of each individual with an ownership or beneficial interest in the entity, the state of incorporation (if applicable), principal place of business, and the name, state of incorporation, and principal place of business of any and all associated business entities or predecessor in interest business entities.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), - --- - - - - - - - - - - - - , - - - - - - - -- - -. gover ental unit concerning the business of ma&sa-gc. 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 through and including 14-202.6, §§ 14-203 through and including 14-208, and §§ 14-208.5 through and including 14-208.45G.S. §§ 1/1 177 1/1 202.6 and §§ 1/1 203 1/1 208; (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; Orange County, North Carolina, Code of Ordinances Page 2 of 9 5 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS (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 a certified criminal background check conducted by the Clerk of Superior Court covering the immediately preceding five (5)year period for all locations in which the applicant has temporarily or permanently resided. Upon receipt of an application, the Sheriff shall conduct a Division of Criminal Investigation ("DCI") criminal history check of the applicant. The SheriffCounty — Manager 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 County Manager in cooperation with the respective fire district chief shall determine compliance with any law relating to fire protection. I (d) The application shall be approved if the County Manager 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 SheriffCounty 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 Sheriff if he d°+ esupon the County Manager's determination that: Orange County, North Carolina, Code of Ordinances Page 3 of 9 6 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. -MASSAGES AND MASSAGE ESTABLISHMENTS (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 8-33 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 offound to have used 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. I (g) A license issued pursuant to this section shall be revoked by the Sheriff 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 8-33(b)(2). (h) Any person or entity whose application for a license is denied by the Sheriff County Manager pursuant to subsection 8-33(b)(d)of this section or revoked pursuant to subsection 8-33(f)0j or subsection 8 33(g) of this section may appeal such decision to the =_- _ _ _e_- _e--. .- - Orange County Sheriff. _ Any person or entity whose application for a license is denied or revoked by the County Manager pursuant to any other 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 or the Sheriff, as the case may be, within ten days following the date of the decision. The Board of Commissioners, or the Sheriff, as the case may be, shall set the appeal for hearing in the manner provided by Section 8-37. The Board of County Commissioners or the Sheriff, as the case may be, may affirm, modify or reverse the Sheriffs County Managers 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;Amend.of 06-19-2012, eff. 06-19-2012) • Sec. 8-34. - Massage pPractitioners. Orange County, North Carolina, Code of Ordinances Page 4 of 9 7 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS (a) No person shall engage in the business or profession of massage unless such person shall have first applied for and received license and certification by the North Carolina Board of Massage and Bodywork Therapy. the license provided by this section. A licence issued pursuant to this section is a privilege license issued to the applicant only and is not transferable. (b) The application for the licence required by this section shall be upon a form approved by the Sheriff and information: (1) 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); ('1) 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) (c) photographs of the applicant's head and shoulders, of a size and quality prescribed by the Sheriff. The required in subsection 8 3'1(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 Massagc and Bodywork Thcrapy. 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, 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 Sheriff shall approve such application if he determines: Orange County, North Carolina, Code of Ordinances Page 5 of 9 8 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS 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); ('1) 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) (6) Bodywork Therapy. (e) those fees are set from time to time, subject, however, to the provisions of Section 8 '11, the collector of revenue shad-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. 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) subsection 8 33(b)(3); or (3) The licensee is guilty of fraudulent, faase, 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 3/1(d) or revoked pursuant to subsection 8 3/1(f) may appeal such decisions to the Board of County Commiscioners. 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 Orange County, North Carolina, Code of Ordinances Page 6 of 9 9 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS 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. 8-35. - 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 3/1 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; Amend. of 06-19-2012, eff. 06-19-2012) Sec. 8-36. - Posting of license. (a) Every massage practitioner shall post his or her North Carolina Board of Massage and Bodywork Therapy issued certification or license 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 issued certification or license where he or she is carrying on the business of manage. 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; Amend. of 06-19-2012, eff. 06-19-2012) Sec. 8-37. - Notice and hearing. Before the County ManagerSheriff revokes a license issued pursuant to this Ordinance, or before the Sheriff or Board of County Commissioners considers an appeal, pursuant to Section 8 33 or Section 8 3/1 of this Ordinance, from a decision of the Sheriff County Manager denying an application for a license, the Sheriff County Manager, 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 County Manager, 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 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: Amend. of 06-19-2012, eff. 06-19-2012) Sec. 8-38. - Hours of operation. Orange County, North Carolina, Code of Ordinances Page 7 of 9 10 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS (a) No person licensed as a massage practitioner under Section 8 3/1 of this Ordinance shall massage or treat any person or engage in the busines or profession of manage, before 8:00 a.m. or after 10:00 p.m., prevailing time. (Ea) 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. ( ) 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 3/1 hereof shall massage or treat any person under the age of 18 years, except when the parent or guardian of the person under 18 accompanics 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. I ( ) 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. I (sb) 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) I Sec. 8-41. - Privilege license annualAnnual License. (a) The licenses required under this Article are annual regulatory licenses. The annual license fee shall be as determined annually by the Board of County Commissioners in the Commissioner Approved Fee Schedule. -- -• - -_- license fee for the second and subsequent years of continuous operation of a massagc businccc shall 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 required to be licensed as both a manage busines and a manage practitioner. However, such a sole Orange County, North Carolina, Code of Ordinances Page 8 of 9 11 PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE II. - MASSAGES AND MASSAGE ESTABLISHMENTS practitioner shall only be required to pay the privilege license fee prescribed herein for a massage businc:s�. (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 yCommissioner Approved Fee Schedule. (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 G.S. § 14-4. (b) Injunctive Relief: I (1)Whenever the Sheriff County Manager 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: Amend. of 06-19-2012, eff. 06-19-2012) 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 Manager's decision on the application. (Ord. of 11-4-1985, § 4-1, eff. 11-4-1985) Orange County, North Carolina, Code of Ordinances Page 9 of 9 12 RES-2016-046 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 1998 the North Carolina legislature enacted statewide regulations governing the licensing of massage practitioners; 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, regardless of its title the county fee caused confusion to multiple massage therapists and business owners in that many of those who paid the fee were not conducting business in areas covered by the ordinance; 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 to eliminate confusion caused to residents hereby determines that the operation of 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 AND ORDAINED, that the Code of Ordinances, Orange County, North Carolina, Chapter 8, is hereby amended by amending sections 8-32---8-44, which sections read as shown in the attached revised ordinance to regulate the licensing and operations of massage businesses in Orange County. This Amendment shall become effective upon adoption. Adopted by the Orange County Board of Commissioners this day of , 2016. By: Attest: Chair Donna Baker, Clerk to the Board Orange County Board of Commissioners [SEAL] 13 Attachment 3 NCGS Chapter 90 Article 36. Massage and Bodywork Therapy Practice. §90-620. Short title. This Article shall be known as the North Carolina Massage and Bodywork Therapy Practice Act. (1998-230, s. 10.) §90-621. Declaration of purpose. The purpose of this Article is to ensure the protection of the health, safety, and welfare of the citizens of this State receiving massage and bodywork therapy services. This purpose is achieved by establishing education and testing standards that ensure competency in the practice of massage and bodywork therapy. Mandatory licensure of those engaged in the practice of massage and bodywork therapy assures the public that each individual has satisfactorily met the standards of the profession and continues to meet both the ethical and competency goals of the profession. (1998- 230, s. 10; 2008-224, s. 1.) §90-622. Definitions. The following definitions apply in this Article: (1) Accreditation. - Status granted to a postsecondary institution of higher learning that has met standards set by an accrediting agency recognized by the Secretary of the United States Department of Education. The accreditation for massage and bodywork schools may be institutional or programmatic in nature. (la) Board. - The North Carolina Board of Massage and Bodywork Therapy. (2) Board-approved school. - Any massage and bodywork therapy school or training program in this State or another state that is not otherwise exempt from Board approval, that has met the standards set forth in this Article, and been granted approval by the Board. (2a) Criminal history record check. - A report resulting from a request made by the Board to the North Carolina Department of Public Safety for a history of conviction of a crime, whether a misdemeanor or felony, that bears on an applicant's fitness for licensure to practice massage and bodywork therapy. (3) Massage and bodywork therapy. - Systems of activity applied to the soft tissues of the human body for therapeutic, educational, or relaxation purposes. The application may include: 14 a. Pressure, friction, stroking, rocking, kneading, percussion, or passive or active stretching within the normal anatomical range of movement. b. Complementary methods, including the external application of water,heat, cold, lubricants, and other topical preparations. c. The use of mechanical devices that mimic or enhance actions that may possibly be done by the hands. (3a) Massage and bodywork therapy school. - Any educational institution that conducts a training program or curriculum for a tuition charge, which is intended to teach adults the knowledge, skills, and abilities necessary for the safe, effective, and ethical practice of massage and bodywork therapy. (4) Massage and bodywork therapist. - A person licensed under this Article. (5) Practice of massage and bodywork therapy. - The application of massage and bodywork therapy to any person for a fee or other consideration. (1998-230, s. 10; 2008-224, s. 2; 2014-100, s. 17.1(o).) §90-623. License required. (a) A person shall not practice or hold out himself or herself to others as a massage and bodywork therapist without first applying for and receiving from the Board a license to engage in that practice. (b) A person holds out himself or herself to others as a massage and bodywork therapist when the person adopts or uses any title or description including "massage therapist", "bodywork therapist", "masseur", "masseuse", "massagist", "somatic practitioner", "body therapist", "structural integrator", or any derivation of those terms that implies this practice. (c) It shall be unlawful to advertise using the term "massage therapist" or "bodywork therapist" or any other term that implies a soft tissue technique or method in any public or private publication or communication by a person not licensed under this Article as a massage and bodywork therapist. Any person who holds a license to practice as a massage and bodywork therapist in this State may use the title "Licensed Massage and Bodywork Therapist". No other person shall assume this title or use an abbreviation or any other words, letters, signs, or figures to indicate that the person using the title is a licensed massage and bodywork therapist. An establishment employing or contracting with persons licensed under this Article may advertise on behalf of those persons. (d) The practice of massage and bodywork therapy shall not include any of the following: (1) The diagnosis of illness or disease. 15 (2) Medical procedures, chiropractic adjustive procedures, electrical stimulation,ultrasound, or prescription of medicines. (3) The use of modalities for which a license to practice medicine, chiropractic, nursing, physical therapy, occupational therapy, acupuncture, or podiatry is required by law. (4) Sexual activity, which shall mean any direct or indirect physical contact, by any person or between persons, which is intended to erotically stimulate either person, or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. As used in this subdivision, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. Sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. (1998-230, s. 10; 2008-224, s. 3.) §90-624. Exemptions. Nothing in this Article shall be construed to prohibit or affect: (1) The practice of a profession by persons who are licensed, certified, or registered under other laws of this State and who are performing services within their authorized scope of practice. (2) The practice of massage and bodywork therapy by a person employed by the government of the United States while the person is engaged in the performance of duties prescribed by the laws and regulations of the United States. (3) The practice of massage and bodywork therapy by persons duly licensed, registered, or certified in another state, territory, the District of Columbia, or a foreign country when incidentally called into this State to teach a course related to massage and bodywork therapy or to consult with a person licensed under this Article. (4) Students enrolled in a Board-approved school while completing a clinical requirement for graduation that shall be performed under the supervision of a person licensed under this Article. (5) A person giving massage and bodywork therapy to members of that person's immediate family. (6) The practice of movement educators such as dance therapists or teachers, yoga teachers, personal trainers, martial arts instructors, movement repatterning practitioners, and other such professions. (7) The practice of techniques that are specifically intended to affect the human energy field. 16 (8) A person employed by or contracting with a not-for-profit community service organization to perform massage and bodywork therapy on persons who are members of the not-for-profit community service organization and are of the same gender as the person giving the massage or bodywork therapy. (1998-230, s. 10; 2000-140, s. 93.) §90-625. North Carolina Board of Massage and Bodywork Therapy. (a) The North Carolina Board of Massage and Bodywork Therapy is created. The Board shall consist of seven members who are residents of this State and are as follows: (1) Five members shall be massage and bodywork therapists who have been licensed under this Article and have been in the practice of massage and bodywork therapy for at least five of the last seven years prior to their serving on the Board. Consideration shall be given to geographical distribution, practice setting, clinical specialty, involvement in massage and bodywork therapy education, and other factors that will promote diversity of the profession on the Board. Two of the five members shall be appointed by the General Assembly, upon the recommendation of the Speaker of the House of Representatives, two shall be appointed by the General Assembly, upon the recommendation of the President Pro Tempore of the Senate, and one shall be appointed by the Governor. (2) One member shall be a physician licensed pursuant to Article 1 of Chapter 90 of the General Statutes or a person once licensed as a physician whose license lapsed while the person was in good standing with the profession and eligible for licensure. The appointment shall be made by the Governor and may be made from a list provided by the North Carolina Medical Society. (3) One member shall be a member of the general public who shall not be licensed under Chapter 90 of the General Statutes or the spouse of a person who is so licensed, or have any financial interest, directly or indirectly, in the profession regulated under this Article. The appointment shall be made by the Governor. (b) Legislative appointments shall be made in accordance with G.S. 120-121. A vacancy in a legislative appointment shall be filled in accordance with G.S. 120- 122. (c) Each member of the Board shall serve for a term of three years, ending on June 30 of the last year of the term. A member shall not be appointed to serve more than two consecutive terms. (d) The Board shall elect annually a chair and other officers as it deems necessary. The Board shall meet as often as necessary for the conduct of business but 17 no less than twice a year. The Board shall establish procedures governing the calling, holding, and conducting of regular and special meetings. A majority of the Board shall constitute a quorum. (e) Each member of the Board may receive per diem and reimbursement for travel and subsistence as set forth in G.S. 93B-5. (f) Members may be removed by the official who appointed the member for neglect of duty, incompetence, or unprofessional conduct. A member subject to disciplinary proceedings as a licensee or other professional credential shall be disqualified from participating in the official business of the Board until the charges have been resolved by a determination that the misconduct does not rise to the level of disciplinary action resulting in the suspension or revocation of the member's professional credential. (1998-230, s. 10;2008-224, s. 4.) §90-626. Powers and duties. The Board shall have the following powers and duties: (1) Represent the diversity within the profession at all times when making decisions and stay current and informed regarding the various branches of massage and bodywork therapy practice. (2) Evaluate the qualifications of applicants for licensure under this Article. (3) Issue,renew, deny, suspend, or revoke licenses under this Article. (4) Reprimand or otherwise discipline licensees under this Article. (5) Conduct investigations to determine whether violations of this Article exist or constitute grounds for disciplinary action against licensees under this Article. (5a) Approve and regulate massage and bodywork schools,not otherwise exempt from the requirements of Board approval, by formulating the criteria and standards for approval of massage and bodywork schools, investigating massage and bodywork schools applying for approval, issuing approvals to massage and bodywork schools that meet the standards established by the Board,providing periodic inspections of approved massage and bodywork schools, and requiring periodic reports of approved massage and bodywork schools. (6) Conduct administrative hearings in accordance with Chapter 150B of the General Statutes when a contested case, as defined in G.S. 150B-2(2), arises under this Article. (7) Employ professional, clerical, or other special personnel necessary to carry out the provisions of this Article and purchase or rent necessary office space, equipment, and supplies. (8) Pursuant to the maximum amounts set by this Article and other specific authority authorizing fees, establish reasonable fees for 18 applications for examination, certificates of licensure and renewal, approval of massage and bodywork therapy schools, and other services provided by the Board. (9) Adopt, amend, or repeal any rules necessary to carry out the purposes of this Article and the duties and responsibilities of the Board, including rules related to the approval of massage and bodywork therapy schools, continuing education providers, examinations for licensure, the practice of advanced techniques or specialties, and massage and bodywork therapy establishments. Any rules adopted or amended shall take into account the educational standards of national bodywork and massage therapy associations and professional organizations. (10) Appoint from its own membership one or more members to act as representatives of the Board at any meeting where such representation is deemed desirable. (11) Maintain a record of all proceedings and make available to certificate holders and other concerned parties an annual report of the Board. (12) Adopt a seal containing the name of the Board for use on all certificates and official reports issued by it. (13) Provide a system for grievances to be presented and resolved. (14) Assess civil penalties pursuant to G.S. 90-634.1. (15) Assess the costs of disciplinary actions pursuant to G.S. 90- 634.1(d). The powers and duties set out in this section are granted for the purpose of enabling the Board to safeguard the public health, safety, and welfare against unqualified or incompetent practitioners and are to be liberally construed to accomplish this objective. (1998-230, s. 10; 2003-348, s. 3;2008-224, ss. 6, 7.) §90-627. Custody and use of funds. All fees and other moneys collected and received by the Board shall be used for the purposes of implementing this Article. (1998-230, s. 10.) §90-628. Expenses and fees. (a) All salaries, compensation, and expenses incurred or allowed for the purposes of this Article shall be paid by the Board exclusively out of the fees received by the Board as authorized by this Article or from funds received from other sources. In no case shall any salary, expense, or other obligations of the Board be charged against the General Fund. (b) The Board may impose the following fees up to the amounts listed below: 19 (1) Application for license $20.00 (2) Initial license fee 150.00 (3) License renewal 100.00 (4) Late renewal penalty 75.00 (5) Repealed by Session Laws 2008-224, s. 8, effective August 17, 2008. (6) Duplicate license 25.00 (7) Repealed by Session Laws 2008-224, s. 8, effective August 17, 2008. (1998-230, s. 10; 2008-224, s. 8.) §90-629. Requirements for licensure. Upon application to the Board and the payment of the required fees, an applicant may be licensed as a massage and bodywork therapist if the applicant meets all of the following qualifications: (1) Has obtained a high school diploma or equivalent. (2) Is 18 years of age or older. (3) Is of good moral character as determined by the Board. (4) Has successfully completed a training program consisting of a minimum of 500 in-class hours of supervised instruction at a Board- approved school. (5) Has passed a competency assessment examination that meets generally accepted psychometric principles and standards and is approved by the Board. (6) Has submitted fingerprint cards in a form acceptable to the Board at the time the license application is filed and consented to a criminal history record check by the North Carolina Department of Public Safety. (1998-230, s. 10;2008-224, s. 9; 2014-100, s. 17.1(o).) §90-629.1. Criminal history record checks of applicants for licensure. (a) All applicants for licensure shall consent to a criminal history record check. Refusal to consent to a criminal history record check may constitute grounds for the Board to deny licensure to an applicant. The Board shall ensure that the State and national criminal history of an applicant is checked. The Board shall be responsible for providing to the North Carolina Department of Public Safety the fingerprints of the applicant to be checked, a form signed by the applicant consenting to the criminal record check and the use of fingerprints and other identifying 20 information required by the State or National Repositories, and any additional information required by the Department of Public Safety. The Board shall keep all information obtained pursuant to this section confidential. (b) The cost of the criminal history record check and the fingerprinting shall be borne by the applicant. (c) If an applicant's criminal history record check reveals one or more criminal convictions, the conviction shall not automatically bar licensure. The Board shall consider all of the following factors regarding the conviction: (1) The level of seriousness of the crime. (2) The date of the crime. (3) The age of the person at the time of the conviction. (4) The circumstances surrounding the commission of the crime, if known. (5) The nexus between the criminal conduct of the person and the job duties of the position to be filled. (6) The person's prison, jail, probation, parole, rehabilitation, and employment records since the date the crime was committed. If, after reviewing the factors, the Board determines that any of the grounds set forth in the subdivisions of G.S. 90-633(a) exist, the Board may deny licensure of the applicant. The Board may disclose to the applicant information contained in the criminal history record check that is relevant to the denial. The Board shall not provide a copy of the criminal history record check to the applicant. The applicant shall have the right to appear before the Board to appeal the Board's decision. However, an appearance before the full Board shall constitute an exhaustion of administrative remedies in accordance with Chapter 150B of the General Statutes. (d) The Board, its officers, and employees, acting in good faith and in compliance with this section, shall be immune from civil liability for denying licensure to an applicant based on information provided in the applicant's criminal history record check. (2008-224, s. 10;2014-100, s. 17.1(o).) §90-630: Repealed by Session Laws 2008-224, s. 11, effective August 17,2008. §90-630.1. Licensure by endorsement. (a) The Board may issue a license to a practitioner who is duly licensed, certified, or registered as a massage and bodywork therapist under the laws of another jurisdiction. The practitioner shall be eligible for licensure by endorsement if all of the following qualifications are met: (1) The applicant meets the requirements of G.S. 90-629(1), (2), (3), and(6)and submits the required application and fees to the Board. (2) The applicant currently holds a valid license, certificate, or registration as a massage and bodywork therapist in another 21 jurisdiction, and that jurisdiction's requirements for licensure, certification, or registration as a massage and bodywork therapist are substantially equivalent to or exceed the requirements for licensure under this Article. (3) The applicant is currently a practitioner in good standing, with no disciplinary proceeding or unresolved complaint pending in any jurisdiction at the time a license is to be issued in this State. (4) The applicant passes a jurisprudence examination administered by the Board regarding laws and rules adopted by the Board for licensure under this Article. (5) The applicant, including applicants credentialed in a foreign country, demonstrates satisfactory proof of proficiency in the English language. (b) The Board may issue a license by endorsement to a practitioner from another state that does not license, certify, or register massage and bodywork therapists if all of the following qualifications are met: (1) The applicant meets the requirements of G.S. 90-629(1), (2), (3), and(6) and submits the required application and fees to the Board. (2) The applicant has passed a competency assessment examination that meets generally accepted psychometric principles and standards and is approved by the Board. (3) The applicant has graduated from a massage and bodywork therapy school that: (i) offers a curriculum that meets or is substantially equivalent to the standards set forth in the Board's criteria for school approval; and (ii) is licensed or approved by the regulatory authority for schools of massage and bodywork therapy in the state, province, territory, or country in which it operates or is exempt by law. (4) The applicant is currently a practitioner in good standing, with no disciplinary proceeding or unresolved complaint pending in any jurisdiction at the time a license is to be issued in this State. (5) The applicant passes a jurisprudence examination administered by the Board regarding laws and rules adopted by the Board for licensure under this Article. (6) The applicant, including an applicant credentialed in a foreign country, demonstrates satisfactory proof of proficiency in the English language. (7) Notwithstanding the requirements of subdivisions (2) and(3) of this subsection, the applicant has other credentials, to be reviewed by the Board on a case-by-case basis, that are deemed by the Board to be substantially equivalent to the requirements in subdivisions (2) and (3) of this subsection. 22 (c) The Board shall maintain a list of jurisdictions whose regulatory standards for the practice of massage and bodywork therapy have been determined by the Board to be substantially equivalent to or to exceed the requirements for licensure under this Article. (2008-224, s. 12.) §90-631. Massage and bodywork therapy schools. (a) The Board shall establish rules for the approval of massage and bodywork therapy schools. These rules shall include: (1) Basic curriculum standards that ensure graduates have the education and skills necessary to carry out the safe and effective practice of massage and bodywork therapy. (2) Standards for faculty and learning resources. (3) Requirements for reporting changes in instructional staff and curriculum. (4) A description of the process used by the Board to approve a school. Any school that offers a training program in massage and bodywork therapy, not otherwise exempt from the requirements of Board approval, shall submit an application for approval to the Board. If a massage and bodywork therapy school offers training programs at more than one physical location, each location shall constitute a separate massage and bodywork therapy school. The Board shall grant approval to a school, whether in this State or another state, that meets the criteria established by the Board. The Board shall maintain a list of approved schools and a list of community college programs operating pursuant to subsection (b) of this section. (al) The Board shall have general supervision over massage and bodywork therapy schools, not otherwise exempt from the requirements of Board approval, in this State for the purpose of protecting the health, safety, and welfare of the public by requiring that massage and bodywork therapy schools carry out their advertised promises and contracts made with their students and patrons and by requiring that approved massage and bodywork therapy schools maintain: (1) Adequate, safe, and sanitary facilities. (2) Sufficient and qualified instructional and administrative staff. (3) Satisfactory programs of operation and instructions. (b) A massage and bodywork therapy program operated by a North Carolina community college that is accredited by the Southern Association of Colleges and Schools is exempt from the approval process, licensure process, or both, established by the Board. The college shall certify annually to the Board that the program meets or exceeds the minimum standards for curriculum, faculty, and learning resources established by the Board. Students who complete the program shall qualify for licenses from the Board as if the program were approved, licensed, or both, by the Board. 23 (c) A massage and bodywork therapy program operated by a degree or diploma granting college or university that offers a degree or diploma in massage therapy and is accredited by any accrediting agency that is recognized by the United States Department of Education and is licensed by the North Carolina Community College System or The University of North Carolina Board of Governors is exempt from the approval process, licensure process, or both, established by the Board. The college or university shall certify annually to the Board that the program meets or exceeds the minimum standards for curriculum, faculty, and learning resources established by the Board. Students who complete the program shall qualify for licenses from the Board as if the program were approved, licensed, or both, by the Board. (1998-230, s. 10; 2005-276, s. 8.15(a); 2008-224, ss. 13, 14.) §90-631.1. Massage and bodywork therapy school approval required. Unless exempt from the Board approval process, no individual, association, partnership, corporation, or other entity shall open, operate, or advertise a massage and bodywork therapy school in this State unless it has first complied with all the requirements of this Article and rules adopted by the Board and has been approved by the Board. (2008-224, s. 15.) § 90-631.2. Authority to establish fees for massage and bodywork therapy school approval. (a) The Board shall establish a schedule of fees for approvals and renewals granted and for inspections performed pursuant to this Article. The fees collected under this section are intended to cover the administrative costs of the approval programs.No fee for application approval or renewal of approval shall be refunded in the event the application is rejected or the approval suspended or revoked. (b) Fees for Board approval of schools are as follows: (1) Request for Application Approval Package $20.00 (2) Initial application for approval (one program) 2,000.00 (3) Initial application for approval of additional programs (same location) 750.00 (4) Inspection for initial approval or renewal (one program) 1,500.00 (5) Inspection for initial approval or renewal of additional programs (same location) 500.00 (6) Renewal of approval (one program) 1,000.00 24 (7) Renewal of approval (each additional program) 750.00 (c) Renewal inspections shall not occur more frequently than every three years,unless necessary. (d) A school that is required to have more than one inspection in a fiscal year in order to investigate or verify areas of noncompliance with the standards for school approval shall pay a fee of one thousand five hundred dollars ($1,500) for each additional inspection. (2008-224, s. 15.) § 90-631.3. Grounds for suspension, revocation, or refusal of massage and bodywork therapy school approval; notice and hearing;judicial review. (a) The Board may deny, suspend, revoke, or refuse to approve a massage and bodywork therapy school for any of the following reasons: (1) The employment of fraud, deceit, or misrepresentation in obtaining or attempting to obtain approval of a massage and bodywork therapy school. (2) Engaging in any act or practice in violation of any of the provisions of this Article or of any of the rules adopted by the Board, or aiding, abetting, or assisting any other person in the violation of the provisions of this Article or rules adopted by the Board. (3) Failure to require that its students must complete the minimum standards in order to graduate. (4) Operating a massage and bodywork therapy school without approval from this Board. (5) Engaging in conduct that could result in harm or injury to the public. (6) The employment of fraud, deceit, or misrepresentation when communicating with the general public, health care professionals, or other business professionals. (7) Falsely holding out a massage and bodywork therapy school as approved by this Board. (8) Failure to allow authorized representatives of the Board to conduct inspections of the massage and bodywork therapy school or refusing to make available to the Board, following written notice to the massage and bodywork therapy school, the requested information pertaining to the requirements for approval set forth in this Article. (9) Failure to notify the Board in writing within 30 days of any notification it receives from its accrediting agency or the United States Department of Education Office of Postsecondary Education of a show cause action,probation action, or denial of accreditation. 25 (10) The applicant for or holder of massage and bodywork therapy school approval has pleaded guilty, entered a plea of nolo contendere, or has been found guilty of a crime involving moral turpitude by a judge or jury in any state or federal court. (b) A refusal to issue,refusal to renew, or suspension or revocation of massage and bodywork therapy school approval under this section shall be made in accordance with Chapter 150B of the General Statutes. (2008-224, s. 15.) §90-632. License renewal and continuing education. (a) The license to practice under this Article shall be renewed every two years. (b) The continuing education requirement for the initial license renewal is as follows: (1) If the licensure period is two years or more, each licensee shall submit to the Board evidence of the successful completion of at least 24 hours of study, as approved by the Board, since the initial licensure application date in the practice of massage and bodywork therapy. (2) If the licensure period is less than two years, but more than one year, each licensee shall submit to the Board evidence of the successful completion of at least 12 hours of study, as approved by the Board, since the initial licensure application date in the practice of massage and bodywork therapy. (c) For subsequent license renewals, each licensee shall submit to the Board evidence of the successful completion of at least 24 hours of study, as approved by the Board, since the previous licensure renewal submission date in the practice of massage and bodywork therapy. (1998-230, s. 10; 2008-224, s. 16.) §90-633. Disciplinary action. (a) The Board may deny, suspend, revoke, or refuse to license a massage and bodywork therapist or applicant for any of the following: (1) The employment of fraud, deceit, or misrepresentation in obtaining or attempting to obtain a license or the renewal of a license. (2) The use of drugs or intoxicating liquors to an extent that affects professional competency. (3) Conviction of an offense under any municipal, State, or federal narcotic or controlled substance law. (4) Conviction of a felony or other public offense involving moral turpitude. (5) An adjudication of insanity or incompetency. (6) Engaging in any act or practice in violation of any of the provisions of this Article or of any of the rules adopted by the Board, or aiding, 26 abetting, or assisting any other person in the violation of these provisions or rules. For purposes of this subdivision, the phrase "aiding, abetting, or assisting any other person" does not include acts intended to inform the individual who is not in compliance with this Article of the steps necessary to comply with this Article or any rules adopted by the Board. (7) The commission of an act of malpractice, gross negligence, or incompetency. (8) Practice as a licensee under this Article without a valid certificate or renewal. (9) Engaging in conduct that could result in harm or injury to the public. (10) The employment of fraud, deceit, or misrepresentation when communicating with the general public, health care professionals, or other business professionals. (11) Falsely holding out himself or herself as licensed or certified in any discipline of massage and bodywork therapy without successfully completing training approved by the Board in that specialty. (12) The application of systems of activity by a massage and bodywork therapist during the course of therapy with the intent of providing sexual stimulation or otherwise pursuing sexual contact. (b) The Board may reinstate a revoked license, revoke censure or other judgment, or remove other licensure restrictions if the Board finds that the reasons for revocation, censure, or other judgment or other licensure restrictions no longer exist and the massage and bodywork therapist or applicant can reasonably be expected to safely and properly practice as a massage and bodywork therapist. (1998-230, s. 10; 2008-224, s. 17.) §90-634. Enforcement; injunctive relief. (a) It is unlawful for a person not licensed or exempted under this Article to engage in any of the following: (1) Practice of massage and bodywork therapy. (2) Advertise, represent, or hold out himself or herself to others to be a massage and bodywork therapist. (3) Use any title descriptive of any branch of massage and bodywork therapy, as provided in G.S. 90-623, to describe his or her practice. (b) A person who violates subsection (a) of this section shall be guilty of a Class 1 misdemeanor. (bl) Unless exempt from the approval process, it is unlawful for an individual, association, partnership, corporation, or other entity to open, operate, or advertise a 27 massage and bodywork therapy school without first having obtained the approval required by G.S. 90-631.1. (b2) An individual, association, partnership, corporation, or other entity that violates subsection(bl) of this section shall be guilty of a Class 3 misdemeanor. (c) The Board may make application to superior court for an order enjoining a violation of this Article. Upon a showing by the Board that a person, association, partnership, corporation, or other entity has violated or is about to violate this Article, the court may grant an injunction, restraining order, or take other appropriate action. (1998-230, s. 10; 2008-224, s. 18;2009-570, s. 12.) §90-634.1. Civil penalties; disciplinary costs. (a) Authority to Assess Civil Penalties. - The Board may assess a civil penalty not in excess of one thousand dollars ($1,000) for the violation of any section of this Article or the violation of any rules adopted by the Board. The continuation of the same act for which the penalty is imposed shall not be the basis for an additional penalty unless the penalty is imposed against the same party who has repeated the same act for which the discipline has previously been imposed. The clear proceeds of any civil penalty assessed under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. (b) Consideration Factors. - Before imposing and assessing a civil penalty, the Board shall consider the following factors: (1) The nature, gravity, and persistence of the particular violation. (2) The appropriateness of the imposition of a civil penalty when considered alone or in combination with other punishment. (3) Whether the violation was willful and malicious. (4) Any other factors that would tend to mitigate or aggravate the violations found to exist. (c) Schedule of Civil Penalties. - The Board shall establish a schedule of civil penalties for violations of this Article and rules adopted by the Board. (d) Transcriptions Costs. - The Board may assess the costs of transcriptions of a disciplinary hearing held by the Board or the Office of Administrative Hearings to include the recording of the hearing by a court reporter and transcription of the proceeding against a person found to be in violation of this Article or rules adopted by the Board. (2003-348, s. 4; 2008-224, s. 19.) §90-635. Third-party reimbursement. Nothing in this Article shall be construed to require direct third-party reimbursement to persons licensed under this Article. (1998-230, s. 10.) §90-636. Regulation by county or municipality. 28 Nothing in this Article shall be construed to prohibit a county or municipality from regulating persons covered by this Article,however, a county or municipality may not impose regulations that are inconsistent with this Article. (1998-230, s. 10.) §§90-637 through 90-639. Reserved for future codification purposes.