DISCLAIMER

 

08-019-O

ORDINANCE NO. __________


AN ORDINANCE AMENDING SECTIONS 5-32, 5-34, 5-36, 5-37, 5-38, 5-40, 5-41 AND 5-42 OF THE DULUTH CITY CODE, 1959, AS AMENDED, RELATING TO MASSAGE ESTABLISHMENT LICENSING.

CITY PROPOSAL:

The city of Duluth does ordain:

     Section 1. That Section 5-32 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-32. Definitions.

     (a)  Massage. As used in this Article, the term massage means scientific manipulation of the soft tissue of the body of one person with the hands of another person for the purpose of relaxation or therapy. The practice of massage is declared to be distinct from the practice of medicine, surgery, osteopathy, chiropractic, nursing, physical therapy, or podiatry by persons duly licensed or registered in this state to practice such, and does not include athletic directors and trainers employed by a school or bona fide athletic team, beauty culturists or barbers;

     (b)  Massage establishment. The term massage establishment means any business establishment having a fixed place of business where any person engages in, or permits another person to be engaged in, the massage of clients, including health clubs, beauty salons, saunas and steam baths that offer massage therapy, but excluding residential premises where massage therapy is practiced as a home occupation under the terms of Chapter 50 of this Code;

     (c)  The term employee means a person who is paid an hourly wage by a licensee for performing work in licensee's massage establishment.

     Section 2. That Section 5-34 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-34. Application for license.

     Application for a massage establishment license shall be made to the city clerk on forms supplied by said clerk. It shall contain the following information:

     (a)  A description of services to be provided;

     (b)  A description and location of the premises to be licensed;

     (c)  The full names and addresses of the property owner, business owner, lessee and manager, operator and the date of birth of each;

     (d)  If applicant is a corporation, the names and residence addresses of each of the officers and directors of said corporation and of each stockholder owning more than ten percent of the stock of the corporation, and the address of the corporation itself, if different from the address of the massage establishment;

     (e)  If applicant is a partnership, the names and residence addresses of each of the partners including limited partners, and the address of the partnership itself, if different from the address of the massage establishment;

     (f)  Whether any of the aforementioned individuals have ever been convicted of any crime or offense other than a traffic offense, and if so, a description of the offense as to time, place, date and disposition;

     (g)  Whether any of the aforementioned individuals has ever held a license to run a massage establishment or similar business in another jurisdiction, and, if so, whether such license was ever revoked, suspended or denied;

     (h)  The method of payment under which massage therapists are paid, and the economic basis upon which massage therapists are paid, and the full legal name, date of birth and address of each massage therapist providing massage at the applicant’s massage establishment;

     (i)  Whether any of the individuals identified in response to clause (e) of this Section have been disciplined by the state of Minnesota pursuant to Minnesota Statutes Chapter 146A, or its successor.

     Section 3. That Section 5-36 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-36. Issuance.

     (a)  No license under this Article shall be issued unless it is approved by the administrative assistant chief administrative officer upon advice from the police department and unless the establishment has passed fire and health inspections. The administrative assistant chief administrative officer shall not approve any license if he has reasonable grounds to believe:

           (1)  That the granting of said license would result in violations of the law;

           (2)  That the license application contains false or misleading statements;

           (3)  That other good cause exists for denying the license;

     (b)  If the chief of police or administrative assistant chief administrative officer finds that they do not have adequate information to evaluate a license application, they may hold the application for up to 30 days for further investigation. During this period they may direct the applicant, manager or agent to appear at any reasonable time and place to give under oath information concerning the application. No license shall be granted to any applicant who refuses to appear and cooperate with the investigation.

     Section 4. That Section 5-37 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-37. Massage therapists; employment relationships; licenses required.

     (a)  No massage establishment licensee shall permit any person to perform a massage in the licensee's massage establishment unless such person is an employee of said licensee and unless such person is licensed as a massage therapist as provided herein. No person shall massage another for compensation unless such person has obtained a massage therapist license as provided herein and unless such person is the licensee of said massage establishment, or an employee of said massage establishment, or is lawfully engaging in a massage practice as a home occupation under the terms of Chapter 50 of this Code;

     (b)  Massage therapist licenses shall be issued by the city clerk after approval by the chief of police. Applicant must be 18 years of age or over, of good moral character and eligible for a license under the terms of Minnesota Statutes Chapter 364 and the provisions of this Article. Applicant must also have successfully completed a course of study in massage of not less than 500 hours from a recognized school where the theory, method, profession or work of massage is taught; except that any person licensed as a massage therapist before July 15, 2001, may continue to receive a license notwithstanding the fact such therapist has less than 500 hours of training. Applicant shall submit a diploma, certificate or other written proof of educational attainment with the application, including the name and address of the school;

     (c)  An application for such license shall be filed with the city clerk, which application shall state the name, address, date of birth, criminal record, identification of each massage establishment located in the city at which the applicant will perform massage, if then currently known, and other pertinent information as required by the chief of police. Upon receipt of the application the chief of police shall cause all necessary investigations to be made so that he may approve or disapprove of the license;

     (d)  The fee for such license shall be set in accordance with Section 31-6(a) of this Code. The license year shall be from May 1 to April 30 and shall not be prorated.

     Section 5. That Section 5-38 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-38. Prohibited acts.

     (a)  No massage establishment shall:

           (1)  Remain open between 1:00 a.m. and 6:00 a.m. on any day;

           (2)  Hire or contract with as a massage therapist any person who is not licensed pursuant to this Article;

           (3)  Require or permit any massage therapist to pay any fee, rent, or sum of money for the right to perform massages in the massage establishment or require massage therapists to pay any other fee as a term or condition of employment;

       (4) (3)   Allow any alcoholic beverages to be kept, sold, dispensed or consumed on the premises;

       (5) (4)   Permit massages to be given in any cubicle, room or booth with a locking door;

           (5)  Violate any provision of Minnesota Statutes Chapter 146A, or its successor;

     (b)  No massage therapist shall:

           (1)  Massage or offer to massage the genital area of any customer;

           (2)  Perform or offer to perform any act prohibited by Section 34-18 of the Duluth City Code;

           (3)  Violate any provision of Minnesota Statutes Chapter 146A, or its successor.

     Section 6. That Section 5-40 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-40. Licensee to maintain order on premises.

     The licensee, or, in the case of a corporate licensee, the manager of any massage establishment shall personally supervise the business operations and shall have a non-delegable duty to insure that no acts of prostitution, sexual misconduct or other violations of this Article occur on the licensed premises. To this end, every act done in violation of this Article on the licensed premises by an employee, massage therapist, manager or agent of the licensee shall also be deemed to be an act of the licensee.

     Section 7. That Section 5-41 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-41. Suspension and revocation of licenses.

     The administrative assistant chief administrative officer may revoke or suspend any license issued pursuant to this Article if, after giving the licensee an opportunity to be heard on the matter, he such officer finds:

     (a)  The licensee has violated a provision of this Article or any other law relating to the conduct of its operation including, but not limited to, state, federal or local laws on morals, prostitution, health, fire safety or liquor; or

     (b)  The licensee secured the license through misrepresentation or fraud or misstated any material fact in the application; or

     (c)  Failure of the licensee to cooperate with police, fire or health officers in any investigation relating to their operations or failure to admit police officers into the establishment at any time when people are present in the establishment; or

     (d)  The establishment is operated in such a way as to endanger public health or safety; or

     (e)  The establishment is operated in such a way as to constitute a public nuisance.

     Section 8. That Section 5-42 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-42. Appeals.

     Any person aggrieved by a licensing decision of the administrative assistant chief administrative officer under this Article may appeal such decision to the city council by filing written notice of appeal with the city clerk within 15 days after such decision is rendered.

     Section 9. That this ordinance shall take effect 30 days after its passage and publication.


CLK JJC:jmr 2/21/2008


STATEMENT OF PURPOSE: This ordinance amends Article VI relating to massage establishments.


Section 1 of this ordinance amends Section 5-32 of the Code by eliminating the definition of employee.


Section 2 of this ordinance amends Section 5-34 of the Code by providing for additional information at the time of license application by a massage establishment.


Section 3 of this ordinance amends Section 5-36 of the Code by changing the use of the term “administrative assistant” to “chief administrative officer” and eliminating the requirement that licensing decisions be made within 30 days.


Section 4 of this ordinance amends Section 5-37 of the Code by eliminating the requirement that massage therapists be employees of the massage establishment. The amendment would authorize the independent contractor relationship between the establishment and the massage therapist as this has become a common business arrangement in this profession.


Section 5 of this ordinance amends Section 5-38 of the Code by eliminating the prohibition against business arrangements other than the master/servant relationship and by prohibiting acts now prohibited by state law.


Section 6 of this ordinance amends Section 5-40 of the Code by referring to a massage therapist as well as a person employed by the massage establishment.


Section 7 of this ordinance amends Section 5-41 of the Code by changing the use of the term “administrative assistant” to “chief administrative officer” and clarifying that any one of the cited grounds for discipline may support disciplinary action.


Section 8 of this ordinance amends Section 5-42 of the Code by changing the use of the term “administrative assistant” to “chief administrative officer.”