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19991026 1999-26ORDINANCE NO. 1999- 26 AN ORDINANCE ENACTING NEW SECTIONS 11-31 THROUGH 11-46, NEW ARTICLE V CHAPTER 11, PERTAINING TO MASSAGE ESTABLISHMENTS. BE IT ORDAINED, by the City Council of the City of Fairfax, that new Sections 11-31, through 11-46, new Article V, Chapter 11 of the Code of the City of Fairfax, Virginia, are hereby enacted: ARTICLE V. MASSAGE ESTABLISHMENT ORDINANCE Sec. 11-31. Short Title. This Article shall be known, and may be referred to and cited, as the Massage Establishment Ordinance of the City of Fairfax, Virginia. Sec. 11-32. Declaration of Policy. It shall be the public policy of the City of Fairfax, Virginia, and the City Council of the City of Fairfax hereby declares, that the licensing of massage establishments is required to protect the public health, safety and general welfare. Sec. 11-33. Definitions. For the purposes of this Article, the following words and phrases shall have the meanings assigned below, when used in this Article, except in those situations where the context clearly indicates a different meaning: (1) Massage: A method of treating the external parts of the human body by rubbing, stroking, kneading, tapping or vibrating with the hand or any instrument for pay. (2) Massage Establishment: Any establishment having a fixed place of business where massages are administered for pay, including but not limited to, massage parlors, health clubs, sauna baths and steam baths. This definition shall not be construed to include a hospital, nursing home, medical clinic, or the office of a physician, surgeon, chiropractor, osteopath, or physical therapist duly licensed by the Commonwealth of Virginia, nor barber shops or beauty salons in which massages are administered only to the scalp, the face, the neck or the shoulder. This definition shall not be construed to include a volunteer fire department, a volunteer rescue squad or a nonprofit organization operating a community center, swimming pool, tennis court or other educational, cultural, recreational and athletic facilities and facilities for the welfare of the residents of the area. (3) Massage Technician: Any individual who administers a massage to another 1999-26 -2 individual at a massage establishment for pay. This definition shall not be construed to include a physician, surgeon, chiropractor, osteopath, physical therapist, or nurse duly licensed by the Commonwealth of Virginia. (4) Erogenous Area: The pubic area, penis, scrotum, vulva, perineum, or anus of any person. (5) Person: Any individual, firm, partnership, corporation, company, association, or joint stock association. (6) Off-Premises Massage Establishment: Any establishment engaged in arranging for massages to be given for a fee or in giving massages for a fee when such massages are not given at a massage establishment shall be considered an off- premises massage establishment. This definition shall not be construed to include a hospital, nursing home, medical clinic, or the office of a physician, surgeon, chiropractor, osteopath, or physical therapist duly licensed by the Commonwealth of Virginia, nor barber shops or beauty salons in which massages are administered only to the scalp, the face, the neck, the shoulder or the hair. (7) Director of Health: The Fairfax County Director of Health or his duly authorized agent. (6) Ci_ty Manager: The City Manager of the City of Fairfax, Virginia, or his designee. Sec. 11-34 Enforcement. (a) Penalty: The penalty provisions of Section 1-6 of the Code of the City of Fairfax, Virginia, shall be applicable to this article. (b) Violation: It shall be unlawful for any person to violate any provision or provisions of this article. Such violation shall constitute a Class One Misdemeanor. (c) Revocation of Permits: Notwithstanding the other provisions of this Article, any massage establishment permit or massage technician permit granted under this article may be revoked by the City Manager after notice and hearing if the permittee (if the permittee is a partnership or association, any partner or member thereof, or if the permittee is a corporation, any officer, director, or shareholder owning ten percent (10%) or more of its capital stock): (1) Has been convicted or pleaded nolo contendere to or suffered a forfeiture on a charge of violating any provision included in Virginia Code Section 18.2-344 through 361, or Section 18.2-365 through 387, or Section 18.2-390 or 391, which / 1999-~6 laws relate to sexual offenses, or on a charge of violation of a similar law in any other jurisdiction or any felony; or (2) Has been convicted, pleaded nolo contendere, or suffered a forfeiture on a charge of violating any provision of this Article relating to massage establishments, or on a charge of violating a similar law in any other jurisdiction; or (3) Made a false statement on the application; or (4) Has failed to report a change in any of the information required by this Article within fourteen (14) days of learning of said change. Notice of the hearing before the Director for revocation of the permit shall be given in writing, setting forth the grounds of the complaint and the time and place of hearing. Such notice shall be mailed by certified mail to the permittee's last known address at least ten (10) days prior to the date set for hearing. (d) Suspension of Permits: If the City Manager finds that the massage establishment for which the massage establishment permit was issued does not conform to the standards set forth in this Article, or that permittee has refused the City Manager or other authorized person the right to enter the premises to enforce the provisions of this Article, the Director may enter an order for the immediate suspension of the massage establishment permit until such time as he finds that the reason for such suspension no longer exists. A copy of the order shall be sent to the permittee at his place of business by certified mail, which order shall set forth the masons for such suspension. The permittee shall be afforded an opportunity to be heard by the City Manager within twelve (12) days after the suspension. Notice of the heating shall be mailed by certified mail to the permittee's business address at least ten (10) days prior to the date set for heating. No person shall operate a massage establishment when subject to an order of suspension. Any massage establishment permit granted under this Article shall be suspended by the City Manager for six (6) months if more than two (2) convictions of any violation of any provision of this Article shall have occurred on the premises of the massage establishment within one (1) twelve-month period. The permittee shall receive notice of such suspension and shall be entitled to a heating before the City Manager. The notice shall be given in writing, shall set forth the grounds for the suspension, and shall state the time and place of the heating. Such notice shall be mailed by certified mail to the permittee's last-known address at least ten (10) days prior to the date set for the heating. Sec. 11-35 Massage Establishment Permit Required. (a) No person shall engage in, conduct, or carry on a massage establishment unless an 1999-26 -4 application therefor has been approved and permit issued by the City Manager in compliance with this Article. (b) Each application for a massage establishment permit shall be accompanied by an investigation fee of Fifty Dollars ($50.00), no part of which shall be refundable. Such fee shall be in addition to any permit fee required by this Article, or any business license tax required to be paid under the Code of the City of Fairfax, Virginia. Sec. 11-36 Massage Establishment Permit Fee and Term. Every person conducting or engaging in business as a massage establishment shall pay an annual permit fee of Two Thousand Dollars ($2,000.00), which permit must be renewed one (1) year from the date of issue. Said fee shall be in addition to any business license tax required to be paid pursuant to the Code of the City of Fairfax, Virginia. Sec. 11-37 Form of Massage Establishment Permit Application. (a) Each application for a massage establishment permit shall be on a form provided by the City Manager and shall be submitted to the City Manager. Each such form shall contain the following information: (1) A description of the facilities and services to be available on the premises of the proposed establishment. (2) The location and mailing address of each applicant. (3) The name and residence address of each applicant. If the applicant is an association or a partnership, the names and residence addresses of each of the associates or partners. If the 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 (10%) of the stock of the corporation. (4) If the applicant is an individual, all other residences of the applicant for the three (3) year period immediately prior to the application. If the applicant is an association or partnership, the names and residence of each associate partner for the three (3) year period immediately prior to the application. If the applicant is a corporation, all of the residences for a three (3) year period of each of the officers and directors of said corporation and of each stockholder owning more than ten percent (10%) of the stock of the corporation. (5) If the applicant is an individual, written proof that the applicant is eighteen (18) years of age or older. If the applicant is a partnership, written proof that each partner is eighteen (18) years of age of older. If the applicant is a corporation, 1999-26 -5 written proof that each of the officers and directors of said corporation and of each stockholder owning more than ten percent (10%) of the stock of the corporation is eighteen (18) years of age or older. (6) A complete set of fingerprints, if the applicant is an individual, or of each partner, if the applicant is a partnership, or of each officer and director and of each stockholder owning more than ten percent (10%) of the stock of the corporation, if the applicant is a corporation. The fingerprints shall be taken by the Chief of Police, or his agent. (7) If the applicant is an individual, the business, occupation, or employment of the applicant for the three (3) year period immediately preceding the date of the application. If the applicant is an association or partnership, the business occupation or employment of each associate or partner for the three (3) year period immediately prior to the date of the application. (8) The history of the applicant in the operation of massage establishments or similar business or occupation, including, but not limited to, whether or not such person, in previously operating in this or another city or state under permit, has had such permit revoked or suspended and the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation. (9) The criminal record, if any, other than misdemeanor traffic violations, of the applicant, or of any associate or partner of the association or partnership, if the applicant is an association or partnership, or of any officer or director of the corporation and of any shareholder owning more than ten percent (10%) of the stock of the corporation, if the applicant is a corporation. (10) The name of the operator or manager of the massage establishment. (b) Each holder of a massage establishment permit shall report to the City Manager any change in any of the information required in subsection (a) of this section, such report to be made within fourteen (14) days of learning of the change. Failure to report a change atter learning of it shall be grounds for revocation of the permit. Sec. 11-38 Permit Required for Massage Technician No massage technician shall administer a massage in a massage establishment without a valid, non-suspended permit issued pursuant to this Article. Sec. 11-39 Massage Technician Permit Fee; Term: Health Certificate Required Every person conducting or engaging in the administration of massages in a massage 1999-26 -6 establishment shall pay an annual permit fee of Twenty-five Dollars ($25.00) which permit shall be renewed one (1) year from date of issue. Said fee shall be in addition to any business license tax required to be paid pursuant to the Code of the City of Fairfax, Virginia. The permittee must submit a certificate fi.om a medical doctor stating that the penrfittee, within thirty (30) days before the for a new permit, or renewal of a permit, has been examined and found free of any identifiable disease which would create a substantial medical risk to any patron. Sec. 11-40 Form of Massage Technician Permit Application~ (a) Each application for a massage technician permit shall be upon a form provided by the City Manager. Each such form shall contain the following information: (1) The applicant's full name, residential addresses and telephone number. (2) The name and address of the massage establishment where the applicant is to be employed and the name of the owner of same. (3) The names and addresses of any and all previous massage establishments where applicant has been employed as a massage technician. (4) A sworn statement regarding the criminal record, if any, other than misdemeanor traffic violations, of the applicant. (5) Whether the applicant has previously been denied a permit to perform as a massage technician, or whether any permit has been revoked and, if so, the circumstances of such denial or revocation. (6) A complete set of the applicant's fingerprints, which shall be taken by the Chief of Police or his designee. (7) Written proof that the applicant is eighteen (18) years of age or older. (b) Each holder of a massage technician permit shall report to the City Manager any change in any of the information required in subsection (a) of this section, such report to be made within fourteen (14) days of learning of the change. Failure to report a change after learning of it shall be grounds for revocation of the permit. Sec. 11-41 Grounds for Denial of Massage Establishment or Massage Technician Permit. The City Manager shall deny any application for a massage establishment permit or a massage technician permit under this Article after notice and hearing if the City Manager finds: (a) That the applicant has, within the preceding ten (10) years, been convicted of or pleaded nolo contendere to or suffered any forfeiture on a charge of violating any provision included in Section. 11-34(c)(1), above; or (b) That the applicant has been convicted, pleaded nolo contendere, or suffered a forfeiture 1999-26 -7 on a charge of violating any section of this Article or a similar law in any other jurisdiction; or (c) That the applicant is under the age of eighteen (18) years; or (d) That the applicant has made any false statement on any application required by this Article. The City Manager shall act on the application within sixty (60) days from the date of the application. Notice of the hearing before the City Manager for denial of the application shall be given in writing, setting forth the grounds of the complaint and the time and place of heating. Such notice shall be mailed by certified mail to the applicant's last known address at least ten (10) days prior to the date set for hearing. Sec. 11-42 Transfer of Permits. No permit issued under this Article shall be transferable from one person to another. Sec. 11-43 Standards of Massage Establishments; Display of Permits; Right of Entry. (a) A recognizable and legible sign shall be posted at the main entrance identifying the premises as a massage establishment, Which sign shall comply with the requirements of the Code of the City ofFairfax, Virginia, pertaining to signs. (b) Massage establishment facilities shall comply with all requirements of the Virginia Uniform Statewide Building Code, as amended, including but not limited to the provision of sanitary facilities. All required facilities must be located within the rental area of the establishment, and be utilized exclusively by the massage establishment. (c) All physical facilities, walls, ceilings, floors, etc. for the massage establishment must be in good repair and maintained in a clean and sanitary condition. All sanitary facilities, steam or vapor rooms, or steam or vapor cabinets, etc. shall be cleaned and disinfected at least once each day the business is in operation. (d) Clean and sanitary towels and linens shall be provided for each patron of the establishment. No common or repeated use of towels or linens shall be permitted. (e) No massage establishment shall serve any patron when the skin of the patron is inflamed or erupted unless the patron submits a certificate from a duly licensed physician to the Director of Health stating that such inflammation or eruption is not communicable. (f) Every massage technician shall cleanse his or her hands thoroughly with soap and hot running water immediately before serving each patron. (g) Every person to whom a massage establishment permit shall have been granted shall display said massage establishment permit in a conspicuous place in the massage establishment so that it may be readily seen by persons entering the premises. 1999-26 -8 (h) Every person to whom a massage technician permit shall have been granted shall, while in a massage establishment, display in a conspicuous place in the massage establishment said massage technician permit. (i) A copy of the Massage Establishment Ordinance shall be displayed in a conspicuous place in the massage establishment so that it may be readily seen and read by persons entering the premises and employees of the establishment. (j) The City Manager, Director of Health, Fire and Rescue Services and Police Department are hereby authorized to enter, examine and survey during business hours any premises in the City for which a massage establishment permit has been issued pursuant to this Article for the purpose of enforcing the provisions of this Article. This Section shall not limit the right of entry vested in any law enforcement agency. Sec. 11-44 Unlawful Acts. (a) It shall be unlawful for person to engage in, conduct, or carry on a massage establishment without a valid, non-suspended permit issued pursuant to this Article. (b) It shall be unlawful for person to administer a massage in a massage establishment without a valid, non-suspended permit issued pursuant to this Article. (c) It shall be unlawful for person, in a massage establishment, to place his or her hands upon, to touch with any part of his or her body, to fondle in any manner, or to massage, an erogenous area of any person. (d) It shall be unlawful for person, in a massage establishment, to expose his or her erogenous area, or any portion thereof, to any other person. It shall also be unlawful for any person, in a massage establishment, to expose the erogenous area, or any portion thereof of any other person. (e) It shall be unlawful for person, while in the presence of any other person in a massage establishment, to fail to cover with a fully opaque covering, any erogenous area of his or her body. (f) It shall be unlawful for person in a massage establishment to offer to give, to give or administer a massage to any other person of the opposite sex (g) It shall be unlawful for any person to administer a massage in any other place other than a licensed massage establishment. (h) It shall be unlawful for person owning, operating, or managing a massage establishment, knowingly to cause, allow or permit in or about such massage establishment, any agent, employee or any other person under his control or supervision to perform such acts 1999-26 prohibited in this Section. (i) It shall be establishment. O) -9 unlawful to own, operate, or manage an off-premise massage No provision of this Article shall apply to police officers while in the performance of the officer's official duties relating to any violation of this Article or any other law. Sec. 11-45 Severabilty. Should any portion or portions of this Article be declared unconstitutional or invalid by a valid decree or order of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect the validity of this Article in its entirety or of any part thereof other than that portion or portions of the Article declared to be invalid. Sec. 11-46 Conflict. To the extent any provision of this Article may conflict with any other provision in the Code of the City of Fairfax, Virginia, existing on the effective date of the ordinance establishing this Article, then this Article shall prevail. This ordinance shall become effective as provided by law. INTRODUCED: October 12, 1999 PUBLIC HEARING: October 26, 1999 ENACTED: October 26, 1999 Councilman Coughlan Councilman Greenfield Councilman Lederer Councilman Petersen Councilman Rasmussen Councilman Silverthome Vote Aye Aye Absent Aye DATE ATTEST: