20000314 2000-5ORDINANCE NO. 2000-
AN ORDINANCE AMENDING ARTICLE V, CHAPTER 11, OF THE CODE
OF THE CITY OF FAIRFAX, VIRGINIA, PERTAINING TO
MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS.
BE IT ORDAINED, by the City Council of the City of Fairfax, that Article V, Chapter 11 of
the Code of the City of Fairfax, Virginia, is hereby amended to read in its entirety as follows:
ARTICLE V. MASSAGE ORDINANCE
Sec. 11-31. Short Title.
This Article shall be known, and may be referred to and cited, as the Massage
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 and massage
therapists is required to protect the public health, safety and general welfare, and the City
Council of the City of Fairfax hereby exercises its regulatory authority under the police
power.
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:
City Manager: The City Manager of the City of Fairfax, Virginia, or his
designee.
(1)
(2) Client: Any person receiving a massage from a massage therapist who has
been compensated for administering the massage.
(3) Director of Health: The Fairfax County Director of Health, or his designee.
(4) Disqualifying Offenses: Offenses which disqualify an applicant from
obtaining a permit pursuant to this Article or, if the offender already holds a permit,
which mandate revocation of the permit. Disqualifying offenses are the following:
(a)
(b)
conviction, plea of nolo contendere, or a forfeiture on a charge of
violating any provision of §§ 18.2-346, 18.2-347 through 18.2-349,
18.2-355 through 18.2-358, 18.2-361, 18.2-368, 18.2-370, 18.2-370.1,
18.2-371, 18.2-386.1 or 18.2-387 of the Code of Virginia, which laws
relate to sexual offenses, or any provision of an ordinance of the City or
a law or ordinance of any other jurisdiction which prohibits the same
conduct, within the past ten (10) years.
conviction, plea of nolo contendere, or a forfeiture on a charge of
violating any provision of this Article, or on a charge of violating a
similar law in any other jurisdiction, within the past ten (10) years.
(c) making a false statement on a permit application.
2000-5 -2
(5)
Erogenous Area: The genitals and the nipples and areolae.
(6) Massage: The treatment, for compensation, of soft tissues for therapeutic
purposes by the application of massage and bodywork techniques based on the
manipulation or application of pressure to the muscular structure or soft tissues of the
human body, unless the massage is excluded from regulation herein.
(7) Massage Establishment: Any fixed place of business where massages are
administered to a client, unless the place is excluded from regulation herein.
(8) Massage Therapist: Any person certified as a massage therapist by the Board
of Nursing of the Commonwealth of Virginia.
(9) Off-Premises Massage: Any massage administered for compensation at a
location other than at a massage establishment.
(10) Person: Any individual, firm, partnership, corporation, company, association
or joint stock association.
Sec. 11-34. Exclusions.
The provisions of this Article shall not apply to the following massages, and such
massages are expressly excluded from the requirements of this Article:
(1) A massage administered only to the scalp, face, neck, shoulders, arms, hands,
and/or the feet.
(2) A massage administered in a hospital or medical clinic, or by a physician,
chiropractor, osteopath or physical therapist licensed by the Commonwealth of
Virginia, in any location, while such professional is engaged in the personal
performance of the duties of his or her profession.
(3) A massage administered in a nursing home, convalescent care facility, assisted
living facility, progressive care facility, or life care facility.
(4) A massage administered at an organized public event, such as a health fair or
sporting event, which is open for participation or viewing by the general public.
(5) A massage administered at a school which offers a massage therapy program
that has received programmatic approval from the Virginia Board of Education, Office
of Proprietary Schools, or that has been certified or approved by the Virginia Board of
Education, Office of Proprietary Schools or the Virginia State Council of Higher
Education; provided, however, that this exclusion applies only if the person
administering the massage is a student enrolled at the school and receives no
compensation for administering the massage.
Sec. 11-35. 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.
2000-5 -3
(b) Violation: It shall be unlawful for any person to violate any provision or provisions of
this Article. Any person violating any provision or provisions of this Article shall be guilty of
a class 1 misdemeanor.
(c) Right of entry to enforce article: The City Manager, Director of Health,
Department of Fire and Rescue Services, Police Department and zoning administrator and
building official, or their duly authorized agents, 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 purposes of inspection and to enforce
the provisions of this Article. The Director of Health shall inspect each massage
establishment at least one time per year to determine whether it is being operated in
compliance with this Article. This section shall not restrict or limit the tight of entry vested in
any law enforcement agency.
(d) Revocation of permits: Notwithstanding the other provisions of this Article, any
massage establishment permit or massage therapist permit granted under this Article may be
revoked by the City Manager after notice and hearing, as provided herein, if the permittee
(individually, or 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), has committed any disqualifying offense or
repeatedly has had a permit issued under this Article suspended.
If the City Manager believes that grounds for revocation of a permit exist, the City
Manager shall give the permittee written notice enumerating the grounds and declaring the
City Manager's intent to hold a hearing before the City Manager for revocation of the permit,
as well as indicating the time and place of hearing. Such notice shall be mailed, by certified
mail, to the permittees last known address at least ten (10) days prior to the time set for
heating. At the hearing, the permittee may be represented by counsel, may cross-examine
witnesses and may present evidence in his favor. If the City Manager finds that any ground
for revocation in fact exists, the City Manager shall revoke the permit. The City Manager
shall issue a written notice of his findings and decision within ten (10) work days of the
heating.
(e) Suspension of permits: Grounds for suspension for any permit granted under this Article
exist if the permittee has failed to comply with any provisions of this Article other than those
which mandate revocation. 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, as provided herein, the
City Manager may enter an order for the immediate suspension of the permit, with or without
notice, until such time as he finds that the reason for such suspension no longer exists. The
City Manager may end a suspension at any time if he is satisfied that the reason for the
suspension has been corrected. A copy of any suspension order shall be hand-delivered or
sent to the permittee at his place of business by certified mail, which order shall set forth the
reasons for such suspension. The permittee shall be afforded an opportunity to be heard by
the City Manager within thirty (30) days after the order of suspension of the permit. 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, as provided above. 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 permittees last-known address at
least ten (10) days prior to the time set for the heating.
2000-5 -4
Sec. 11-36. Massage establishment permit required; term: fee.
(a) No person shall engage in, conduct, or carry on a massage establishment within the
City of Fairfax without a valid, non-suspended permit issued pursuant to this Article.
(b) A massage establishment permit shall be valid for one (1) year from the date of
issuance, unless sooner suspended or revoked. Within sixty (60) days before the expiration
date, a permitted massage establishment may apply for a new permit.
(c) Each application for a massage establishment permit shall be accompanied by an
application fee of Seventy-Five Dollars ($75.00), no part of which shall be refundable. Such
fee shall be in addition to any business license tax required to be paid under the Code of the
City of Fairfax, Virginia, or any other taxes or fees which may be required to engage in the
business, or any investigation fees as provided herein.
Sec. 11-37. Form of massage establishment permit application.
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. The applicant shall provide full
answers to all questions on the application under oath. Each such form shall contain the
following information, as well as any other information which the City Manager deems
necessary to properly evaluate the application:
(1) A description of the facilities and services to be available on the premises of the
proposed massage establishment, and the name under which the proposed massage
establishment will operate.
(2) The location and mailing address of the proposed massage establishment.
(3) The name and residence address of each applicant, and any names under which the
applicant previously was known. 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.
(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, written proof that each of the
officers and directors of said corporation is eighteen (18) years of age or older.
(6) A complete set of fingerprints and photographs of the applicant, of a size and form
designated by the City Manager, or of each partner, if the applicant is a partnership, or of each
officer and director of the corporation, if the applicant is a corporation. The fingerprints shall
be taken by the Chief of Police, or his agent.
2000-5 -5
(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 a partnership or corporation, the business occupation or employment of each
partner, officer or director for the three (3) year period immediately prior to the date of the
application.
(8) Whether the applicant, either individually or as part of a partnership or corporation,
currently holds or previously held a permit or license to operate a massage establishment or to
administer massages anywhere in the Commonwealth of Virginia or any other state or
locality. If the answer is affirmative, the license or permit number, the identity of the issuing
authority and whether such permit or license has ever been revoked or suspended and the
reason(s) therefore. The history of the applicant, whether individually or as part of a
partnership or corporation, in the operation of massage establishments or similar business or
occupation, including, but not limited to, whether or not such applicant , 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, if the applicant is a
corporation. The applicant shall submit a consent form allowing the City Manager to obtain a
search of the Central Criminal Records Exchange ("CCRE"). Any fees incurred by the City
in obtaining the applicant's CCRE information, including that of any associate, partner,
officer or director required hereunder to submit information, shall be reimbursed by the
applicant to the City prior to the issuance of a massage establishment permit.
(10) The name of the operator or manager of the massage establishment. If the owner or
manager of the massage establishment is not an applicant, then the operator or manager must
provide the information required in this section relative to the applicant.
Sec. 11-38. Massage therapist permit required: term: fee.
(a) No person shall administer a massage in a massage establishment or at any other
location within the City of Fairfax without a valid, non-suspended permit issued pursuant to
this Article.
(b) It shall be unlawful for the owner, operator or manager of any massage establishment
to allow any person who does not have the massage therapist permit required by this Article
to administer any massage in the massage establishment.
(c) The City Manager shall not issue a massage therapist permit to any person who is not
certified by the Board of Nursing of the Commonwealth of Virginia as a massage therapist.
(d) A massage therapist permit shall be valid for one (1) year from the date of issuance,
unless sooner suspended or revoked. Within thirty (30) days before the expiration date of the
permit, a permitted massage therapist may apply for a new permit.
(e) Every person applying for a massage therapist permit shall pay an application fee of
Fifty Dollars ($50.00). Said fee shall be in addition to any business license tax or any other
tax or imposition required to be paid pursuant to the Code of the City of Fairfax, Virginia, or
any investigative fee imposed herein.
2000-5 -6
Sec. 11-39 Form of massage therapist permit application; duty to update; validity of state
certification.
(a) Each application for a massage therapist permit shall be upon a form provided by the
City Manager and shall be submitted to the City Manager. The applicant shall provide full
answers to all questions on the application under oath. Each such form shall contain the
following information, as well as any other information which the City Manager deems
necessary to properly evaluate the application:
(1) The applicants full name, date of birth, residential and business addresses and
telephone numbers, and any names by which the applicant was previously known.
(2) A copy of the applicant's massage therapist certification from the Board of
Nursing of the Commonwealth.
(3) The applicant's personal characteristics, such as height, weight, eye color, hair
color, sex and race.
(4) The names and addresses of any and all previous massage establishments
where applicant has been employed as a massage therapist within the past three (3)
years.
(5) A sworn statement regarding the criminal record, if any, other than
misdemeanor traffic violations, of the applicant.
(6) Whether the applicant currently holds or previously held a permit or license to
offer or administer massages anywhere in Virginia or in any other locality. If the
applicant holds or has previously held any such permit or license, the applicant shall
provide the license or permit number and whether any license or permit has been
revoked and, if so, the circumstances of such revocation.
(7) A complete set of the applicant=s fingerprints, which shall be taken by the
Chief of Police or his designee, and photographs of the applicant, of a size and form
designated by the City Manager, and a consent form allowing the City Manager to
obtain a search of the CCRE. Any fees incurred by the City in obtaining the
applicant's CCRE information shall be reimbursed by the applicant to the City prior to
the issuance of a massage therapist permit.
(b) Each holder of a massage therapist 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.
(c) The validity of a massage therapist permit issued under this Article is dependent on
the validity of the state certification as a massage therapist. Suspension of a massage
therapist's certification by the Commonwealth of Virginia shall result in the automatic
suspension of the permit issued under this Article. Revocation of a massage therapist's
certification by the Commonwealth of Virginia shall result in the automatic revocation of the
permit issued under this Article. Automatic suspensions and revocations are not subject to the
notice and hearing requirements contained in this Article.
2000-5
(b) If the City Manager determines from the information contained in the permit
application and from his investigation that the applicant has committed no disqualifying
offenses and that the applicant is otherwise qualified under this Article to offer or to
administer massages in the City of Fairfax, the City Manager shall issue the requested permit.
Each permit issued by the City Manager shall be property of the City of Fairfax and shall be
returned to the City Manager in the event that the permit is suspended or revoked as provided
in this Article.
(c) If the City Manager determines from the information contained in the permit
application and from the City Manager's investigation that the applicant has committed one or
more disqualifying offenses or is otherwise not qualified under this Article to offer or to
administer massages in the City of Fairfax, the City Manager shall deny the application.
(d) If the City Manager denies the application, he shall provide the applicant with written
notice setting forth the grounds for the denial.
Sec. 11-41. Display of permits.
Every person to whom a massage establishment permit is issued shall display the
permit in a conspicuous place in the massage establishment, so that it may readily be seen by
persons entering the massage establishment. Every person to whom a massage therapist
permit has been granted shall display the permit while in a massage establishment.
Sec. 11-42. Transfer of permits.
No permit issued under this Article shall be transferable from one person to another,
whether by sale, lease, merger or otherwise. If a privately held corporation, partnership or
corporation holds a massage establishment permit issued under this Article, the transfer of
more than ten percent (10%) of the ownership of the corporation, company or partnership to a
person or entity who was not an owner when the application was made shall cause the
automatic expiration of the permit. The expiration shall occur on the date of the transfer. A
change of location of a massage establishment may be approved by the City Manager and the
massage establishment's permit transferred to the new location, provided the massage
establishment continues to comply with all applicable provisions of the Code of the City of
Fairfax, Virginia..
Sec. 11-43. Standards for massage establishments.
(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 provisions of the Code
of the City of Fairfax, Virginia, pertaining to signs.
Sec. 11-40. Issuance or denial of massage establishment or massage therapist permit:;.
(a) The City Manager shall act on a massage establishment permit application within sixty
(60) days from the date he receives the application. The City Manager shall act on a massage
therapist permit application within twenty-one (21) days from the date he receives the
application.
2000-5
-8
(b) Massage establishment facilities shall comply with all requirements of the Virginia
Uniform Statewide Building Code, as it may be amended, including those provisions relating
to lighting, ventilation and toilet facilities. All required facilities shall 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, 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 client of the
establishment. No common use of towels or linens shall be permitted.
(e) No massage establishment shall serve any client when the skin of the client is
inflamed or erupted unless the client 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 therapist shall cleanse his or her hands thoroughly with soap and hot
running water immediately before serving each client.
(g) 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 massage establishment.
Sec. 11-44. Unlawful acts; massaging, touching or exposing erogenous area~.
(a) It shall be unlawful for any person, in a massage establishment, or during the course of
an off-premises massage, 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 other person.
(b) It shall be unlawful for any person, in a massage establishment, or during the course of
an off-premises massage, 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, or during
the course of an off-premises massage, to expose the erogenous area, or any portion thereof,
of any other person.
(c) It shall be unlawful for any person, while in the presence of any other person in a
massage establishment, or during the course of an off-premises massage, to fail to cover with
a fully opaque covering, any erogenous area of his or her body.
(d) It shall be unlawful for any person owning, operating or managing a massage
establishment, or off-premises massage business, knowingly to cause, allow, or permit in or
about such massage establishment, any agent, employee, or any person under his control or
supervision to perform such acts prohibited in this Article.
Sec. 11-45. Restrictions on off-premises massages.
Off-premises massages may be administered only in the residence of the client.
"Residence", for purposes of this Article, means one or more rooms in a residential building
or residential portion of a building which are arranged, designed, used or intended for use as a
complete, independent living facility which includes permanent provisions for living,
sleeping, eating, cooking and sanitation. "Residence", for purposes of this Article, shall not
include a motel, hotel, or other accommodation used for transient occupancy.
2000-5
9
Sec. 11-46. Severability and conflict.
(a) 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.
(b) 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: February 22, 2000
PUBLIC HEARING: March 14, 2000
ENACTED: March 14, 2000
J. Coughlan
J. Greenfield
R. Lederer
J. Petersen
G. Rasmussen
S. Silverthorne
Vote:
Aye
Aye
Aye
Aye
Aye
Aye
ATTEST:
Mayor
Date