8.1. SR 01-19-2016
Request for Action
To Item Number
Mayor and City Council 8.1
Agenda Section Meeting Date Prepared by
General BusinessJanuary 19, 2016Tina Allard, City Clerk
Item Description Reviewed by
Massage Licensing Ordinance Cal Portner, City Administrator
Reviewed by
Action Requested
1.Adopt, by motion, an ordinance regarding the licensing and regulation of therapeutic massage.
2.Adopt, by motion, a resolution for summary publication of the ordinance.
Background/Discussion
The Council reviewed the massage licensing ordinance at their last work session. The ordinance
establishes the following:
Definitions for terms used throughout the ordinance.
Requires licensing for massage establishments and massage therapists with certain exceptions.
Outlines the information required on an application for massage establishments and massage
therapists.
Establishes a process for the city to verify the facts of an application.
Outlines factors that would disqualify an applicant from obtaining a license.
Allows for in-house approval of a license by the Office of the City Clerk.
Establishes licensing restrictions regarding health, safety, and welfare.
Sets up a licensing renewal process.
Establishes sanctions and penalties for licensing violations.
The proposed ordinance was sent to current massage establishments licensed in the city and the Chamber
sent out notice to their members. No comments have been received.
Financial Impact
Approving the resolution for summary publication of the ordinance will save on publication costs for the
legal notice in the paper. A four-fifths vote is required.
Attachments
Ordinance
Resolution for Summary Publication
January 4, 2016, staff report
Ordinance 16 - ____
An Ordinance Repealing Chapter 38, Article VI and Replacing it with a New
Ordinance Regarding Licensing and Regulation of Therapeutic Massage of the City
of Elk River, Minnesota, City Code
The City Council of the City of Elk River does hereby ordain as follows:
SECTION 1. Repeal Moratorium
Ordinance 15-25 adopted on July 20, 2015, is hereby repealed.
SECTION 2. Repeal and Replace
The language and content of the current Chapter 38, Article VI of the Elk River City Code is hereby
repealed in its entirety and a new ordinance, 16-____ titled Licensing and Regulation of Therapeutic
Massage shall be enacted as follows:
CHAPTER 38, ARTICLE VI. – LICENSING AND REGULATION OF THERAPEUTIC
MASSAGE
DIVISION 1. - GENERALLY
Sec. 38-191. - Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings
ascribed to them in this Section, except where the context clearly indicates a different meaning:
Accredited Institution means an educational institution holding accredited status with the
United States Department of Education or Minnesota Office of Higher Education.
Accredited Program means a professional massage program accredited by the Commission on
Massage Therapy Accreditation (COMTA).
City means the City of Elk River, Minnesota.
Massage Therapist means a person who practices or performs Therapeutic Massage on a person
for compensation.
State means the State of Minnesota.
Therapeutic Massage means the practice of rubbing, stroking, kneading, tamping, or rolling of
the body with the hands or any instrument, for the exclusive purpose of tension, stress, and pain
relief, relaxation, increased range of motion, muscle tone improvement, physical fitness, or
beautification and for no other purpose, by a person not licensed as a medical doctor, chiropractor,
osteopath, podiatrist, nurse, or physical therapist or by an assistant who works solely under the
direction of any of such professionals, or by beauticians and barbers who confine their treatments to
the scalp, face, and neck.
Therapeutic Massage Establishment means an establishment in the business of providing
Therapeutic Massage services either to the public or as a private club.
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Sec. 38-192. - Purpose of Article.
The purpose of this Article is to prohibit massage businesses and services to the public except
those licensed as Therapeutic Massage Establishments and Massage Therapists pursuant to this
Article. The licensing regulations prescribed in this Article are necessary in order to prevent criminal
activity and to protect the health and welfare of the community. This Article is not intended to
impose restrictions or limitations on the freedom of protected speech or expression.
DIVISION 2. - ESTABLISHMENT AND THERAPIST LICENSES REQUIRED
Sec. 38-221. – Licenses required.
It is unlawful for any person or entity to practice Therapeutic Massage or offer to provide
massage therapy or operate a Therapeutic Massage Establishment within the City without a license.
Sec. 38-222. - Exceptions.
This Article shall not apply to the following establishments or people:
(a)A health care facility licensed by the State.
(b)A health care facility owned in whole or in part by the State or any of its agencies.
(c)A medical clinic or hospital, so long as the massage is performed by a State-licensed
physician, chiropractor, osteopath, podiatrist, nurse, or physical therapist, or by an
assistant working under the direction of any of such professionals.
(d)A physical therapy clinic or athletic facility, so long as the massage is performed by a
State-licensed physical therapist, athletic director, coach, or trainer.
(e)A beauty parlor or barbershop, so long as the massage is performed by a State-licensed
beautician or barber, and treatment is limited to the scalp, face, and neck.
(f)Seated chair massage on a fully clothed person.
(g)Students of an Accredited Institution who are performing massage services in the
course of a clinical component of an Accredited Program of study, provided that the
students are performing the massage services at the location of the Accredited
Institution and provided the students are identified to the public as students of massage
therapy. Students of an Accredited Institution who are performing massage services at
clinics or other facilities located outside of the Accredited Institution must have at least
150 hours of certified Therapeutic Massage training at the Accredited Institution prior
to performing the therapy outside of the institution and must be identified to the public
as a student of massage therapy.
Sec. 38-223. – License application; investigation.
All initial Therapeutic Massage Establishment and Massage Therapist applications shall be
accompanied by the required fees in the amount established by ordinance. All persons that have a
ten percent (10%) or more financial interest in the Therapeutic Massage Establishment business
shall be considered an owner and shall be required to have a background investigation. The police
department shall conduct the background investigation before consideration of licensure by the
Office of the City Clerk. An investigation by the building official shall be conducted of all premises
proposed to be licensed and a report shall be submitted stating the premises comply with the
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building code and Section 38-247 before consideration of licensure by the Office of the City Clerk.
Applications thereafter shall be considered and approved or denied by the Office of the City Clerk.
(a)Therapeutic Massage Establishment Application
(1)All applicants, whether they be an individual, corporation, partnership, or other form of organization, must
provide, at a minimum, the following:
a.The full names, addresses, telephone numbers, dates and place of birth of the owners
and operators, including the designated on-site manager or agent of the applicant.
b.The address of the premises where the Therapeutic Massage Establishment is to be
located.
c.Information as to conviction of any crime or offense committed by anyone listed on
the application.
d.A description of services to be provided.
e.The applicant’s proof of identification, which may be established only by one of the
following:
1.A valid driver's license or identification card issued by Minnesota, another
state, or a province of Canada, and including the photograph and date of
birth of the licensed person;
2.A valid military identification card issued by the United States Department of
Defense;
3.A valid passport issued by the United States: or
4.In the case of a foreign national, by a valid passport.
5.For purposes of proof of identification, the “applicant” shall mean the on-
site manager or agent for a Therapeutic Massage Establishment filling an
application and all owners who are natural persons.
f.The application shall identify the full name, address, date and place of birth, and
telephone number of the natural person, designated by the applicant as the
Therapeutic Massage Establishments on-site manager or agent, who shall reside
within 75 miles of the licensed business. The required residency must be established
by the time the license is issued and maintained throughout the existence of the
license and all renewals. This designated person shall submit notarized written
consent to: (1) take full responsibility for the conduct of the licensed premises and
operation; and (2) serve as agent for service of notices and other process relating to
the license. The licensee shall promptly notify the Office of the City Clerk of any
change in management.
g.Proof of Workers’ Compensation insurance as required by Minnesota law.
h.Whether all real estate, personal property taxes, utility bills, assessments, or other
financial claims of the City that are due and payable for the premises to be licensed
have been paid, and if not paid, the years and amounts that are unpaid.
i.The name and address of the business if it is to be conducted under a designation,
name, or style other than the name of the applicant, and a certified copy of the
certificate as required by MN §333.01 and 333.02.
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J. The application shall be signed and sworn to. If the applicant is a natural person,it
shall be signed and sworn to by such person. If the applicant is a corporation, an
incorporated association, or a limited liability company (LLC), the application shall
be signed by an officer or member of said entity,providing proof of authority to sign
on behalf of said entity.
k. Whether the applicant has had an interest in, as an individual or as part of a
corporation,partnership, association, enterprise,business or firm, a massage license
that was revoked or suspended within the last five years of the date the license
application is submitted to the City.
1. A public liability insurance policy or certificate of insurance from a company
authorized to do business in the State,insuring the applicant against any and all loss
arising out of the use, operation, or maintenance of the Therapeutic Massage
Establishment. The policy of insurance shall be in limits of not less than
$1,000,000.00.
m. Such other information as the Office of the City Clerk may require.
(2) Individuals- In addition to the requirements under Section 38-223 (a)(1),individual applicants
must further provide the following:
a. Whether the applicant and on-site manager or agent have ever used or have been known
by a name other than his or her name on the application, and if so, the name or names
used and information concerning dates and places where used.
b. Whether the applicant is a United States citizen or is legally permitted to be in the United
States and providing proof thereof.
c. The street and city addresses at which the applicant and on-site manager or agent lived
during the preceding five (5) years.
d. Names, addresses, and dates of the applicant's and on-site manager's or agent's
employers for the preceding five (5) years.
e. Whether the applicant and on-site manager or agent have ever been engaged in the
operation of massage services. If so, they shall furnish information as to the name,place,
and length of time of the involvement in such an establishment.
(3) Partnersh ps- In addition to the requirements under Section 38-223 (a)(1),partnership
applicants must further provide the following:
a. The full name(s), address(s), date and place of birth, and financial interest of all general
partners and all of the information concerning each general partner that is required of
Individual applicants under (a)(2) of this Section.
b. The full name(s), address, date and place of birth, and telephone number of the
managing partner(s) and the interest of each managing partner in the business.
c. A copy of the partnership agreement. Any license issued shall be issued in the name of
the partnership.
(4) Corporations-In addition to the requirements under Section 38-223 (a)(1), corporate
applicants must further provide the following:
a. The name of the corporation or business firm, and if incorporated, the state of
incorporation.
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b.A copy of the certificate of incorporation. If the applicant is a foreign corporation, a
certificate of authority as required by Minn. Stat. §303.06.
c.The name of the manager(s), proprietor(s) or other agent(s) in charge of the business and
all of the information concerning each manager, proprietor, or agent that is required of
Individual applicants under (a)(2) of this Section.
d.A list of all persons who own or have a Ten percent (10%) or more interest in the
corporation or organization or who are officers of said corporation or organization,
together with their addresses and all of the information regarding such persons that is
required of individual applicants under (a)(2) of this Section.
(b)Massage Therapist Application. Each application shall contain and require:
a.The applicant must live within 75 miles of the licensed business. The required residency
must be established by the time the license is issued and maintained throughout the
existence of the license and all renewals.
b.Name, place, date of birth, and street address of the applicant.
c.Whether the applicant has ever used or been known by a name other than the applicant’s
true legal name, and if so, the name or names and information concerning dates and
places used.
d.Whether the applicant is a citizen of the United States or a resident alien or has the legal
authority to work in the United States.
e.Proof of current insurance coverage of $1,000,000.00 for professional liability in the
practice of massage if the therapist will be renting booth space from an establishment.
f.Street addresses at which the applicant has lived during the preceding five years.
g.The type, name, and location of every business or occupation the applicant has been
engaged in during the preceding five years.
h.Whether the applicant is currently licensed in other communities to perform massage
therapy, and if so, where.
i.Whether the applicant has ever been convicted of any crime, or violation of any
ordinance, other than a minor traffic offense. If so, the applicant shall furnish
information as to the date, location, and offense for which convictions were entered.
j. Whether the applicant has had an interest in, as an individual or as part of a corporation,
partnership, association, enterprise, business or firm, a massage license that was revoked
or suspended within the last five years of the date the license application is submitted to
the City.
k.Whether the applicant has ever been engaged in the operation of massage services. If so,
applicant shall furnish information as to the name, place, and length of time of the
involvement in such an establishment.
l.Proof of graduation and completion of 500 hours of certified Therapeutic Massage
training with content that includes the subjects of anatomy, physiology, hygiene, ethics,
massage theory and research, and massage practice from an Accredited Program or
Accredited Institution. These training hours must be authenticated by a single provider
through a certified copy of the transcript of academic record from the school issuing the
training, degree, or diploma or proof of passing the National Certification Exam offered
by the National Certification Board for Therapeutic Massage & Bodywork and a
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minimum of five (5) years of full-time work experience as a Massage Therapist within
the United States.
Sec. 38-224. - Renewal.
Each license issued under this Article shall expire on December 31 of the year it is issued.
Licenses must be renewed annually. The renewal application shall be accompanied by an annual fee
in the amount established by ordinance. For a renewal, the applicant must provide any changes in
the name, address, criminal record, or other relevant information of any other owner, lessee,
operator, or Massage Therapist. The police department may conduct an investigation prior to any
renewal. The building official may conduct an inspection of the premises prior to any renewal.
(a)Application for renewal shall be made at least 60 days before expiration and shall be in the form
and manner as required for the original license;
(b)Upon the timely submission of an application for renewal, the Office of the City Clerk shall
renew each license meeting the requirements for the issuance of the original license, no later
than 30 days before expiration.
Sec. 38-225 – Right to hearing
If a license is denied by the Office of the City Clerk, the City Clerk shall notify the applicant of the
determination in writing, including the facts and specific Section or Sections of this Article upon
which this determination was made, and their right to a hearing before the City Council. The City
Clerk shall follow the hearing procedures outlined in Article II of Section 38 regarding Business
Licenses and Business Permits.
Sec. 38-226 License eligibility.
(a)A Therapeutic Massage Establishment license shall not be issued upon any of the following
grounds:
(1)The proposed fixed location of the Therapeutic Massage Establishment is not in
conformance with Chapter 30 of the City code.
(2)The owner, operator, or any person who has a ten percent (10%) or more financial interest
in the Therapeutic Massage Establishment or the appointed on-site manager or agent of the
applicant has a conviction for, or was charged with, but convicted of a lesser charge of, a
crime involving a violation of any massage therapy-related regulation in any other
jurisdiction, any prostitution-related offense, criminal sexual conduct, indecent exposure,
surreptitious intrusion, disorderly house as defined by Minnesota Statutes, theft, felony drug
offense, any crime of violence as defined by Minnesota Statutes, or any other similar crime
or offense within five (5) years of the date of application.
(3)The owner, operator, or any person who has a Ten percent (10%) or more financial interest
in the Therapeutic Massage Establishment had a Massage Therapist or Therapeutic Massage
Establishment related license in another jurisdiction that was suspended or revoked within
five (5) years preceding the date of application.
(4)The application failed to identify the full name, address, and date and place of birth of the
natural person designated by the applicant as the Therapeutic Massage Establishment's on-
site manager or agent, along with the notarized written consent of such a person to: (1) take
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full responsibility for the conduct of the licensed premises and operation; and (2) serve as
agent for service of notices and other processes relating to the license.
(5)The on-site manager or agent designated by the applicant is not a resident who lives within
75 miles of the licensed business.
(6)The on-site manager or agent designated by the applicant is not a United States citizen and is
not legally permitted to be in the United States.
(7)The applicant provided false or misrepresented information in the application.
(8)The Therapeutic Massage Establishment is proposed to be operated on premises on which
property taxes, assessments, or other financial claims by the State, county, or City are due,
delinquent, and unpaid, provided the applicant or other entity in which the applicant has an
interest has the legal duty to pay said taxes, assessments, or claims due and owing.
(9)The applicant does not have general liability insurance coverage in effect as required in this
Article.
(10)The applicant has been denied a license under this Article within the preceding 12 months.
(b) A Massage Therapist shall not be issued a license upon any of the following grounds:
(1)The applicant has a conviction for or was charged with, but convicted of a lesser charge, a
crime involving a violation of any massage therapy-related regulation in any other
jurisdiction, any prostitution-related offense, criminal sexual conduct, indecent exposure,
surreptitious intrusion, disorderly house as defined by Minnesota Statutes, theft, felony drug
offense, any crime of violence as defined by Minnesota Statutes, or any other similar crime
or offense within five (5) years of the date of application.
(2)The applicant had a Massage Therapist or Therapeutic Massage Establishment related license
in another jurisdiction that was suspended or revoked within five (5) years of the date of
application;
(3)The applicant is not 18 years of age or older.
(4)The applicant does not reside within 75 miles of the licensed business.
(5)The applicant is not a United States citizen and is not legally permitted to be in the United
States;
(6)The applicant has not provided proof of graduation and completion of 500 hours of
certified Therapeutic Massage training with content that includes the subjects of anatomy,
physiology, hygiene, ethics, massage theory and research, and massage practice from an
Accredited Program or Accredited Institution. These training hours must be authenticated
by a single provider through a certified copy of the transcript of academic record from the
school issuing the training, degree, or diploma or proof of passing the National Certification
Exam offered by the National Certification Board for Therapeutic Massage & Bodywork
and a minimum of five (5) years of full-time work experience as a Massage Therapist within
the United States.
(7)The applicant provided false or misrepresented information on the application.
(8)The applicant has been denied a license under this Article within the preceding 12 months.
(9)The establishment is not licensed or in compliance with the State Building and Fire Codes in
addition to this code.
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DIVISION 3. Operational regulations and restrictions
(a)The act of any employee of the licensee is deemed to be the act of the licensee. The licensee
shall be responsible for all acts and conduct attributable to and in connection with massage
therapy services provided by the licensee or occurring on the premises of the Therapeutic
Massage Establishment.
(b)The licensee and all employees of the licensee shall at all times be fully clothed and shall not
expose his/her breast, buttocks, anus, or genitals.
(c)At no time shall the Massage Therapist touch or offer to touch or massage the penis, scrotum,
mons veneris, vulva, or vaginal area of any customer or person inquiring of massage therapy
services.
(d)No beer, liquor, narcotic drug, or controlled substances, as such terms are defined by State
statutes or the City Code, shall be permitted on the licensed premises.
(e)No doors of massage rooms, when occupied by one or more persons, shall be locked. All locks,
if any, shall be keyed only from the exterior of the massage rooms.
(f)Only Massage Therapists who are licensed by the City shall practice or provide Therapeutic
Massage services for a licensed Therapeutic Massage Establishment or within the licensed
Therapeutic Massage Establishment premises as identified in its license.
(g)The licensee shall comply with any and all provisions of this Article, all applicable provisions of
the City Code, and all applicable State laws and regulations.
(h)It is unlawful for any licensee under this Article to allow the licensed premises to be open for
business or allow patrons to be on the premises between the hours of 9:00 p.m. and 6:00 a.m. of
the next day. The hours of operation must be displayed in a conspicuous place in the lobby
and/or in any front window clearly visible from outside the Therapeutic Massage Establishment.
All massages must conclude at or before 9:00 p.m. Support activities, such as cleaning,
maintenance, and bookkeeping are allowed outside of business hours.
(i)The licensed premises shall, during all operating hours, be open to inspection by any building,
zoning, code or police officer to determine whether this Article and all other laws are being
observed. All persons, as a condition to being issued such license, consent to such inspections by
such officers. It is unlawful for any licensee or agent or employee of a licensee to hinder or
prevent a City inspecting officer from making such inspection. All employees must, upon
demand of any police officer, produce correct identification.
(j)If a licensed Therapeutic Massage Establishment’s on-site manager or agent ceases to be located
at the licensed premises or ceases to act in such capacity for the licensee without appointment of
a successor, the license issued pursuant to such appointment shall be subject to revocation or
suspension.
(k)All licensees shall post current licenses in a prominent place.
(l)No license issued under this Article may be transferred. Therapeutic Massage Establishment
licenses shall terminate upon any change in officers' or ownership interests of the Licensee
where said officer or owner has a ten percent (10%) or more financial interest in the Therapeutic
Massage Establishment license.
(m)Advertising of any potential unlawful or erotic conduct at the licensed establishment shall be
prohibited.
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(n)The sale, use or possession of adult-oriented merchandise, including sex toys and/or condoms,
in any part of the Therapeutic Massage Establishment, shall be prohibited.
(o)No touching, fondling, or other intentional contact with the genitals, breasts of a female patron,
or anus of any patron. The person who is receiving a massage shall at all times be properly
covered with non-transparent material.
(p)No sexual activity.
(q)The Therapeutic Massage Establishment shall post their rates for service in a prominent place in
the entrance or lobby of the business. No Therapeutic Massage Establishment owner or
manager shall permit, and no employee or independent contractor of the Therapeutic Massage
Establishment shall offer to perform, any massage therapy services, or charge any fees, other
than those posted.
(r)Violation of any law or regulation relating to the license issued under this Article, or any
building, safety or health regulation, shall be grounds for suspension or revocation of any
license, as determined by the City Council.
(s)It is unlawful to allow anyone to live on the licensed premises of a business not located in a
residential district. Therapeutic Massage Establishment license is only effective for the compact
and contiguous space specified in the approved license application. If the licensed premises are
altered in any way, the licensee shall inform the Office of the City Clerk within ten (10) business
days.
Sec. 38-245 Prohibited business or operations
No Therapeutic Massage Establishment shall be used or operated as or in conjunction with an adult
use business as defined in this Code.
Sec. 38-246. - Compliance with building regulations.
All persons who hereafter construct, extensively remodel, or convert buildings or facilities for
use as Therapeutic Massage Establishments which are open to the public shall comply with the
requirements of the State fire and building code and all amended codes. To the extent the building
code or fire code requirements conflict with the provisions of this Article, the more restrictive
provision shall govern.
Sec. 38-247. - Design and maintenance of premises.
(a) Floors, walls, and equipment in massage rooms, restrooms, bathrooms, janitor's closets,
hallways, and reception areas used in connection therewith must be kept in a state of good
repair and clean at all times. Linens and other materials shall be stored at least 12 inches off the
floor. Clean towels and washcloths must be made available for each customer.
(b) If massage is performed in individual rooms, the doors to the individual massage rooms shall
not be equipped with any locking device and shall not be blocked or obstructed from either
side.
(c) Only professional massage tables that are generally accepted in the professional massage
industry may be placed in massage rooms and utilized for massage therapy. No futons, beds,
mattresses, waterbeds, or products not compliant with local and state laws are allowed in the
Therapeutic Massage Establishment.
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(d) No portion of the Therapeutic Massage Establishment shall be used for sleeping/residential
purposes.
Sec. 38 - 248 Sanctions for violations
(a) A license issued under this Article may be revoked or suspended, not issued or renewed upon a
showing that the licensee, or its owners, managers, employees, or agents, or any Massage
Therapist practicing Therapeutic Massage on the licensed premises or premises proposed to be
licensed:
(2) Has not complied with all laws of sanitation.
(3) Has violated any law or regulation relating to health, building, building maintenance, or
safety, or other provisions of the City Code or State law.
(4) Has violated any of the provisions of this Article.
(5) Would be inconsistent with the comprehensive development plans of the City; or
(6) Would otherwise have a detrimental effect upon the property in the vicinity.
Sec. 38-249 – Violations and Penalty
Aiding or Abetting Violation.
It is unlawful for any person to commit, attempt to commit, conspire to commit, or aid or abet in
the commission of any act constituting a violation of this Article, whether individually or in
connection with one or more persons or as a principal, agent or accessory.
Inducing Violation.
It is unlawful for any person to falsely, fraudulently, forcibly or willfully induce, cause, coerce,
require, permit or direct another to violate any of the provisions of this Article.
Criminal Penalty for Violations
Any person or entity violating any provision of this Article is guilty of a misdemeanor and upon
conviction, shall be subject to the penalties set forth in the Minnesota Statutes. Each day the
violation continues shall constitute a new and separate offense. Each violation of this Article shall
constitute a separate offense. Conviction of a violation of this Article, while not required, may be
grounds for the suspension or revocation of any license issued under this Section.
SECTION 3. That this ordinance shall take effect upon adoption by the City Council.
th
Passed and adopted by the City Council of the City of Elk River this 19 day of January, 2016.
______________________________
John J. Dietz, Mayor
ATTEST:
_______________________________
Tina Allard, City Clerk
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Councilmember _______________ introduced the following resolution and moved its
adoption:
Resolution 16-____
A Resolution of the City of Elk River Approving Notice of Summary
Publication of Ordinance #16-__ An Ordinance repealing Chapter 38, Article
VI and replacing it with a new ordinance regarding licensing and regulation
of therapeutic massage of the City of Elk River, Minnesota, City Code
WHEREAS,
on January 19, 2016, the Elk River City Council adopted Ordinance 16-___
repealing Chapter 38, Article IV and replacing it with a new ordinance regarding licensing
and regulation of therapeutic massage of the Elk River Code of Ordinances; and
WHEREAS,
the ordinance repeals Ordinance 15-25, adopted July 20, 2015, which
established a moratorium on new massage establishments.
The ordinance repeals existing Chapter 38, Article VI of the City Code and replaces the
language with a new ordinance titled Licensing and Regulation of Therapeutic Massage.
The ordinance establishes the following:
Definitions for terms used throughout the ordinance.
Requires licensing for massage establishments and massage therapists with certain
exceptions.
Outlines the information required on an application for massage establishments and
massage therapists.
Establishes a process for the city to verify the facts of an application.
Outlines factors that would disqualify an applicant from obtaining a license.
Allows for in-house approval of a license by the Office of the City Clerk.
Establishes licensing restrictions regarding health, safety, and welfare.
Sets up a licensing renewal process.
Establishes sanctions and penalties for licensing violations.
WHEREAS,
a copy of the full text of the ordinance is available for inspection by any
person at the office of the Elk River City Clerk, 13065 Orono Parkway, during regular
business hours.
NOW, THEREFORE, BE IT RESOLVED
by the City Council, by at least four-fifths
vote, authorizes the publication of the title and summary of Ordinance16-___.
The motion for adoption of the foregoing resolution was duly seconded by Councilmember
______________, and upon vote being taken thereon, the following voted in favor thereof:
and the following against: , whereupon said
resolution was declared duly passed and adopted.
The following members were present:
and the following absent:
th
Passed and adopted this 19 day of January, 2016.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
Request for Action
To Item Number
Mayor and City Council 10.2
Agenda Section Meeting Date Prepared by
Work SessionJanuary 4, 2016Tina Allard, City Clerk
Item Description Reviewed by
Massage Licensing Ordinance Peter Beck, City Attorney
Scott Baumgartner, Prosecuting Attorney
Reviewed by
Cal Portner, City Administrator
Action Requested
Council review and comment regarding the licensing and regulation of therapeutic massage.
Background/Discussion
Currently there is a moratorium until January 21, 2016, for allowing new massage establishments. Staff is
requesting to repeal the existing ordinance and replace with a new one. Since the moratorium there have
been three requests for new establishments and one request for a transfer. The last time this ordinance
was reviewed in whole was pre-1982.
Per League of MN Cities
A licensing ordinance should be complete and detailed. The method of applying for the license; license
term; qualifications of the license applicant; bond and insurance requirements; reasons for denial,
revocation, and suspension of a license; transferability of the license; and any limitations or regulations
concerning the license should all be set out in the ordinance. Also, procedural matters, such as who
investigates the applicant; who decides whether the applicant is qualified; and what procedural rights the
applicant has in case of a denial, suspension or revocation of a license, should all be set forth in the
ordinance.
The proposed ordinance was sent to police, building, planning staff and both city attorneys for review
and comment.
Financial Impact
N/A
Attachments
Major changes between the two ordinances
Proposed ordinance
Existing ordinance
Ordinance Differences
Ordinance Section Change
Section 1
Repeals the moratorium
38-222 (page 2) Exceptions No change
Allows certain exceptions from city licensing.
38-223 (Pages 3-6) License Application & Investigation
Residency requirements for the on-site manager of the
establishment and massage therapists (within 75 miles of the
Most of what is being requested is no different than what the city is
business). There should be a reasonable expectation that if you
currently requiring on a license application.Breaks the application
work at an establishment or manage it, then you would be a
questions down depending if the type of applicant such as individual,
nearby resident. The onsite manager is also designated as the
partnership, or corporation. (Whose the true business owner)
agent of service for notices. Depending on a person’s situation,
MN state law requires individual who will be living in the State
This section allows for staff approval and a hearing process with
anywhere from 30 to 60 days to transfer their driver’s license.
Council for denials.
It should be a fairly easy process for an individual to do.
Background investigations: We currently require them for
Outlines the information required on an application, which assists staff
owners with 5% interest or more financial interest in an
on verifying documentation and whether the applicant is legitimate. Use
establishment. This would change to 10%.
information to verify if taxes are paid up, who the true owners are,
Applicant’s names, addresses, and dates of residency/
proof of insurance.
employment for the last 5 years. Existing ordinance went back
10 years. The reason for the change is due to a state law
regarding rehabilitation of a person. Going back to a crime that
happened 10 years ago shouldn’t be considered as it is expected
the applicant paid their dues and has been rehabilitated. (draft
ord says both 5/10 yrs but this is a typo that will be corrected)
Massage therapy program must be approved by an Accredited
Program or Institution or the therapist can show proof of
The Commission on Massage Therapy and US Department of
passing the National Certification Exam. The existing
Education review school programs and provide accreditation status to
ordinance required the program be approved by the American
the schools. Out-of-state school documentation can be difficult to
Massage Therapist Association. They don’t approve programs
verify and confirm that they are legitimate schools, and at times are no
and are more a membership organization.
longer in operation. These organizations also track accredited closed
schools.
Section 38-224 (page 6) Renewal Proposed ordinance states staff must send out renewal applications 60
Outlines renewal process in more detail for in-house staff review and days prior to expiration and, issue the new license 30 days before
approval. expiration of existing license.
Section 38-226 (page 6), License Eligibility
Allows for denial if the onsite manager or a therapist doesn’t
Section includes factors that disqualify an applicant from obtaining a
meet the residency requirements.
license. With in-house approval by staff, these need to be outlined
Convictions have a 5 year look back versus 3 years.
clearly to eliminate questioning between Council and staff as to why
staff denied an application.
Division 3, (page 8) Operational Regulations
Hours of operation changed closing from 11:00 p.m. to 9:00
In existing ordinance these were laid out in various areas and some were
p.m. So customers would be done by 9:00 p.m. but other
unclear as to whether they affected a therapist or the establishment.
support activities such as cleaning would be allowed outside
They have now been combined for ease of review.
these hours.
No one would be allowed to live on the licensed establishment
unless it is a home occupation.
Mattresses and certain products not compliant with state law
are not allowed.
Section 38-248 (Page 10) Sanctions for Violations No change.
Gives Council right to to revoke or suspend a license after a hearing.
Section 38-249 (Page 10) Penalties A penalty section is standard in any licensing ordinance and allows
Penalties for violations. issuance of citations based on the ordinance.
ARTICLE VI. - MASSAGE AND SAUNA ESTABLISHMENTS
DIVISION 1. - GENERALLY
Sec. 38-191. - Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Massage therapist means a person who practices or performs therapeutic massage on a person
for compensation.
Sauna, steam bath and heat-bathing room mean a room used for the purpose of bathing,
reducing, or relaxing, utilizing steam or hot air as a cleaning, reducing, or relaxing agent. For
purposes of this article, the term "sauna" does not apply to a sauna or steam room located within a
hotel, motel, health club, or athletic facility.
Therapeutic massage means the practice of rubbing, stroking, kneading, tamping, or rolling of
the body with the hands or any instrument, for the exclusive purpose of tension, stress, and pain
relief, relaxation, increased range of motion, muscle tone improvement, physical fitness, or
beautification and for no other purpose, by a person not licensed as a medical doctor, chiropractor,
osteopath, podiatrist, nurse, or physical therapist or by an assistant who works solely under the
direction of any of such professionals, or by beauticians and barbers who confine their treatments to
the scalp, face, and neck.
Therapeutic massage establishment means an establishment in the business of providing
therapeutic massage services either to the public or as a private club.
(Code 1982, § 704.02)
Cross reference— Definitions generally, § 1-2.
Sec. 38-192. - Purpose of article.
The purpose of this article is to prohibit massage businesses and services to the public except
those licensed as therapeutic massage establishments and massage therapists pursuant to this article.
The licensing regulations prescribed in this article are necessary in order to prevent criminal activity
and to protect the health and welfare of the community. This article is not intended to impose
restrictions or limitations on the freedom of protected speech or expression.
(Code 1982, § 704.00)
Sec. 38-193. - Exceptions.
This article shall not apply to the following establishments or people:
(1) A health care facility licensed by the state.
(2) A health care facility owned in whole or in part by the state or any of its agencies.
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(3) A medical clinic or hospital, so long as the massage is performed by a state-licensed
physician, chiropractor, osteopath, podiatrist, nurse, or physical therapist, or by an assistant
working under the direction of any of such professionals.
(4) A physical therapy clinic or athletic facility, so long as the massage is performed by a state-
licensed physical therapist, athletic director, coach, or trainer.
(5) A beauty parlor or barbershop, so long as the massage is performed by a state-licensed
beautician or barber, and treatment is limited to the scalp, face, and neck.
(6) Seated chair massage on a fully clothed person.
(7) Students of an accredited institution who are performing massage services in the course of
a clinical component of an accredited program of study, provided that the students are
performing the massage services at the location of the accredited institution and provided
the students are identified to the public as students of massage therapy. Students of an
accredited institution who are performing massage services at clinics or other facilities
located outside of the accredited institution must have at least 150 hours of certified
therapeutic massage training at the accredited institution prior to performing the therapy
outside of the institution and must be identified to the public as a student of massage
therapy.
(Code 1982, § 704.06; Ord. No. 14-19, § 1, 12-15-2014)
Sec. 38-194. - Violations generally; aiding or abetting violation.
It is unlawful for any person to commit, attempt to commit, conspire to commit, or aid or abet
in the commission of any act constituting a violation of this article, whether individually or in
connection with one or more persons or as a principal, agent or accessory.
(Code 1982, § 704.18)
Sec. 38-195. - Inducing violation.
It is unlawful for any person to falsely, fraudulently, forcibly or willfully induce, cause, coerce,
require, permit or direct another to violate any of the provisions of this article.
(Code 1982, § 704.18(2))
Sec. 38-196. - Compliance with building regulations.
All persons who hereafter construct, extensively remodel, or convert buildings or facilities for
use as therapeutic massage establishments or saunas which are open to the public shall comply with
the requirements of the state building code and all amended codes. To the extent the building code
or fire code does not impose stricter requirements, the provisions of this article shall govern.
(Code 1982, § 704.12)
Sec. 38-197. - Design and maintenance of premises.
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(a) Floors, walls, and equipment in sauna rooms, massage rooms, restrooms, bathrooms, janitor's
closets, hallways, and reception areas used in connection therewith must be kept in a state of
good repair and clean at all times. Linens and other materials shall be stored at least 12 inches
off the floor. Clean towels and washcloths must be made available for each customer.
(b) If massage is performed in individual rooms, the doors to the individual massage rooms shall
not be equipped with any locking device and shall not be blocked or obstructed from either
side.
(Code 1982, § 704.14)
Sec. 38-198. - Hours of operation.
It is unlawful for any licensee under this article to allow the licensed premises to be open for
business or allow patrons to be on the premises between the hours of 11:00 p.m. and 6:00 a.m. of
the next day.
(Code 1982, § 704.18(3))
Sec. 38-199. - Duties of massage therapists.
All massage therapist licensees shall:
(1) Upon demand of any police officer at the place of employment, produce correct
identification.
(2) Practice massage only at such location as is designated in the license.
(3) Inform the city clerk in writing of any change in location prior to such change.
(4) Refrain from the use of and not be under the influence of alcoholic beverages or any
controlled substance as defined in state law while practicing therapeutic massage.
(5) Be in full compliance with the restrictions and regulations set forth in sections 38-224 and
38-241.
(6) Require that a person who is receiving a massage shall have his or her genital areas covered
with an appropriate opaque covering.
(Code 1982, § 704.24(2)—(7))
Sec. 38-200. - Obstructing or preventing inspection.
It is unlawful for any licensee under this article, or any agent or employee of a licensee, to
hinder or prevent a police, building, or health officer from making any inspection at any time.
(Code 1982, § 704.18(4))
Secs. 38-201—38-220. - Reserved.
DIVISION 2. - ESTABLISHMENT LICENSE
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Sec. 38-221. - Required.
It shall be unlawful in the city for any person to directly or indirectly, upon any pretense or by
any device, engage in the business of keeping, conducting, or operating any massage establishment,
sauna, steam bath, or heat-bathing room which is open to the public or for which any charge or fee
is made or any money or thing of value is solicited or received, except a therapeutic massage
establishment or sauna as defined in this article, and then only after first obtaining a duly issued
license therefor from the city.
(Code 1982, § 704.04)
Sec. 38-222. - Initial application; investigation.
(a) All initial applications for licenses under this division shall be accompanied by a nonreturnable
investigation fee in the amount established by resolution. Each application shall contain:
(1) The names, addresses, and dates of birth of the owners, lessees, operators, and massage
therapists of the proposed therapeutic massage establishment or sauna.
(2) A description and location of the premises.
(3) Information as to conviction of any crime or offense committed by anyone listed on the
application.
(4) For applications by corporations, the names, addresses, and dates of birth of all persons
having a beneficial interest therein.
(5) A description of services to be provided.
(6) Such other information as the council may require.
(b) Prior to consideration of the application by the council, an investigation shall be made by the
building and zoning official to determine compliance with this article of all premises proposed
to be licensed, and by the police department of all persons listed on the license application.
(Code 1982, § 704.04(1))
Sec. 38-223. - Renewal.
Each license issued under this division shall expire on December 31 of that year. Licenses must
be renewed annually. The renewal application shall be accompanied by an annual fee in the amount
established by resolution. For a renewal, the applicant must provide full information as required for
initial licenses for any new owners, lessees, operators, or massage therapists proposed to be involved
in the massage center or sauna, and also provide any changes in the name, address, criminal record,
or other relevant information of any other owner, lessee, operator, or massage therapist. The
building and zoning official and/or the police department may conduct an investigation prior to any
renewal.
(Code 1982, § 704.04(2))
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Sec. 38-224. - Denial, suspension or revocation.
(a) A license issued under this division may be revoked, suspended, or not issued or renewed by
the city upon a showing that the licensee, or its owners, managers, employees, or agents, or any
massage therapist practicing therapeutic massage on the licensed premises or premises proposed
to be licensed:
(1) Is delinquent in the payment to the city or other jurisdiction of taxes, fees, fines, or charges
duly assessed thereto.
(2) Has not complied with all laws of sanitation.
(3) Has violated any law or regulation relating to health, building, building maintenance, or
safety, or other provisions of this Code or state law.
(4) Has violated any of the provisions of this article.
(b) A license shall not be granted or renewed if granting the license:
(1) Would be inconsistent with the comprehensive development plans of the city; or
(2) Would otherwise have a detrimental effect upon the property in the vicinity.
(c) A license shall not be issued or renewed if:
(1) The license application contains any false, fraudulent, or deceptive statements and such
statements are grounds for revocation or suspension of the license.
(2) The applicant has, within one year prior to the date of application, been denied licensure or
had his license revoked.
(d) Licenses may be granted only for operation upon fixed premises which have been approved for
the proposed use under the zoning laws of the city.
(e) No license shall be issued if the applicant or any employee or proposed employee, including
massage therapists practicing therapeutic massage on the licensed premises, shall have been
convicted or pled guilty within the previous three years of a violation of this article or of any
law prohibiting prostitution, pandering, keeping a disorderly house, criminal sexual conduct, any
sex crime under Minn. Stats. ch. 609, or a crime involving moral turpitude.
(Code 1982, §§ 704.08(1)—(3), (6)—(10), 704.26)
Sec. 38-225. - Liability insurance.
Each applicant for a license under this division shall file with the city a public liability insurance
policy or certificate of insurance from a company authorized to do business in the state, insuring the
applicant against any and all loss arising out of the use, operation, or maintenance of the therapeutic
massage establishment. The policy of insurance shall be in limits of not less than $500,000.00.
Failure to keep in full force and effect the insurance required by this section is grounds for
revocation.
(Code 1982, § 704.16)
Sec. 38-226. - Designation of manager.
Page 5
Before a license is issued under this division, the applicant shall designate in writing a natural
person who is to be manager and in responsible charge of the business and upon whom service of
process may be made. Such a person shall remain responsible for the conduct of the business until
another suitable person has been designated in writing by the licensee. The licensee shall promptly
notify the police department in writing of any change, indicating the name, address, and date of birth
of the new manager and the effective date of such change.
(Code 1982, § 704.10)
Secs. 38-227—38-240. - Reserved.
DIVISION 3. - INDIVIDUAL MASSAGE THERAPIST LICENSE
Sec. 38-241. - Required; exceptions.
(a) It shall be unlawful for any person to practice any form of massage other than a therapeutic
massage as defined in this article, and then only after first obtaining a duly issued license
therefor from the city.
(b) This section shall not apply to the following people:
(1) A state-licensed physician, chiropractor, osteopath, podiatrist, nurse, or physical therapist,
or an assistant working under the direction of any of such professionals.
(2) A state-licensed physical therapist, athletic director, or trainer, or an assistant working
under the direction of any of such professionals.
(3) A state-licensed beautician or barber, provided treatment is limited to the scalp, face, and
neck.
(4) A massage therapist performing chair massage on a fully clothed person.
(Code 1982, §§ 704.08(5), 704.20, 704.22)
Sec. 38-242. - Application; minimum age of licensee.
All applications for a license to practice therapeutic massage shall contain such information as
the council may, from time to time, require. All applicants shall be at least 18 years of age. All initial
applications shall be accompanied by a nonreturnable investigation fee.
(Code 1982, § 704.20(1)(A), (1)(C))
Sec. 38-243. - Educational requirements.
(a) Each applicant for a massage therapist license shall furnish with the application proof of the
following:
(1) A diploma or certificate of graduation from a school approved by the American Massage
Therapist Association or other similar reputable massage association; or
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(2) A diploma or certificate of graduation from a school which is either accredited by a
recognized educational accrediting association or agency, or is recognized by the state
higher education coordinating board or other state agency having jurisdiction over the
school.
(b) Each applicant shall also furnish proof at the time of application of a minimum of 500 hours of
successfully completed course work in the following areas:
(1) The theory and practice of massage, including, but not limited to, Swedish, Esalen, shiatsu,
and/or foot reflexology techniques;
(2) Anatomy, including, but not limited to, skeletal and muscular structure and organ
placement, and physiology; and
(3) Hygiene.
(Code 1982, § 704.20(1)(D))
Sec. 38-244. - Term; renewal.
Each massage therapist license shall expire on December 31 of that year. Licenses must be
renewed annually. The renewal application shall be accompanied by an annual fee in the amount
established by resolution.
(Code 1982, § 704.20(1)(B))
Sec. 38-245. - Posting.
All massage therapist licensees shall display current licenses in a prominent place at their place
of employment.
(Code 1982, §§ 704.08(5), 704.24(1))
Secs. 38-246—38-260. - Reserved.
DIVISION 4. - OPERATIONAL RESTRICTIONS AND REQUIREMENTS
Sec. 38-261. - Duty to allow inspections.
A licensee under this article shall permit and allow the inspection of the premises during
business hours by the building and zoning official, police officers, and health officers, without a
warrant for searches and seizures.
(Code 1982, § 704.08(13))
Sec. 38-262. - Duty of employees to provide identification to police.
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Upon request by any police officer, any person employed in any licensed premises shall provide
identification, including his true legal name, correct address, and date of birth.
(Code 1982, § 704.08(14))
Sec. 38-263. - Discrimination.
No therapeutic massage establishment or sauna shall discriminate between persons on any basis
prohibited by Minn. Stats. § 363.03, subd. 3.
(Code 1982, § 704.08(11))
Sec. 38-264. - Alcoholic beverages or drugs.
No beer, liquor, narcotic drug, or controlled substances, as such terms are defined by state
statutes or by this Code, shall be permitted on licensed premises.
(Code 1982, § 704.08(4))
Sec. 38-265. - Communicable diseases.
No person while afflicted with any disease in a communicable form or while a carrier of such
disease or while afflicted with boils, infected wounds, sores, or any acute respiratory infection, may
work as, or use the services of, a massage therapist. No persons known or suspected of being
afflicted with any such disease or condition shall be employed or permitted in a therapeutic massage
establishment.
(Code 1982, § 704.08(15))
Sec. 38-266. - Employment or licensing of certain persons prohibited.
No applicant for a license under this article or any employee or proposed employee, including
massage therapists practicing therapeutic massage on the licensed premises, shall have been
convicted or pled guilty within the previous three years of a violation of this article, or of any law
prohibiting prostitution, pandering, keeping a disorderly house, criminal sexual conduct, any sex
crime under Minn. Stats. ch. 609, or a crime involving moral turpitude.
(Code 1982, § 704.08(9))
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