This chapter is known as the "Town Therapeutic Massage Ordinance"
and is enacted pursuant to authority granted to the Town now or hereafter
by general law. The purpose of this chapter is to regulate the operation
of therapeutic massage and massage establishments within the Town
in order to promote the public health, safety and general welfare.
The Town designates the Police Chief for the Town, or duly appointed
representative, as the inspection and licensing officer pursuant to
the above authority. The administration and enforcement of this chapter,
including but not limited to licensing and inspecting hereunder, is
performed by the Chief of Police or his/her duly authorized representative.
Any police officer designated by the Town Police Chief or the Code
Enforcement Officer may enforce this chapter.
As used in this chapter, the following words and phrases have
the following meanings, unless context clearly demonstrates otherwise:
Any individual who renders any service in connection with
the operation of a therapeutic massage establishment and receives
compensation, including, but not limited to, massagers.
Any individual who receives a therapeutic massage.
Any school or institution of learning which provides for
the teaching of the theory, practice or work of massage, including
anatomy, physiology, hygiene, professional ethics and related studies,
which is licensed by the Maine State Department of Education or is
licensed by the comparable department or agency of any other state
wherein the school or institution is located.
The provisions of this chapter.
A business establishment where massagers practice massage.[1]
The rubbing, kneading, tapping, compression, vibration, application
of friction, or percussion of the human body or parts of it by hand
or with an instrument or apparatus.
An individual who administers any form of therapeutic massage
for compensation.[2]
A.
This chapter does not apply to a licensed physical therapist, a licensed
athletic trainer, a licensed cosmetologist or a licensed barber performing
functions authorized under the license held, nor does this chapter
apply to a licensed physician or chiropractor or any individual working
under the direct supervision of a licensed physician or chiropractor
while engaged in practicing the healing arts; nurses; beauticians
or other health and hygiene professionals who are duly licensed under
the laws of this state.
B.
These regulations do not apply to the administration of massage for
therapeutic purposes in a hospital, nursing home or other health care
facility.
A.
It is unlawful for any person to operate a massage or therapeutic
massage establishment without a valid massage establishment licenses
issued by the Chief of Police in accordance with the provisions of
this chapter.
B.
It is unlawful for any person to operate a massage establishment
unless each and every massager thereof has a valid massager's license
issued by the Chief in accordance with the provisions of this chapter.
C.
It is unlawful for any individual to work as a massager without having
a valid massager's license issued by the Chief in accordance with
the provisions of this chapter.
It is unlawful for any person operating a massage establishment
to permit or allow an employee, agent or massager thereof, or any
person whatsoever, to violate this chapter on the premises of the
massage establishment.
No person may sell, give, dispense, provide or keep or cause
to be sold, given, dispensed, provided or kept any alcoholic beverages
on the premises of any massage establishment for use by employees
or patrons.
No massage establishment may have an entrance or exit way providing
a direct passageway to any other type of business.
All massage establishments operating under the authority of
this chapter are declared to be public places and may not, during
business hours, have the doors to the exits and entrances of such
establishments located or obstructed in any way so as to prevent free
ingress and egress of persons; provided, however, such doors may be
closed.
No massage establishment may be kept open for any purpose between
the hours of 11:00 p.m. and 7:00 a.m.
It is the duty of every person conducting or operating a massage
establishment to keep the same at all times in a clean and sanitary
condition. All instruments and mechanical, therapeutic and bathing
devices or parts thereof that come into contract with the human body
are to be sterilized by a modern and approved method of sterilization
before initial use, and any such instruments and devices or parts
thereof, after having been used upon one patron, must be sterilized
before being used upon another. Towels and linens furnished for use
of one patron may not be furnished for use of another until thoroughly
laundered.
All massagers in a massage establishment must wash their hands
thoroughly before administering a massage to each patron accommodated.
No individual suffering from a communicable disease may work or be
employed in a massage establishment. No individual suffering from
a communicable disease, to the knowledge of the owner, custodian or
employees of a massage establishment, may be accommodated as a patron
therein.
The massage is to be performed on a massage table, treatment
table or treatment mat. No beds, water mattresses, cots or other equipment
designed for sleeping are permitted at the massage establishment.
The massage establishment must keep a list of the names and
addresses of all employees, both on duty and off duty, and such list
is to be shown to the Chief or his/her duly authorized deputy upon
request.
All massagers must be fully clothed with clothing customarily
worn by massagers while performing a massage. The massager's clothing
is to be kept clean at all times, and soiled clothing may not be worn
during the treatment of a patron. The massager's clothing must be
opaque. No massager may massage a patron whose genitals are exposed
during the treatment, and no patron of a massage establishment may
knowingly expose his/her genitals during a massage to a massager.
No massage may be performed within any cubicle, room, booth
or any area within a massage establishment which is fitted with a
door capable of being locked. Exterior doors may have locks, but such
exterior doors may not be locked while the massage establishment is
open for business or while any massage is being performed therein.
Nothing contained herein may be construed to eliminate other requirements
of statute or ordinance concerning the maintenance of such premises.
A massage establishment licensee must have the premises supervised
at all times when open for business. Any massage establishment must
have an individual who qualifies as a massager under the terms of
this chapter on the premises at all times while the massage establishment
is open for business. The massage establishment licensee must personally
supervise the massage establishment and not violate, or permit others
to violate, any provisions of this chapter.
Any person desiring a therapeutic massage establishment license
and/or a therapeutic massager's license shall file a written application
with the Chief of Police on a form to be furnished by the Chief.
A.
The application must set forth the following information, as applicable
to either type of the license(s) for which application is made:
(1)
The name of the applicant and whether the individual, partnership,
corporation or otherwise and, if a corporation, the state of incorporation.
(2)
The name, style and designation and business address under which
the massage establishment is to be operated.
(3)
The type of license sought, i.e., massage license or massage
establishment license.
(4)
The name, residence addresses and telephone numbers of the manager
or other individual to be principally in charge of the operation of
the massage establishment.
(5)
The following personal information must be provided concerning
the applicant if an individual; and each stockholder holding more
than 10% of the stock and each director if the applicant is a corporation;
and each partner if the applicant is a partnership; and the manager
or other individual principally in charge of the operation of the
massage establishment:
(a)
Name, complete residence address and residence telephone numbers;
(b)
Written proof of age by the applicant who must be at least 18
years of age;
(c)
The massage or similar business history and experience for the
previous 10 years prior to the date of application, including but
not limited to whether or not each individual has previously operated
or been involved as an owner or director in the operation of a similar
type of business, or has been denied the right to operate such business
in any other location, or has had a similar license or permit to operate
revoked or suspended and the reason for such, and the business activities
or occupations subsequent to such action of denial, suspension or
revocation; and
(d)
All criminal convictions other than misdemeanor traffic violations,
fully disclosing the jurisdictions in which convicted and the offense
for which convicted and the date thereof.
(6)
Authorization for the Town, its agents and employees to seek
information and conduct an investigation into the truth of the statements
set forth in the application and the qualifications of the applicant
for the license.
(7)
Written declaration by the applicant, given under oath or affirmation,
under penalty of perjury, that the information contained in and attached
to the application is true and correct; said declaration being duly
dated and signed in the Town.
(8)
A tender of the correct license fee as hereinafter provided.
(9)
Proof that the applicant, if a foreign corporation, is authorized
to do business in this state.
B.
If the applicant seeks a therapeutic massager's license, the application
must also be accompanied by the following:
(1)
Two front face portrait photographs of the applicant taken within
30 days of the date of application and at least two inches by two
inches in size.
(2)
A copy of the diploma, certificate or other similar document or evidence demonstrating that the applicant has successfully completed at least 500 hours of instruction in massage therapy and related courses at a recognized school as defined in § 5.5.3, together with the name and address of the recognized school and the dates of attendance by the applicant. This provision applies to all new applications submitted for a therapeutic massager's license on or after the adoption of this amendment. This amendment does not apply to any person holding a legally valid therapeutic massager's license issued pursuant to this chapter and in good standing as of the date of the adoption of this amendment, nor does it apply to the renewal in accordance with all other provisions of this chapter of any such license legally valid and in good standing as of the date of such renewal; except, however, no such license may be renewed after April 1, 1994, unless the applicant is in full compliance with the requirements of this section.
C.
The applicant must also provide such other information, identification
and physical examination of the person as deemed necessary by the
Chief to determine the truth of the matters hereinbefore required
to be set forth in the application.
A.
Upon receiving the application for a therapeutic massage establishment
license or a therapeutic massager's license, the Chief shall conduct
or have conducted any necessary investigation into the character and
qualifications of the applicant if an individual, or of the stockholders
holding more then 10% of the stock and of the officers and directors
if the applicant is a corporation, or of the partners if the applicant
is a partnership, or of the manager or other individual principally
in charge of the operation of the massage establishment.
B.
In the case of applications for therapeutic massage establishment
licenses, the Chief with the assistance of the Code Enforcement Officer
shall cause to be conducted an investigation of the premises where
the massage establishment is to be carried on for the purposes of
assuring that such premises comply with all requirements as set forth
in this chapter and with any applicable municipal or state regulations
pertaining to land use and public health, safety and welfare.
The Chief is to issue a therapeutic massage establishment license
and/or the therapeutic massager's license within 30 days of receipt
of a completed application, unless he/she finds that:
A.
The correct license fee has not been tendered to the Town and, in
the case of a check or bank draft, not honored with payment upon presentation.
B.
The operation as proposed by the applicant would not comply with
all applicable state and municipal laws including the requirements
of this chapter.
C.
The applicant if an individual, or any of the stockholders holding
more than 10% of the stock or any of the officers or directors if
the applicant is a corporation, or any of the partners if the applicant
is a partnership, or the manager principally in charge of the operation
of the massage establishment has been convicted of any felony or a
misdemeanor involving moral turpitude on two or more occasions within
five years immediately prior to the date of the application.
D.
The applicant has knowingly made any false, misleading or fraudulent
statement of material fact in the license application or in any document
required by this chapter or any other state or municipal authority.
The fee for a therapeutic massage establishment license is as
set out in Appendix A. The fee for a therapeutic massager's license
is as set out in Appendix A.[1]
[1]
Editor's Note: See § A-9A and B.
No portion of any fee collected under this chapter may be returned
after a license has been issued.
Therapeutic massage establishment licenses or therapeutic massagers'
licenses are not transferable, and such authority as a license confers
is conferred only on the licensee named therein.
Each license issued under this chapter is valid for one year
only from the date of its issuance as shown thereon.
Any time after the expiration of 11 months of the term of the
license required by this chapter, the licensee thereof may file with
the Chief a written application to renew such license on a form to
be furnished by the Chief. Such application must contain the information
required herein for an original license to the extent that such information
would not be duplicative, and such application must be accompanied
by a tender of the correct fee as herein provided. The Chief shall
renew such license application and issue the same unless he/she finds
that the requirements of this chapter are not met. Any person presently
operating as a massager and/or operating a massage establishment in
Kittery on the date of the effective date of the ordinance codified
in this chapter is required to conform to the same within six months
from the effective date thereof.
It is a violation of this chapter for any person to knowingly
make any false, fraudulent or untruthful statement, either written
or oral; in any way knowingly to conceal any material fact; or to
give or use any fictitious name in order to secure or aid in securing
a license required by this chapter, and any such license so secured
is void.
It is a violation of this chapter for any person to fraudulently
make use of, in any manner to his/her own or another's benefit, a
therapeutic massage establishment license or a therapeutic massager's
license which has not been duly issued to him/her in accordance with
the provisions of this chapter.
It is a violation of this chapter for any person to counterfeit
or forge or to change, deface or alter a license required or issued
under the provisions of this chapter.
A.
Any license issued under this chapter may be suspended for a period
not to exceed 90 days by the Chief for a violation of this chapter
by the licensee. Such suspension is effective 10 days after written
notice thereof is given to the licensee.
(1)
Such notice is to inform the licensee of the reason(s) for such suspension,
the duration of such suspension, the beginning of such suspension,
and the right to appeal under the provisions of this chapter.
(2)
Such notice may be given by delivering the same to the licensee or
by depositing the same in the United States mail, postage prepaid,
certified or registered mail, return receipt requested, addressed
to the licensee at the address stated on the license application,
and such notice is deemed given upon deposit of the notice in the
United States mail as aforesaid.
B.
This section is cumulative of all other rules, regulations and laws.
An appeal, as provided herein, from any suspension hereunder does
not stay such suspension pending such appeal.
The health certificate card required by this chapter may be
issued only by a physician licensed to practice in the State of Maine.
Such card must attest the fact that the bearer has been actually and
thoroughly examined by such physician and that such examination discloses
the fact that such person is free from any infectious or contagious
disease in a transmittable condition. Such physician must personally
sign the health certificate card and briefly set forth the nature
and type of examination conducted. Each health certificate card is
valid for one year only from the date of its issuance as shown thereon.
A.
Any person aggrieved by an action or decision of the Chief regarding
the issuance, nonissuance or suspension of a license required hereunder
may, within 10 calendar days thereafter, appeal to the Town Council.
B.
The appeal to the Town Council is initiated by filing a written appeal
setting forth a brief statement of the action from which the appeal
is taken with the Town Clerk for the Town. A copy of the document
containing the notice of the action or decision complained of is to
be attached to the written appeal. Upon receipt of such written appeal,
the Town Council shall promptly, but no later than 20 days, hold a
hearing on the appeal and advise all parties of the date, time and
place of hearing by mailing notice to each party's last known address.
The hearing must be conducted publicly and the testimony be received
under oath. The order and method of presentation of the evidence is
determined by the Council. The Council shall determine if the applicant
complied with the terms of this chapter. After hearing, the Town Council
shall promptly issue its decision by majority vote. The decision must
set forth the findings of fact by the Town Council and direct the
Chief to forthwith issue the license or revoke the suspension if the
finding is in favor of the applicant.
C.
Any person aggrieved by the decision of the Town Council may appeal
such decision to the Superior Court as otherwise provided by law and
Rule 80(B) M.R.C.P.
Any violation of this chapter will be assessed a penalty under Title 1, Chapter 1.3. Each day such violation is permitted to exist after notification thereof by the Code Enforcement Officer constitutes a separate case, offense and violation but may be enforced by the Town in a single proceeding. All fines collected hereunder accrue to the benefit of the Town. In addition to the remedy herein provided, the Town may exercise all other legal and equitable remedies appropriate or necessary to enjoin and prevent further violation of this chapter.
