[HISTORY: Adopted by the Town Board of the Town of Greenburgh 11-9-2015 by L.L. No. 15-2015. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 285.
The Town of Greenburgh finds it necessary to protect the public
from unlicensed establishments that purport to perform legal massages
on unsuspecting persons; from establishments operating under the guise
of being a massage establishment, when actually engaging in illegal
activities, and exposing the public to unclean, unhealthy and possibly
contaminated conditions; and from sex trafficking and commercial sexual
exploitation. These illegal activities have a deleterious effect on
the public health, safety and welfare of the Town, its residents and
the public at large. It is, therefore, the intent of the Town to regulate
establishments that perform massages and thereby eliminate those businesses
that jeopardize public health, safety and welfare by allowing employees
who are not licensed massage therapists to perform massages.
This chapter is adopted under the authority of New York Town
Law § 130(11). Nothing herein is intended to preempt the
authority of the State of New York to regulate the professional licensing
and professional conduct of massage therapy under the State Education
Law § 7800 et seq.
As used in this chapter, the following terms and words shall
have the meanings indicated:
Any method of pressure on, or friction against, or stroking,
kneading, rubbing, tapping, pounding, vibrating, or stimulating of
the body, flesh or musculature with the hands or with the aid of any
mechanical electrical apparatus or appliance, with or without such
supplementary aids such as rubbing alcohol, liniments, antiseptics,
oils, powder, lotions, ointments, or other similar preparations, for
therapeutic, rehabilitative, relaxation or other purposes.
Any establishment, other than a massage parlor, having a fixed place of business where massages are administered for pay only by duly licensed massage therapists. This definition shall not be construed to include any establishment or a solo practitioner licensed massage therapist listed as exempt from the licensing requirements of this chapter pursuant to § 375-5.
Any establishment or business, by whatever name called, where massages are administered by one or more unlicensed massage practitioners who are required to be licensed to perform such massages. This definition shall not be construed to include any establishment listed as exempt from the licensing requirements of this chapter pursuant to § 375-5. Massage parlors are prohibited in every zoning district in the Town.
Any individual who engages in the practice of massage.
The owner, proprietor, manager, or operator of a massage
establishment.
Any individual, partnership, firm, association, company,
corporation, or combination of individuals of whatever form or character.
The unincorporated areas of the Town of Greenburgh.
Subject to the specific exemptions in § 375-5 herein, this chapter is applicable to all massage establishments and massage parlors in the Town, including those now existing and those that may seek to open in the future.
Establishments in the Town engaged in the following shall be
exempt from the requirements of this chapter:
A.
The practice of massage therapy by any person who is authorized to
practice medicine, nursing, osteopathy, physiotherapy, chiropractic,
podiatry or acupuncture by the State of New York or any other state
within the United States of America. This exemption shall only apply
to the person who is so authorized and not one employed by, agent
of, or assisting such authorized person.
B.
The practice of massage therapy by any massage therapist, masseur
or masseuse, as defined in § 7802 of the New York State
Education Law, employed by any person who is authorized to practice
medicine, nursing, osteopathy, physiotherapy, chiropractic, podiatry
or acupuncture by the State of New York; said employment is not deemed
operation of a massage establishment.
C.
The practice of that massage which is customarily given in barbershops
or beauty parlors for the purpose of beautification by any licensed
barber or beauty culturist.
D.
The practice of massage therapy by any person:
(1)
Employed in a medical institution licensed or chartered by the State
of New York, provided that such person is under the on-site supervision
of a person licensed to practice massage therapy or authorized to
practice massage therapy in conjunction with the practice of medicine,
nursing, osteopathy, physiotherapy, chiropractic, or podiatry.
(2)
Enrolled in a program of a recognized school or institute of massage
therapy, provided that such person is under the on-site supervision
of a person licensed to practice massage therapy or authorized to
practice massage therapy in conjunction with the practice of medicine,
nursing, osteopathy, physiotherapy, chiropractic, or podiatry.
(3)
Employed as a trainer by a professional athletic association, club
or team, or as a member of the physical education department of an
accredited university, college or high school.
(4)
Employed as a trainer and/or massage therapist in an indoor membership
gymnasium or personal training facility.
(5)
Listed as exempt under § 7805 of the New York State Education
Law.
E.
Any licensed massage therapist working as a solo practitioner, which
for purposes of this section shall mean a licensed massage therapist
solely physically performing massages on the premises who is not employed
by or otherwise affiliated with any massage establishment required
to be licensed by this chapter.
Subject to the provisions of § 375-14 for massage establishments existing on the date this chapter was first enacted, it shall be unlawful for any person to open, conduct, maintain or operate a massage establishment unless the room, place, or space wherein the same is conducted, maintained or operated is licensed in the manner prescribed in this chapter.
A.
No massage establishment may open, operate, exist or be occupied within the Town unless a massage establishment license shall first have been obtained in accordance with the application procedures set forth in § 375-7 hereunder.
B.
A property owner or landlord shall not permit a tenant or subtenant
to open or operate a massage establishment within the Town unless
a massage establishment license shall first have been obtained by
the property owner, landlord, tenant or subtenant.
C.
The fee for such massage establishment license shall be set by resolution
of the Town Board.
A.
Any person desiring to operate a massage establishment shall procure
a massage establishment license from the Town Clerk after filing an
application on the form provided. Such form shall contain, but need
not be limited to, the following information:
(1)
Name, address, date of birth and last four digits of social security
number of applicant(s), as well as proof of identification.
(a)
If the applicant is an individual, the name, address, date of
birth and last four digits of social security number of the individual.
(b)
If a partnership, the names, addresses, dates of birth and last
four digits of social security numbers of all persons having an ownership
interest in the partnership.
(c)
If a corporation, the names, addresses and dates of birth and
last four digits of social security numbers of all officers, directors
and managers, and the name of each stockholder having 10% or more
of the total outstanding shares of any class of stock. There shall
also be given the number of shares held by these stockholders and
their percentage of the total outstanding shares of stock.
(d)
If the applicant is other than an individual, partnership, or
corporation, the organizational structure and the name, address, date
of birth and last four digits of social security number of all principals
in the organization.
(2)
Name, address, date of birth and last four digits of social security
number of each and every manager of the premises.
(7)
The name of the massage establishment under which the applicant will
operate and the location.
(8)
The nature of the massage services to be provided.
(9)
The maximum number of private rooms to be utilized for massages and
the number of entrances and exits to the massage establishment itself.
(10)
Whether any part of the premises to be used will be used for
any purpose other than for providing of massages.
(11)
The names and addresses of all persons who will be providing
massage services, and provide copies of their valid licenses, permits
and/or registrations required to perform such services. Should the
list of persons subsequently change due to new hires or terminations
of employment, within 10 days of the change the Town Clerk must be
notified in writing and provided an updated list.
(12)
Affix to the application two copies of a drawing showing the
dimensions of all rooms to be used for massage services and the locations
therein of all massage tables.
B.
Said application shall be signed and sworn to, before a notary public or other officer authorized to administer an oath, by all persons coming under § 375-7A(1).
C.
If the applicant has previously had a massage establishment or similar license suspended or revoked, or if any of the persons enumerated in § 375-7A(1) or (2) were named in an application for a massage establishment license that was suspended or revoked, or a materially false statement is contained in the filed or a prior massage establishment license application, all persons described in § 375-7A(1) and (2) shall be fingerprinted as part of the application process. The application shall be deemed incomplete and be automatically denied if any of the persons enumerated in § 375-7A(1) and (2) have not submitted their fingerprints with said application. The fingerprints shall be provided in a manner prescribed by the Town's Chief of Police, or her/his designee.
D.
Said application shall be referred to the Chief of Police, the Fire
Marshal and the Building Inspector for proper investigation of the
applicant and the premises. As part of such investigation, the Chief
of Police, the Fire Marshal and the Building Inspector shall determine
whether such applicant and premises conform to the requirements of
this chapter and all laws and regulations of the State of New York
and the Town of Greenburgh. At the conclusion of such investigation,
the Chief of Police, the Fire Marshal and the Building Inspector shall
each render a written report to the Town Clerk with their respective
recommendation as to whether or not such application should be granted.
The Chief of Police, in making such recommendation, shall investigate
the applicant's character and conduct as a law-abiding person,
including any convictions of felonies and crimes related to the ownership
or operation of a massage establishment, massage parlor and/or similar
business.
E.
Within 30 days after the receipt of the reports and recommendations
of the Chief of Police, the Fire Marshal and the Building Inspector,
the Town Clerk will grant or not grant such license. The Town Clerk
shall grant such massage establishment license if, and only if, the
Chief of Police, the Fire Marshal and the Building Inspector each
recommend that such license be issued.
F.
If a license is denied by the Town Clerk:
(1)
Notice shall be given to the applicant within 10 days, whereupon the applicant may appeal to the Town Board such denial within 30 days of the notice date. If the applicant timely appeals such a denial by giving notice thereof in accordance with this subsection, the applicant must be prepared to go to a hearing on the appeal within 30 days of the Town Clerk's receipt of the notice of appeal. For applications for new licenses filed within four months of the enactment of this chapter and for renewals, if the applicant causes a delay in the commencement of the hearing on the appeal beyond such thirty-day period, the provisions of subsection H of this section shall not apply, and all massage activities shall cease forthwith.
(2)
The Town Board shall be required to complete a public hearing upon
every appeal from the denial of a massage establishment license within
30 days of its commencement or within a mutually agreed-upon time
thereafter, not to exceed an additional 30 days. The applicant shall
be given at least 10 days' notice of such public hearing, which
notice shall include a statement of the time, place and nature of
the hearing; a statement of the legal authority and jurisdiction under
which the hearing is to be held; a reference to the particular sections
of the statutes and rules involved, where possible; and a short and
plain statement of matters asserted. Upon application of the applicant,
a more definite and detailed statement may be furnished if the Town
Board finds that the statement initially provided was not sufficiently
definite or not sufficiently detailed. Any statement furnished shall
be deemed, in all respects, to be a part of the notice of hearing.
(3)
At such hearing, the applicant shall be given an opportunity to present
written argument on issues of law and an opportunity to present evidence
and such argument on issues of fact; provided, however, that nothing
contained herein shall be construed to prohibit the Town Board from
allowing the applicant to present oral argument at such hearing or
at any mutually agreed upon continuation thereof within the prescribed
sixty-day period following the commencement of the public hearing.
In fixing the time and place for the hearing and oral argument within
the prescribed period, due regard shall be had for the convenience
of the applicant and the Town Board.
(4)
Unless precluded by statute, disposition may be made of any hearing
by stipulation, agreed settlement, consent order, default or other
informal method.
(5)
At any hearing held pursuant to this section, the applicant, as well
as any other interested parties, including any resident of the Town
of Greenburgh, may comment. After the conclusion of said hearing and
within a period of 30 days after the record is closed, the Town Board
shall be required to find, in writing, whether the application is
incomplete, the denial should be upheld, or, in the exercise of its
discretion, the massage establishment license must be issued by the
Town Clerk. A finding that false information was provided on the application
filed may be used as a basis for denial. In any case, written findings
shall be provided to the applicant to support the action taken.
G.
All massage establishment licenses expire one year after the anniversary of the date of prior issuance. A complete application for renewal must be received by the Town Clerk on or before the anniversary date for the provisions of Subsection H below to apply. If required pursuant to § 375-7C, fingerprints shall be provided with the initial application and every two years thereafter with the annual renewal application.
H.
When an applicant has made a timely and complete application to renew a previously issued massage establishment license, the prior year's license shall not expire until a determination on the renewal application has been made by the Town Clerk; or, if the application is denied and timely appealed, until a decision on the denial has been rendered by the Town Board after public hearing thereon. When an applicant has filed a complete application for a new massage establishment license within four months of the date this chapter was enacted, activities on the premises in conformity with this chapter may continue during that four-month period allowed for the applicant to obtain the required special permit pursuant to Chapter 285 and the required massage establishment license pursuant to this chapter. Applicants applying for a new license after four months of the date this chapter was enacted shall be required to obtain the required massage establishment license and special permit prior to opening.
I.
Anything contained in Subsection H of this section to the contrary notwithstanding, if the recommendations of any one of the officials described in Subsection D of this section contain findings that the public health, safety and welfare require emergency action and the termination of all massage establishment activities pending such action, the provisions of § 375-16 shall apply.
A.
A license may be suspended or revoked by the Town Clerk if, and only if, the Building Inspector, Police Department or Fire Marshal deems such action appropriate, in writing, citing a finding of violation of this chapter, the laws and regulations of the State of New York or the Town of Greenburgh, or upon the grounds that disorderly, obscene or immoral conduct is permitted on the licensed premises or is occasioned in the vicinity of such premises as a result of its existence. In the event that a license is so suspended or revoked pursuant to this section, notice by the Town Clerk shall be given to the applicant within 10 days, whereupon the applicant may appeal such decision within 30 days to the Town Board. The procedures for such appeal shall be the same as set forth in § 375-7F hereof for denied applications, and the procedures to reopen shall be as stated in § 375-16.
B.
Whenever any massage establishment license shall be suspended or revoked, no refund of any unearned portion of the fee shall be made, and at least six months from the time of such suspension or revocation shall elapse before another license shall be issued to the applicant or any of the persons enumerated in § 375-7A(1) and (2) on the application. If the license of any massage establishment is twice suspended or revoked within a period of one year, a new license shall not be issued to such applicant or any person enumerated in § 375-7A(1) and (2) for a period of at least one year from the date of the second suspension or revocation.
A.
Massage establishment licenses are not transferable.
B.
Where there is any change regarding any person enumerated in § 375-7A(1) or (2), or any person attains a status enumerated in § 375-7A(1) or (2), or where there is a change in the nature of the activities to be conducted in such massage establishment, the applicant shall cause to be filed with the Town Clerk, within 10 days thereof, a supplemental application setting forth the name or names of all persons so affected, along with all other information required to be furnished by such person under § 375-7A(1) and (2). A supplemental filing fee set by resolution of the Town Board shall be paid at the time of application.
C.
Said supplemental application shall be referred to the Chief of Police, the Fire Marshal and the Building Inspector for a report and recommendation pursuant to the provisions of § 375-7D.
D.
Within 30 days after the receipt of the reports and recommendations
of the Chief of Police, the Fire Marshal and the Building Inspector,
the Town Clerk shall grant such supplemental application if, and only
if, the Chief of Police, the Fire Marshal and the Building Inspector
each recommend that such license be issued.
E.
If a supplemental license is denied by the Town Clerk, notice shall be given to the applicant within 10 days, whereupon the applicant may appeal such denial within 30 days to the Town Board. The procedures for such appeal is set forth in § 375-7 hereof, and such massage establishment shall only be permitted to operate in accordance therewith. In no event shall massages be permitted pending the appeal and determination in the event there has been a finding pursuant to § 375-7I hereof.
Every person who obtains a massage establishment license in
accordance with the provisions of this chapter shall immediately post
such license and keep the same posted while in force in a conspicuous
place stated in the application for such license. In addition, a copy
of the current New York State license/permit, registration and a photo
ID of each person performing massages on the premises shall be posted
in that location to establish that all persons providing massage services
on the premises are properly licensed and registered. Home addresses
may be redacted before posting the documents. Upon request by either
a customer or the Building Department or the Police Department, the
originals of such documents shall be produced for inspection. This
requirement shall not apply to a person exempt by state law from having
to be licensed and/or registered.
Whenever a new massage establishment license is required because
of a change in the name of a currently licensed massage establishment
or whenever a license is lost or destroyed without fault on the part
of the holder or his agent or employee, a duplicate license, in lieu
thereof, may be issued upon notarized written request and the payment
of a fee established by resolution of the Town Board.
The tenant, subtenant, and owner/landlord of a building and the permittee shall be required to comply with the regulations set forth in in this chapter. The owner of the building and the permittee shall prohibit any tenant, subtenant, or other person from operating in violation of this chapter and shall be subject to the penalties for noncompliance set forth in § 375-15 hereof.
The following regulations shall be applicable to all massage
establishments and massage activities:
A.
There shall be no outdoor activity associated with the massage establishment.
B.
Price rates for all services shall be prominently posted or provided
in brochures in the reception area in a location available to all
prospective customers.
C.
Business owners and managers shall ensure that the sexual or genital
areas of patrons are always covered by sheets, cloths or undergarments
when in the presence of an employee of the massage establishment.
D.
Business owners and managers shall also ensure that no person in
the massage establishment shall place her or his hand upon, or touch
with any part of her or his body, or fondle in any manner, or massage,
a sexual or genital area of any other person.
E.
All massages offered in the massage establishment shall be therapeutic
and health related. No massages shall be offered or provided, including
by means of print advertisement or Internet advertisement, which are
unlawful, illicit, or involve sexual acts or relations or are sexually
oriented.
F.
All refuse, garbage and waste, solid or otherwise, shall be properly
disposed of; laundry shall be changed after each massage/client; laundry
shall be cleaned on a daily basis during the days the establishment
is in operation; all rooms, tables, etc., shall be sanitized daily;
and all persons in the massage establishment shall comply with any
and all applicable public health rules and regulations, and such rules
and regulations shall be posted in the establishment.
G.
No massage establishment shall have an entrance or exitway providing
a direct passageway to any other type of business, residence or living
quarters.
H.
There shall be no obstruction of the passage of light through any
windows of the massage establishment premises by means including,
but not limited to, affixing plywood, paper, or taping other opaque
materials over the windows. This restriction does not apply to the
standard use of curtains or blinds.
I.
No massage services shall be provided to persons under the age of
18 unless the parent or guardian of said minor is physically present
when such services are provided or such parent or guardian has provided
written authorization, properly notarized, for such services.
J.
Any massage practitioner working in the massage establishment providing
massage services or any employee occupying the establishment shall
obtain, and maintain in effect, all applicable licenses, permits and
registrations required by any and all state and local governmental
authorities for the provision of massage services, including those
required pursuant to Article 155 of the New York State Education Law
(§ 7800 et seq.) and this chapter. Anyone providing on the
premises massage services that require a license from the State of
New York shall possess that license in full force and effect.
K.
All persons providing massage services shall obtain and keep current a United States or New York State government-issued photo ID as well as licenses/permits and registrations from the New York State Department of Education ("DOE"), the New York State Department of State ("DOS") or other appropriate New York licensing department establishing that said person is licensed to provide massage services, and such persons are to post same pursuant to § 375-10.
L.
The names and addresses of all persons who are providing massage
services, along with copies of their licenses, permits and registrations,
shall be provided to the Town Clerk before any such person may be
permitted to provide massage services. The Town Clerk must be notified
in writing within 10 days of the name of any person who performed
massages who is no longer employed at the massage establishment and
any person who is newly hired to perform massages.
N.
Within five days after receipt of same, the operator of a massage
establishment shall provide the Town Clerk with copies of any summonses
or violations issued with respect to the operation of the massage
establishment.
O.
The massage establishment shall not be conducted in a disorderly
manner or in a manner which constitutes a public nuisance.
P.
The special permit issued pursuant to Chapter 285 and the massage establishment license issued pursuant to this chapter shall be immediately revoked if, subsequent to the issuance of the special permit or license, any person providing massage services on the premises is found to have been criminally convicted of a charge involving prostitution or illegal drug use or the unauthorized or unlicensed provision of massage services. Under such circumstances, no massage activities will be permitted prior to application for and issuance of a new special permit pursuant to Chapter 285 and a new massage establishment license.
Q.
It shall be unlawful to operate a massage parlor at any time in any
location in the Town.
A.
Registration. Any provision of §§ 285-29.1H and 285-42 to the contrary notwithstanding, all massage establishments in existence at the time this chapter becomes effective shall, within four months thereof, obtain the required massage establishment license from the Town Clerk pursuant to the application procedure in this chapter and the required special use permit from the Town Board pursuant to Chapter 285.
B.
Compliance. Four months after the effective date of this chapter, any massage establishment in existence when this chapter became effective that is determined not to be in compliance therewith shall be ordered closed and shall be made to obtain a massage establishment license and to comply with all of the requirements of Chapter 285, including the special permit requirement for massage establishments, before reopening.
A.
The Town of Greenburgh Police Department and/or the Building Inspector
shall be charged with the enforcement of this chapter. Any person
violating this chapter shall, upon conviction, be guilty of a misdemeanor
and subject to a fine of up to $2,500 or 15 days' imprisonment,
or both. Each day that a violation continues shall be deemed a separate
offense. Any person convicted of a second violation of this chapter
within three years of a prior conviction under this chapter shall
be guilty of a misdemeanor and, upon conviction, shall be subject
to a fine of twice that imposed for the first offense, up to $5,000,
and/or imprisonment for a period not to exceed 15 days.
B.
Nothing herein shall be deemed to preclude the Office of the Town
Attorney from exercising its authority to seek the revocation, for
good cause shown, of any license or permit that may be issued hereunder
and to obtain an order requiring the immediate closure of a massage
parlor or premises found not to have the required license and/or permit.
A.
When, in the opinion of the Fire Marshal, Building Inspector or any
police officer of the Town of Greenburgh, there exists a violation
of this chapter or any law and regulation of the State of New York
or the Town of Greenburgh which creates imminent danger to public
health, safety or welfare, the Fire Marshal, Building Inspector or
any police officer of the Town of Greenburgh may order the owner:
B.
Upon failing to comply with such an order, the person or persons
so ordered shall be guilty of a misdemeanor and subject to immediate
arrest for violation of this chapter and any applicable provisions
of the Penal Law of the State of New York. In order to protect the
public health, safety and welfare, the Fire Marshal, Building Inspector
or any police officer of the Town of Greenburgh may order such massage
establishment evacuated, and the massage establishment license of
such establishment shall be immediately suspended; provided, however,
that within 24 hours or the next business day following such evacuation,
whichever is later, there shall be a finding by the Building Inspector,
Fire Marshal or Police Chief that emergency conditions exist that
require the continuation of the suspension until a hearing is provided
or other action taken as provided for under this chapter. In the event
that there is not such a finding, the massage establishment shall
be permitted to operate pending a hearing or other action taken as
provided for under this chapter.
The property owner, landlord, permittee and massage establishment
license holder shall provide the Building Department and the Police
Department access to the premises during business hours to allow them
to ensure compliance with the provisions of this chapter.
Wherever the requirements of this chapter are at variance with
other articles, sections or chapters of the Code of the Town of Greenburgh,
or any other lawfully adopted rule, regulation, local law or other
enactment, the most restrictive or that imposing the highest standards
shall govern unless a contrary intent is expressly stated.
