[HISTORY: Adopted by the Village Board of the Village of Birnamwood 3-10-1997 by Ord. No. 3-97. Amendments noted where applicable.]
It shall be unlawful for any person, corporation or other legal entity to suffer, cause or permit the operation of a massage establishment or for a person to operate as a massage technician, agent, manager or employee, except in strict compliance with this chapter.
For the purposes of this chapter, the following definitions shall apply:
MASSAGE
Any process or procedure consisting of rubbing, stroking, kneading or tapping, by physical or mechanical means, upon the external parts or tissues of the body of another for a consideration.
MASSAGE ESTABLISHMENT
A place of business wherein private massage is practiced, used or made available as a principal use of the premises.
MASSAGE ROOM
The area where private massage is performed.
MASSAGE TECHNICIAN
A person who practices, administers or uses or offers to practice, administer or use massage for a consideration.
OPERATOR
Any person, association, firm, partnership or corporation licensed by the Village to operate a massage establishment.
PATRON
Any person who receives a massage under such circumstances that it is reasonably expected that he or she will pay money or give any consideration therefor.
SEXUAL OR GENITAL PARTS
Includes the genitals, pubic area, buttocks, anus or perineum of any person, or the vulva or breasts of a female.
WAITING AREA
An area adjacent to the main entrance that is separate from any area where massages are given.
A. 
License required. No person shall suffer, cause or permit the conduct of a massage establishment without have first obtained a license therefor from the Village Board upon the recommendation of the Police, License and Fire Committee. A separate license shall be acquired for each such establishment; said license to be in effect from July 1 to June 30.
B. 
Location restricted. No license shall be granted for any establishment, the main entrance to which is within 75 feet of the main entrance to a residence or of the common entry hall to residences, nor for any room or rooms in any hotel or motel.
C. 
Application. Application shall be made in writing on forms supplied by the Clerk-Treasurer. If application is made for a location not previously licensed, the Clerk-Treasurer shall, by regular mail, notify all property owners and registered electors within 250 feet of the proposed location at least 10 days before the hearing on the granting of such license. All applications shall include the following:
(1) 
A nonrefundable fee of $500.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(2) 
The location and mailing address of the proposed establishment.
(3) 
For an individual or for each person of a partnership or joint venture or agent of a corporation:
(a) 
Name and present address.
(b) 
The two immediately previous addresses and dates of residence at each such address.
(c) 
Height, weight, color of hair and eyes, social security number, written proof of age, full set of fingerprints and a recent photograph.
(d) 
The business or occupation for the two years immediately preceding the date of application.
(e) 
Whether a similar license had been revoked or suspended and, if so, the reason therefor and the location thereof.
(f) 
Whether convicted of any crime or ordinance violation related to a massage parlor operation or similar activity within the past three years and, if so, a listing of the same and the locations thereof.
(4) 
If the applicant is a corporation, the names and addresses of each officer and director and of the stockholders of such corporation, together with the extent of the ownership of each and a statement whether such officer, director or stockholder holds office or stock in any other corporation conducting a similar business in the State of Wisconsin. Such application shall be made by an agent registered as such who is a resident of the Village.
(5) 
All telephone numbers of the proposed establishment.
(6) 
The names, addresses and telephone numbers of all persons employed by the applicant at the proposed establishment at the time of application.
(7) 
Certification of compliance of the proposed premises with the Building Code and Fire Code, or in the alternative applicant shall file a bond assuring that any work required to be done to bring the premises up to code shall be done. Compliance with such codes shall be conditions precedent to the opening of business.
(8) 
The application shall contain a statement signed by the applicant and each individual of a partnership or joint venture that all information contained therein is true and correct.
D. 
Additional managers. The issuance of this license shall allow for the licensing of up to three additional managers for each establishment.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
No person shall act or operate for a consideration as a massage technician or manager without certification as required by Ch. 460, Wis. Stats.
A. 
A license may be granted by the Village Board after a hearing at which the applicant may be heard. At least 10 days' notice of such hearing shall be given to the applicant.
B. 
The Village Board shall grant a license within 60 days of application unless it is shown, for a massage establishment license, that the operation as proposed by the applicant does not comply with all applicable state laws and this Code and, for all licenses; that the applicant or any partner or any officer, director or stockholder of a corporate applicant has been convicted in a court of competent jurisdiction of an offense under Ch. 944, Wis. Stats., or involving substances included in Sub. II of Ch. 961, Wis. Stats., or of an offense against the person or property of another within the past three years; that the information required on the application is incomplete or that any applicant has knowingly or with the intent to deceive made any false, misleading or fraudulent statement of fact in the application or any other document required by the Village in conjunction therewith; or that the applicant is not a resident of the Village prior to the date of application.
C. 
In the event of denial, the applicant shall receive written notification thereof setting forth the reasons for the denial within 10 days after such denial.
D. 
Licenses granted by the Village Board shall expire one year from the date of granting. Reapplication therefor shall not be less than 60 days prior to such expiration date and shall be the sole responsibility of the applicant.
E. 
No license shall be transferred between locations or persons, and no massage establishment license shall be sold or be subject to transfer to corporate assets or change of corporation officers or directors.
F. 
The massage technician's license does not entitle the holder to operate or manage a massage establishment.
A. 
Each establishment shall at all times maintain and comply with the following regulations:
(1) 
The establishment shall comply with all Village codes.
(2) 
Only one nonflashing business sign clearly identifying the establishment as a massage establishment shall be posted at the main entrance. No description of services shall be permitted on such sign.
(3) 
No establishment shall be open for business between the hours of 10:00 p.m. and 8:00 a.m.
(4) 
Only massage technicians licensed pursuant to this chapter shall be employed as massage technicians by the establishment.
(5) 
The practice of all massage technicians employed by the establishment shall be limited to the licensed premises.
(6) 
No person under the age of 18 years shall be permitted on the premises.
(7) 
No intoxicating beverages or substances included in Sub. II of Ch. 961, Wis. Stats., shall be permitted in the licensed establishment. Food shall be permitted only when there is no charge therefor and when a food preparation area, including sink with hot and cold running water, is a part of the establishment. A state license shall be obtained for selling or dispensing food when said license would be required pursuant to state law.
(8) 
The establishment shall provide a waiting area for patrons separate from any area wherein massages are given. There shall be direct access to this area from the main entrance or from the hallway connected only to the main entrance.
(9) 
The operator or a licensed manager shall be present on the premises at all times during hours of operation and shall be responsible for the operation of the establishment.
(10) 
The establishment shall permit inspections of the premises at any time during business hours by the Building Inspector, Fire Inspector, Health Officer, Zoning Administrator, or personnel of any law enforcement agency.
(11) 
The establishment shall keep records of the names and addresses of all of its massage technicians, agents, managers and employees and the date of employment and termination of each. Such records shall be open to inspection by any of the personnel listed in Subsection A(10) above.
(12) 
The establishment shall report any change of fact required on the application form and all personnel changes to the Clerk-Treasurer within 10 days after such change.
B. 
Each technician shall at all times comply with the following regulations:
(1) 
The technician shall practice only on the premises of a licensed massage establishment.
(2) 
The technician shall massage only patrons over the age of 18 years.
(3) 
No technician shall administer a massage:
(a) 
If said technician believes, knows or should know that he is not free of any contagious or communicable disease or infection.
(b) 
To any massage patron exhibiting any skin fungus, skin infection, skin inflammation or skin eruption.
(4) 
The technician shall report any change of fact required in the application form to the Clerk-Treasurer within 10 days after such change.
(5) 
It shall be unlawful for any person:
(a) 
In a massage establishment, to place his or her hand or hands upon, to touch with any part of his or her body, to fondle in any manner, or to massage a sexual or genital part of any other person.
(b) 
In a massage establishment, to expose his or her sexual or genital parts or any portion thereof to any other person. It shall also be unlawful for any person in a massage establishment to expose the sexual or genital parts or any portion thereof of any other person.
(c) 
While in the presence of any other person in a massage establishment, to fail to conceal with a fully opaque covering the sexual or genital parts of his body.
(d) 
Owning, operating or managing a massage establishment knowingly to cause, allow or permit in or about such massage establishment any agent, employee or any other person under his control or supervision to perform such acts prohibited in Subsection B(5)(a), (b) or (c) above.
(e) 
In a massage establishment, for a consideration, to offer to perform or to make available or permit, or in any way participate in, the performance of any act prohibited by Subsection B(5)(a), (b) or (c) above.
A. 
Grounds. The license granted herein may be revoked or suspended for up to six months by the Village Board:
(1) 
If the applicant has made or recorded any statement required by this chapter knowing it to be false or fraudulent or intentionally deceptive.
(2) 
For the violation of any provision of this chapter, except for establishment license matters involving violation of Village codes, in which case the license shall be revoked after the second conviction thereof in any license year.
(3) 
If a technician's or manager's license, after one conviction of any offense under Ch. 944, Wis. Stats., or of an offense involving substances included in Sub. II of Ch. 961, Wis. Stats., or of an offense against the person or property of a patron, whether such occurred on or off the premises of the establishment.
(4) 
If an establishment license, after one conviction of any establishment personnel of an offense under Ch. 944, Wis. Stats., or of an offense against the person or property of a patron or of an offense involving substances in Sub. II of Ch. 961, Wis. Stats., where there is shown the participation or knowledge of any other establishment personnel or of any individual within the business structure of the applicant.
B. 
Notice and hearing. No license shall be revoked or suspended by the Village Board except upon due notice and a hearing to determine whether grounds for such action exist. The notice shall be in writing and shall state the grounds of the complaint against the licensee. The notice shall be served on the licensee at least 15 days prior to the date of the hearing and shall state the time and place thereof. The licensee shall be entitled to be heard, to be represented, to cross-examine opposing witnesses and to present witnesses in his own behalf under the subpoena of the Village Board, if such is required. The hearing shall be stenographically recorded, and a copy of the transcript shall be available to the licensee at the expense of the licensee. The Village Board shall decide the matter and shall prepare a written decision, which shall be filed with the Clerk-Treasurer and a copy thereof mailed to the licensee within 20 days after the hearing.
This chapter shall not apply to the following classes of individuals while engaged in the duties of their respective professions:
A. 
Physicians, surgeons, chiropractors, osteopaths, masseurs or physical therapists licensed or registered to practice their respective professions under the laws of the State of Wisconsin or nurses registered under the laws of the State of Wisconsin acting under their direction and control.
B. 
Barbershops and beauty parlors, barbers and beauticians licensed under the laws of the State of Wisconsin, provided that such massage as is practiced is limited to the head and scalp.
C. 
Accredited high schools and colleges, and coaches and trainers therein, while acting within the scope of their employment.
The operation of a massage establishment without a license or the activity of an individual as a massage technician without a license is deemed a public nuisance and may be enjoined by the Village.
A. 
General penalty. Any person who shall violate any of the provisions of this chapter shall, upon conviction of such violation, be subject to a penalty, unless otherwise provided, which shall be as follows:
(1) 
First offense, penalty. Any person who shall violate any provision of this chapter subject to a penalty shall, upon conviction thereof, forfeit not less than $25 nor more than $250 together with the costs of prosecution and, in default of payment of such forfeiture and costs of prosecution, shall be imprisoned in the County Jail until said forfeiture and costs are paid, but not exceeding 90 days.
(2) 
Second offense, penalty. Any person found guilty of violating any ordinance or part of an ordinance of this chapter who shall previously have been convicted of a violation of the same ordinance within one year shall, upon conviction thereof, forfeit not less than $30 nor more than $500 for each such offense together with the costs of prosecution and, in default of payment of such forfeiture and costs, shall be imprisoned in the County Jail until said forfeiture and costs of prosecution are paid, but not to exceed six months.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
B. 
Continued violations. Each violation and each day a violation continues or occurs shall constitute a separate offense. Nothing in this chapter shall preclude the Village from maintaining any appropriate action to prevent or remove a violation of any provision of this chapter.