Town of Clarkstown, NY Massage Establishments

Any person, including a certified massage therapist, who renders any service in connection with the operation of a massage business and receives compensation from the operator of the business or patrons.

LICENSED MASSAGE THERAPIST

An individual who has the New York State minimum course requirements and has received a diploma in the field of massage therapy from an educational institution accredited by a state board of education and has passed the New York State Massage Therapy Examination that is satisfactory to the State Board of Massage Therapy and has received a valid license to practice massage therapy from the New York State Education Department's Division of Professional Licensing Services in order to become a licensed massage therapist.

LICENSEE

The operator of a massage establishment.

MASSAGE

Any method of pressure on or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of the external soft parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments or other similar preparations commonly used in this practice.

MASSAGE ESTABLISHMENT

Any establishment having a fixed place of business where any person, firm, association or corporation engages in or carries on or permits to be engaged in or carried on any of the activities mentioned in this chapter.

MASSAGE THERAPIST IN TRAINING

An individual who may hold a limited permit for massage therapy pursuant to the New York State Education Department requirements.

OUT-CALL MASSAGE SERVICE

Any business, the function of which is to engage in or carry on massages at a location designated by the customer or client rather than a massage establishment.

PERSON

Any individual, partnership, firm association, joint stock company, corporation or combination of individuals of whatever form or character.

SEXUAL OR GENITAL AREA

Genitals, pubic area, anus or perineum of any person, or the vulva or breasts of a female.

§ 126-2 License required.

[Amended 3-16-2010 by L.L. No. 1-2010]

It shall be unlawful for any person to engage in, conduct, carry on, or permit to be engaged in, conducted, or carried on, in or upon any premises in the Town, the operating of a massage establishment as herein defined, without first having obtained a business license for a massage establishment from the Town of Clarkstown Building Inspector.

§ 126-3 Business license for massage establishments.

Every applicant for a license to maintain, operate, or conduct a massage establishment shall file an application in triplicate with the Town Building Inspector upon a form provided by said Building Inspector.

The Building Inspector may refer copies of such application to the Police Department. The appropriate departments may inspect the premises proposed to be operated as a massage establishment, make an investigation of the application and make written recommendations to the Building Inspector concerning compliance with Town codes and federal or state law.

[Amended 3-16-2010 by L.L. No. 1-2010; 3-22-2016 by L.L. No. 4-2016]

Within 60 days of receipt of the recommendation of the aforesaid departments, the Building Inspector shall notify the applicant that his application is granted, denied, or held for further review. The period of such additional review shall not exceed an additional 30 days unless otherwise agreed to by the applicant. Upon the conclusion of such additional review, the Building Inspector shall advise the applicant in writing whether the application is granted or denied.

Whenever an application is denied or held for further review, the Building Inspector shall advise the applicant of the reasons for such action. An application may be denied by the Building Inspector if he finds:

(1)

That the operation, as proposed by the applicant, if permitted, would not have complied with the applicable federal, state and local laws, including but not limited to the building, fire and zoning codes of the Town; or

(2)

That the applicant and/or any other person who will be directly or indirectly engaged in the management and operation of a massage establishment has been convicted of:

(a)

A felony;

(b)

An offense involving sexual misconduct with children; and

(c)

Soliciting for a prostitute, pimping, prostitution, or misdemeanor involving moral turpitude.

The failure or refusal of the applicant to promptly give any information relevant to the investigation of the application, or his refusal or failure to appear at any reasonable time and place for examination under oath regarding said application, or his refusal to submit to or cooperate with any inspection required by this chapter shall constitute an admission by the applicant that he is ineligible for such license and shall be grounds for denial thereof by the Building Inspector.

Every massage establishment license issued pursuant to this chapter shall be issued for the life of the tenancy and be valid only for the individual(s) named on the application.

[Amended 3-16-2010 by L.L. No. 1-2010]

§ 126-4 Review by Zoning Board of Appeals.

The denial of the Building Inspector with regard to the issuance of any license under this chapter shall be reviewable by the Zoning Board of Appeals upon the written request of the party filed with the Zoning Board of Appeals within 30 days of such denial. The Zoning Board of Appeals shall conduct a hearing to review the material provided the Town, the report of the Building Inspector or any other Town employee or witness. The applicant may present any evidence relevant to the denial. The decision of the Zoning Board of Appeals upon such hearing shall be a final appealable order within the Town.

§ 126-5 Massage therapist license.

Every applicant for a massage therapist license shall file an application in triplicate with the Town Building Inspector upon a form provided by said Building Inspector.

§ 126-6 Massage establishment license application.

The application for a license to operate a massage establishment shall set forth the exact nature of the massage to be administered, the proposed place of business and facilities therefor, the proposed number of employees or independent contractors, hours of operation and other relevant matters to the operation of business.

In addition to the foregoing, any applicant for a license, including any partner of a partnership applicant, and any officer or director of a corporate applicant and any stockholder holding more than 10% of the stock of a corporate applicant, shall furnish the following information:

(1)

Name and address;

(2)

Written proof that the individual is at least 18 years of age;

(3)

All residential addresses for the past three years;

(4)

Date of birth;

(5)

Social security number or resident alien;

(6)

Driver's license number, if applicable;

(7)

The business, occupation, or employment of the applicant for the three years immediately preceding the date of application;

(8)

The massage or similar business license history of the applicant; whether such person, in previously operating in this or another town, village, city or state under license, has had such license revoked or suspended, the reason therefor, and the business activity or occupation subsequent to such action of suspension or relocation.

(9)

All criminal and violation convictions, and forfeitures of bond, except minor traffic violations;

(10)

The fingerprints and photograph of applicant; and

(11)

If the applicant is a corporation, a copy of its articles of incorporation and/or permission to do business in New York shall be attached.

The application for a license to operate a massage establishment shall state the name(s) of the individuals who shall be certified massage therapists, whether employees or independent contractors. The application shall be revised as additional certified massage therapists are employed or allowed to work on the premises. Said application shall be accompanied by a copy of the diploma issued to any such certified massage therapist

The applicant for a license shall also sign an affirmative statement accepting full responsibility for any acts of an independent contractor who is licensed as a certified massage therapist. Any violation of a Town ordinance, state law or federal law by the certified massage therapist on the premises of the massage establishment shall be grounds to revoke, suspend or fine the massage establishment license holder, as well as the certified massage therapist. Lack of knowledge of the activities of the certified massage therapist by the massage establishment license holder shall not be a defense.

§ 126-7 Issuance of massage establishment license.

Upon receipt of the recommendations of the departments referred to in this code, the Building Inspector shall issue a license to maintain a massage establishment.

The license holder may allow independent contractors to use or work on the premises as licensed massage therapists so long as the massage establishment license holder accepts full responsibility for acts of the licensed massage therapist for any violation of federal, state or local ordinance laws regarding the activities of the licensed massage therapist. It shall be the obligation of the license holder to promptly inform the Town of any change of status of any licensed massage therapist working at the establishment of the license holder. It shall be the sole obligation of the establishment to require all massage therapists employed in the establishment to register pursuant to this chapter and receive a massage therapist license issued by the Town. Further, it is the sole obligation of the establishment to advise the Town of the status of the licensed massage therapist employed by the establishment or of any violation of law by the licensed massage therapist.

§ 126-8 Requirement to employ licensed massage therapist.

It shall be unlawful to engage in, conduct, operate, carry on or permit to be engaged in, conducted, operated or carried on, in or upon any premises in the Town, the business of a massage establishment without having at least one licensed massage therapist employed.

§ 126-9 Licensed massage therapists.

[Amended 3-16-2010 by L.L. No. 1-2010]

Any person, including an applicant for a massage establishment license or a massage therapist license, who engages in the practice of massages herein defined shall file an application for a certified massage therapist license with the Building Inspector upon a form provided by said Building Inspector.

§ 126-10 Application for massage therapist license.

The application for a certified massage therapist license shall supply the following information:

Name and residence address;

Date of birth;

Social security number and driver's license number, if any;

Applicant's weight, height, color of hair and eyes;

Written evidence that the applicant is at least 18 years of age;

Business, occupation, or employment of the applicant for the three years immediately preceding the date of application;

The business where the applicant intends to work;

A statement whether the applicant has ever been arrested or convicted on a charge of committing any crime except minor traffic violations. If the answer is in the affirmative, a statement must be made giving the place and the court in which such conviction, plea or forfeiture was had, the specific charges under which the conviction, plea or forfeiture was obtained and the disposition or sentence imposed as a result thereof;

A statement that the applicant is of such good character and reputation in the community, which character and reputation may be determined by previous arrest record, association with persons known to lack good moral character, open and notorious criminal sexual activity, or other acts of moral turpitude, or other conduct contrary to good morals;

The applicant shall submit fingerprints and a photograph of the applicant The Town Police shall confirm the information submitted;

An original New York State Department of Education massage license issued to the applicant by the State of New York.

§ 126-11 Issuance of massage therapist license.

Within 60 days of receipt of an application for a licensed massage therapist license, the Building Inspector shall notify the applicant that the application is granted, denied or held for further review. The period of further review shall not exceed an additional 30 days unless agreed to by the applicant. Upon conclusion of such additional review the Building Inspector shall advise the applicant in writing whether the application is granted or denied.

Every licensed massage therapist license issued pursuant to this chapter shall be issued for the balance of the calendar year and shall expire on December 31 of the same year, unless sooner suspended or revoked.

[Amended 3-16-2010 by L.L. No. 1-2010]

§ 126-12 Operating requirements.

Every portion of the massage establishment, including appliances and apparatus, shall be kept clean and operated in a sanitary condition.

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.

All employees, including licensed massage therapists, shall be clean and fully covered in clean clothing, excluding the arms and hands.

All massage establishments shall be provided with clean, laundered sheets and towels in sufficient quantity and shall be laundered after each use thereof and stored in a sanitary manner.

The sexual or genital area of patrons must be covered by sheets, cloths or undergarments when in the presence of an employee or certified massage therapist.

It shall be unlawful for any person, knowingly, in a massage establishment, to place his hand upon, or to touch with any part of his body, to fondle in any manner, or to massage, a sexual or genital area of any other person.

No licensed massage therapist, employee or operator shall perform, offer, or agree to perform any act which would require the touching of a patron's genital area.

All massage therapists licensed pursuant to this chapter shall display at all times while within the massage establishment Town-issued identification displaying that the massage therapist has been licensed under this chapter.

Oils, creams, lotions or other preparations used in administering massages shall be kept in clean, closed containers or cabinets and shall be dispensed in unit doses so that said bulk containers are not contaminated between clients.

Massage may be practiced only for the purposes of physical fitness, relaxation, or medical therapy. The practice of massage for any other purpose is prohibited.

§ 126-13 Out-call massage service and registration.

A licensed massage therapist may provide any of the services listed in this chapter only at a permanent residence or place of business, except a place of business which is in the business of providing temporary residence, that is, hotel, motel. No "out-call massage service" may be operated other than by a licensed massage therapist. All massages performed by an "out-call massage service" must be performed in the manner prescribed in this chapter, where applicable.

§ 126-14 Inspection of massage establishments.

[Amended 3-16-2010 by L.L. No. 1-2010]

The Building Inspector, Town Police, Code Enforcement Officer or his/her authorized designee shall, from time to time, and at least once a year, make an inspection of each massage establishment granted a license under the provision of this chapter for the purposes of determining that the provisions of this chapter are complied with. Such inspections shall be made at reasonable times and in a reasonable manner. It shall be unlawful for any licensee to fail to allow such inspection officer access to the premises or to hinder such officer in any manner.

§ 126-15 Identification card required.

[Amended 3-16-2010 by L.L. No. 1-2010]

The Building Inspector shall provide each licensed massage therapist granted a license with an identification card which shall contain a photograph of the certified massage therapist and the full name and permit number assigned to said certified massage therapist, which must be worn on the front of the outermost garment at all times during the hours of operation of any establishment granted a permit pursuant to this chapter. The identification card shall not be covered in any fashion or hidden.

§ 126-16 License renewal; licenses nontransferable.

[Amended 3-16-2010 by L.L. No. 1-2010]

Every previously licensed massage therapist who wishes to renew his/her license may submit a renewal request for that license on or before December 1 of the year the license is to expire. An annual background check may be conducted, with no fee or charge to the applicant. The applicant may be responsible for payment of the massage therapist license fee or any other related license.

No license may be transferable.

§ 126-17 Exemptions.

This chapter shall not apply to other units of government, hospitals, nursing homes, or medical professionals who in the furtherance of the practice of medicine perform massage as permitted under Town, state and/or federal law.

§ 126-18 Public nuisance.

Any building used as a massage establishment in violation of this chapter with the intentional knowing, reckless, or negligent permission of the owner thereof, or the agent of the owner managing the building, together with all fixtures and other property used in violation of this chapter are hereby declared to be a nuisance.

§ 126-19 Grandfather clause.

No massage therapist who has been conducting or practicing massage therapy, therapeutic massage, or operating a massage therapy clinic may continue to practice massage therapy or continue conducting a massage business without applying for a license under this chapter within 60 days of the effective date of this chapter. Licenses shall be renewed on an annual basis upon a showing that the massage therapy business is being conducted in the same fashion as when it originated and was approved by the Town.

§ 126-20 Penalty for the individual violators.

[Amended 4-9-2013 by L.L. No. 2-2013]

Every person, except those who are specifically exempted by this chapter, whether acting as an individual, operator, owner, employee of the owner, or whether acting as a mere helper for the owner, employee, or operator, or acting as a participant or working in any way, who gives massages or conducts a massage establishment without first obtaining a business permit and paying a massage establishment license fee to do so from the Town or shall violate any of the provisions of this chapter shall be guilty of a misdemeanor.

Any person found guilty of a violation of any provision of this chapter shall be punished by a fine of up to $2,500.

Any person found guilty of a second offense of any provision of this chapter within 18 months of the date of the first conviction shall be punished by a fine of not less than $2,500 and not more than $5,000.

Any person found guilty of a third offense of any provision of this chapter within 18 months of the date of the second conviction shall be punished by a fine of not less than $7,500 and not more than $10,000.

Any person found guilty of a fourth or subsequent offense of any provision of this chapter within 18 months of the date of the third conviction shall be punished by a fine of not less than $10,000 and not more than $15,000.

§ 126-21 Penalty for establishment violators.

[Amended 4-9-2013 by L.L. No. 2-2013]

Every establishment, except those which are specifically exempted by this chapter, where it is found a person gives massages or conducts a massage establishment without first obtaining a business permit and paying a massage establishment license fee to do so from the Town, or which shall violate any of the provisions of this chapter shall be guilty of a misdemeanor.

Any establishment found guilty of a violation of any provision of this chapter shall be punished by a fine of up to $2,500.

Any establishment found guilty of a second offense of any provision of this chapter within 18 months of the date of the first conviction shall be punished by a fine of not less than $2,500 and not more than $5,000.

Any establishment found guilty of a third offense of any provision of this chapter within 18 months of the date of the second conviction shall be punished by a fine of not less than $7,500 and not more than $10,000.

Any establishment found guilty of a fourth or subsequent offense of any provision of this chapter within 18 months of the date of the third conviction shall be punished by a fine of not less than $10,000 and not more than $15,000.

§ 126-22 Severability.

The phrases, clauses, sentences, paragraphs, and subsections of this chapter are severable, and if any phrase, clause, sentence, paragraph, or subsection of this chapter shall be declared unconstitutional or otherwise unlawful by the valid judgment, decree, injunction or order of a court of competent jurisdiction, such ruling shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and subsections of this chapter.