[HISTORY: Adopted by the Town Board of the
Town of Clarkstown 12-5-2006 by L.L. No. 19-2006. Amendments noted
where applicable.]
For the purpose of this chapter, the following
definitions shall apply unless the context clearly indicates or requires
a different meaning:
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.
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.
The operator of a massage establishment.
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.
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.
An individual who may hold a limited permit for massage therapy
pursuant to the New York State Education Department requirements.
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.
Any individual, partnership, firm association, joint stock
company, corporation or combination of individuals of whatever form
or character.
Genitals, pubic area, anus or perineum of any person, or
the vulva or breasts of a female.
[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.
A.
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.
B.
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]
C.
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.
D.
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:
E.
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.
F.
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]
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.
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.
A.
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.
B.
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.
C.
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
D.
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.
A.
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.
B.
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.
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.
[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.
The application for a certified massage therapist
license shall supply the following information:
A.
Name and residence address;
B.
Date of birth;
C.
Social security number and driver's license number,
if any;
D.
Applicant's weight, height, color of hair and eyes;
E.
Written evidence that the applicant is at least 18
years of age;
F.
Business, occupation, or employment of the applicant
for the three years immediately preceding the date of application;
G.
The business where the applicant intends to work;
H.
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;
I.
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;
J.
The applicant shall submit fingerprints and a photograph
of the applicant The Town Police shall confirm the information submitted;
K.
An original New York State Department of Education
massage license issued to the applicant by the State of New York.
A.
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.
B.
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]
A.
Every portion of the massage establishment, including
appliances and apparatus, shall be kept clean and operated in a sanitary
condition.
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.
All employees, including licensed massage therapists,
shall be clean and fully covered in clean clothing, excluding the
arms and hands.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
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.
[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.
[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.
[Amended 3-16-2010 by L.L. No. 1-2010]
A.
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.
B.
No license may be transferable.
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.
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.
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.
[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.
A.
Any person found guilty of a violation of any provision
of this chapter shall be punished by a fine of up to $2,500.
B.
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.
C.
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.
D.
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.
[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.
A.
Any establishment found guilty of a violation of any
provision of this chapter shall be punished by a fine of up to $2,500.
B.
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.
C.
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.
D.
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.
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.
