[HISTORY: Adopted by the City Commission
of the City of Royal Oak 9-30-1996 by Ord. No. 96-21; amended in its entirety
11-14-2011 by Ord. No. 2011-16. Subsequent amendments noted where
applicable.]
This chapter shall be known and may be cited
as the "Massage Establishment License and Regulation Ordinance."
For the purpose of the provisions of this chapter, the following
words and phrases shall be construed to have the meanings herein set
forth, unless it is apparent from the context that a different meaning
is intended:
All officers, owners, directors, shareholders, partners,
managers and members of a business.
Any person who renders any service in connection with the
operation of a massage establishment and receives compensation from
the operator of the establishment or a client.
The person or business entity to whom a license has been
issued to own or operate a massage establishment as defined herein.
The application of a system of structured touch, pressure,
movement, and holding to the soft tissue of the human body in which
the primary intent is to enhance or restore the health and well-being
of the client. Practice of massage includes complementary methods,
including the external application of water, heat, cold, lubrication,
salt scrubs, body wraps, or other topical preparations; and electromechanical
devices that mimic or enhance the actions possible by the hands. Practice
of massage does not include medical diagnosis; practice of physical
therapy; high-velocity, low-amplitude thrust to a joint; electrical
stimulation; application of ultrasound; or prescription of medicines.
Any business which engages in the practice of massage as
defined in this section, either at that location or at another location.
"Massage establishment" includes a health club, health spa, or any
physical fitness club or business that offers massage on occasion
or incidental to its principal operation.
Any person who, for any consideration whatsoever, engages
in the practice of massage as defined in this section.
The propensity on the part of the person to serve the public
in the licensed area in a fair, lawful, honest and open manner.
Any person who receives a massage under such circumstances
that it is reasonably expected that he or she will pay money or give
any other consideration therefor.
Any individual, partnership, firm, association, joint-stock
company, corporation, limited liability company or combination of
individuals of whatever form or character.
Genitals, pubic area, buttocks, anus, or perineum of any
person, or the vulva or breasts of a female.
A.
Business license required. No person shall engage in or carry out
the business of massage unless he has a valid massage establishment
license issued by the City of Royal Oak pursuant to the provisions
of this chapter for each and every separate office or place of business
conducted by such person.
B.
Massage therapist license required. No person shall engage in the
practice of massage unless he or she has a valid and subsisting massage
therapy license issued to him or her by the State of Michigan. This
requirement does not apply to an individual licensed by another state
from performing activities that are considered massage therapy if
those activities are within the scope of the individual's license.
C.
It shall be the responsibility of an owner, operator, manager, or
licensee of a massage establishment hereunder to insure that each
person employed or engaged as a massage therapist at the establishment
shall either have a valid massage therapist license issued by the
State of Michigan or be exempt from the state's licensing requirements.
A.
Every applicant for a license to maintain, operate or conduct a massage
establishment shall file a completed application under oath with the
City Clerk's office upon a form provided by the City of Royal
Oak and pay a nonrefundable application investigation fee in an amount
set by resolution of the City Commission. The application shall contain
the following information:
(1)
A definition and description of all services to be provided, including
any other businesses conducted on the premises.
(2)
All locations, mailing addresses and telephone numbers utilized by
the business.
(3)
The name and residence address of each applicant and manager of the
applicant.
(a)
If the applicant is a corporation or a limited liability company,
the names and residence addresses of each of the officers, directors
and members of the business and of each stockholder owning more than
10% of the stock of the business, its address (if different from the
address of the massage establishment), and the name and address of
a resident agent in Oakland County, Michigan. The applicant shall
also provide documentation that the business is in good standing in
the state in which it was formed.
(b)
If the applicant is a partnership, the name and residence address
of each of the partners and the partnership itself (if different from
the address of the massage establishment), and the name and address
of a resident agent in Oakland County, Michigan.
(4)
(a)
Previous addresses for the last 10 years.
(b)
Height, weight, color of eyes and hair, and sex.
(c)
Social Security number, driver's license number, if any,
and date of birth.
(d)
One portrait photograph at least two inches by two inches.
(e)
Business, occupation, or employment for the 10 years immediately
preceding the date of application, including the name, address and
telephone number of any and all employers.
(f)
The massage or similar business history; whether such person,
in previously operating in this or another city or state, has had
a business license revoked or suspended or denied, the reason therefor,
and the business activity or occupation prior to and subsequent to
such action of suspension, revocation, or denial.
(g)
The name and address of any other massage business or establishment
in which the person owns stock or has any financial interest.
(h)
All criminal convictions other than misdemeanor traffic violations,
including the dates of convictions, nature of the crime and place
convicted.
(i)
The name and address of any massage business or other establishment
owned, managed or operated wherein the business or profession of massage
is carried on.
(j)
Authorization for the City, 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.
(5)
The name and address of each massage therapist who is or will be
employed in said establishment.
(6)
A description of any other business to be operated on the same premises
or on adjoining premises owned or controlled by the applicant.
B.
All information required by this section shall be provided at the
applicant's expense. Upon completion of the above provided form
and the furnishing of all the foregoing information, the City of Royal
Oak shall accept the application for the necessary investigations.
C.
Massage establishment licenses shall be renewed annually.
D.
The holder of a massage establishment license shall notify the City
of Royal Oak of each change in any of the data required to be furnished
by this section within 10 days after such change occurs.
Any applicant for a massage establishment license pursuant to
this chapter shall present to the City Clerk's office an application
in duplicate containing the aforementioned and described information.
A.
Investigation. Upon receipt of such application, the City Clerk shall
retain one copy and refer one copy as follows:
(1)
To the Chief of Police or his or her designated representative, who
shall investigate and determine whether the person making application
for such license is of suitable character to conduct or maintain such
a business in the City of Royal Oak. The Chief of Police or his or
her designated representative shall forward to the City Clerk the
results of such investigation along with a recommendation concerning
whether or not the license should be granted.
(a)
In making his or her determination, the Chief of Police shall
consider:
[1]
Penal history. All applicant's convictions in the preceding
10 years, other than traffic violations, the reasons therefor, and
the demeanor of the applicant subsequent to his or her release.
[2]
License history. The license history of the applicant and his
or her employees; whether such person, while previously operating
in this City or state or in another state under a license, has had
such license denied, revoked or suspended; the reasons therefor; and
the demeanor of the applicant subsequent to such action.
[3]
Business history. The history of the business, the manner in
which the business is conducted, and the conduct of all employees
in providing services to the public.
[4]
Other information. Any other information and documentation which
he or she considers relevant to make a determination as to whether
the applicant is of suitable character.
(b)
The Chief of Police or his or her designated representative
shall complete his or her investigation and determination within 45
days of being provided with a completed application.
(c)
If an applicant is found to be unqualified for a license because
of lack of suitable character, or similar criteria, the applicant
shall be furnished by the City Clerk with a statement containing information
as to the basis for this determination.
B.
In the case of a massage establishment license application, if the
investigation by the Chief of Police or his or her designated representative
does not evidence a lack of suitable character, the City Clerk shall
refer the application to the Chief Building Inspector, Fire Chief,
or their designated representatives, who shall cause a thorough inspection
of the premises to be made, if applicable, to ensure that all pertinent
provisions of state law and local ordinances, including the applicable
plumbing, heating, electrical and zoning codes, are being complied
with. The results of such inspections shall be returned to the City
Clerk within 30 days of the date the application was referred.
C.
If an applicant is found to be unqualified for a license because
of lack of suitable character, or similar criteria, the applicant
shall be furnished by the City Clerk with a statement containing information
as to the basis for this determination.
Application to renew a license to operate a massage establishment shall be filed at least 45 days prior to the date of expiration. Such renewal shall be annual and shall be accompanied by the annual fee to be set by City Commission resolution. Procedures for review of a renewal application shall be in accordance with Chapter 425, Article II, General Licensing, as amended, and this chapter.
A license requested may be refused, and any license issued may
be suspended, revoked, or not renewed for cause. The term "cause"
as used in this chapter shall include the doing or omitting of any
act, or permitting any condition to exist for which a license is issued,
or upon any premises used in connection therewith, which act, omission
or condition is contrary to the health, safety and welfare of the
public, is unlawful, irregular or fraudulent in nature, is unauthorized
or beyond the scope of the license issued, or is forbidden by this
chapter or any applicable law. "Cause" shall include, but not be limited
to:
A.
A determination of lack of suitable character, or a failure of the
proposed licensed premises to meet applicable codes and ordinances.
B.
Fraud or material misrepresentation in the application for a license.
C.
Fraud or material misrepresentation in the operation of the licensed
business.
D.
Any material violation of this chapter or of the regulations authorized
herein.
E.
Any violation of federal or state law or local ordinance which creates
a risk to the health, safety or welfare of the community, or brings
into question whether the licensee is of suitable character to operate
the business.
F.
Conducting the business in an unlawful manner or in such manner as
to constitute a maintenance of a nuisance upon or in connection with
the licensed premises. For purposes of this chapter, "nuisance" shall
be given the normal and customary meaning, and shall include, but
not be limited to, the following:
(1)
Existing violations of building, electrical, mechanical, plumbing,
zoning, health, fire or other applicable regulatory codes.
(2)
A pattern or practice of patron conduct which is in violation of
the law and/or interferes with the health, safety and welfare of the
residential or commercial properties in the area.
(3)
A pattern or practice of employee conduct which is in violation of
any state or federal law, local ordinance, or this chapter.
(4)
Failure to maintain the grounds and exterior of the licensed premises,
including litter, debris or refuse blowing or being deposited upon
adjoining properties.
G.
Failure of the licensee to pay personal property taxes, other City
obligations, and real property taxes by February 14 of each year arising
from the use and occupancy of the property. A licensee who does not
own the real property is not responsible for the payment of the real
property taxes unless the lease requires such payment.
H.
Any violation of this chapter.
A.
Each establishment licensed pursuant to this chapter shall be operated
and maintained in accordance with all applicable laws and regulations
of the City of Royal Oak and the State of Michigan. Upon any violation
of this chapter or the violation of any other applicable ordinance,
after notice and hearing, the City Commission may revoke or suspend
such license.
B.
The City Commission shall revoke a massage establishment license
if the State of Michigan suspends or revokes the massage therapist
licenses of three or more of the establishment's employees within
a twelve-month period.
Every license required under this chapter shall be displayed
in a prominent place on the premises.
The licensee or the person designated by the licensee of a massage
establishment shall maintain a register of all persons employed or
engaged as massage therapists. Included in the register will be a
copy of each massage therapist's state license. Such register
shall be available at the massage establishment for inspection by
representatives of the City of Royal Oak and/or county or state health
departments during regular business hours.
A license to operate a massage establishment shall not be issued
unless inspectors of the City of Royal Oak reveal that the establishment
complies with each of the following minimum requirements:
A.
All provisions of all applicable City building, plumbing, fire, electrical
and health codes.
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 in the reception
area in a location available to all prospective customers.
C.
No massage shall be performed in a private room which is completely
closed off to the view of other persons nor fitted with a door capable
of being locked or barred. Reasonable measures may be used to offer
privacy to patrons such as partitions, walls, curtains and the like.
D.
All employees, including massage therapists and other employees attending
the patrons, shall be clean and wear clean uniforms covering the torso.
Such uniforms shall be nontransparent and of washable material and
shall be kept in a clean condition. Such clothing shall cover the
person's pubic area, perineum, buttocks, natal cleft and the
entire chest to four inches below the collarbone, and legs not exposed
more than two inches above the knees.
E.
All massage establishments shall be provided with clean laundered
sheets and towels in sufficient quantity, and they shall be laundered
after each use thereof and stored in a sanitary manner.
F.
No massage establishment granted a license under the provisions of
this chapter shall place, publish, or distribute or cause to be placed,
published, or distributed any advertisement, picture, or statement
which is known or through the exercise of reasonable care should be
known to be false, deceptive or misleading in order to induce any
person to purchase or utilize any massage services.
No person shall permit any person under the age of 18 years
to come or remain on the premises of any massage establishment as
a massage therapist, employee, or patron.
No person shall sell, give, dispense, provide or keep, or cause
to be sold, given, dispensed, provided or kept, any alcoholic beverage
on the premises of any massage business.
No massage establishment shall be kept open between the hours
of 2:00 a.m. and 8:00 a.m.
No person shall employ a person as a massage therapist unless
said employee has a current and valid massage therapist license from
the State of Michigan or is exempt from the state's licensing
requirements.
The Chief of Police or other authorized inspectors from the
City of Royal Oak shall at reasonable times during business hours
make inspection of each massage establishment for the purposes of
determining that the provisions of this chapter are fully complied
with.
A.
It shall be unlawful for any person in a massage establishment to
touch, fondle or massage the sexual or genital parts of another person,
or any portion thereof, for purposes of sexual arousal or gratification.
B.
It shall be unlawful for any person in a massage establishment to
touch, fondle or massage his or her sexual or genital parts, or any
portion thereof, for purposes of sexual arousal or gratification of
any other person.
C.
It shall be unlawful for any person in a massage establishment to
expose his or her sexual or genital parts, or any portion thereof,
for purposes of sexual arousal or gratification of any other person.
D.
It shall be unlawful for any person in a massage establishment to
expose his or her sexual or genital parts, or any portion thereof,
to any other person for purposes of his or her own sexual gratification.
E.
It shall be unlawful for any employee, while in the presence of any
other person in a massage establishment, to fail to conceal the sexual
or genital parts of his or her body with a fully opaque covering.
F.
It shall be unlawful for any massage service to be carried on within
any cubicle, room, booth, or any area within a massage establishment
which is fitted with a door capable of being locked.
G.
It shall be unlawful for any person owning, operating or managing
a massage establishment to permit any agent, employee, or any other
person under his control or supervision to perform any acts prohibited
in this section.
A massage establishment shall be located as provided by Chapter 770, Zoning, of the Code of the City of Royal Oak.
Upon sale, transfer or relocation of a massage establishment,
the license therefor shall be null and void unless approved as provided
by this chapter. It shall be the duty of all owners or licensees having
knowledge of the sale, transfer or relocation of a massage establishment
to immediately report such sale, transfer or relocation to the City
Clerk's office. The failure to do so shall result in an immediate
suspension of all business.
No person granted a license pursuant to this chapter shall operate
the massage establishment under a name not specified in their license,
nor shall they conduct business under any designation or location
not specified in their license.
No license shall be transferable except with the consent of
the Royal Oak City Commission. An application for such transfer shall
be in writing and shall be accompanied by fees provided by City Commission
resolution. The written application for such transfer shall contain
the same information as requested herein for application for the license.
Transfer shall include the sale, or other transfer, of more than 10%
of the stock of a corporation, or interest of 10% in any other business
entity.
Any person, except those who are specifically exempted by this
chapter, whether acting as an individual, owner, employee of the owner,
operator or employee of the operator, or whether acting as a mere
agent or independent contractor for the owner, employee or operator,
or acting as a participant or worker in any way, directly or indirectly,
who gives massages or operates a massage establishment or any service
defined in this chapter without first obtaining a license and paying
a fee to do so from the City of Royal Oak or who shall violate any
provisions of this chapter shall be deemed guilty of a misdemeanor
upon conviction and shall be punished by imposition of a fine not
to exceed $500 and/or by imprisonment for a period not to exceed 90
days within the discretion of the court. Each day that a violation
is permitted to exist shall constitute a separate offense.
