Loading...
Ordinance 1974-09 ORDINANCE NO. 70/ - cr AN ORDINANCE REGULATING "MASSAGE ESTABLISHMENTS" ~ PROVIDING FOR DEFINITIONS~ PROVIDING FOR A LICENSING PROCEDURE~ PROVIDING FOR DISPLAY OF LICENSE~ PROVIDING FOR INVESTIGATION OF APPLICANT~ PROVIDING FOR APPLICANT TO FURNISH NAMES OF EMPLOYEES~ PROVIDING FOR REQUIREMENT OF MEDICAL CERTIFICATES~ PROVIDING FOR LICENSE FEE~ PROVIDING REFUSAL TO ISSUE OR RENEW LICENSE~ PROVIDING FOR REVOCATION OF LICENSE~ PROVIDING FOR APPEAL FROM REFUSAL TO GRANT OR RENEW FROM DECISION TO REVOKE OR SUSPEND LICENSE~ PROVIDING FOR INSPECTION OF MASSAGE ESTABLISHMENTS~ PROVIDING FOR EXAMITNATION OF EMPLOYEES~ PROVIDING FOR REQUIREMENT OF LIST OF EMPLOYEES~ PROVIDING THAT OPERATION IN RESIDENTIAL AREAS BE PROHIBITED~ PROVIDING CERTAIN SANITARY REQUIREMENTS~ PROVIDING THAT ISSUANCE OF A PERMIT CREATES NO VESTED RIGHTS~ PROVIDING FOR A PENALTY~ PROVIDING FOR A SAVINGS CLAUSE~ AND PROVIDING FOR AN EMERGENCY CLAUSE. 2 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: MASSAGE ESTABLISHMENTS Section 1. Definitions. For the purpose of this Ordinance the following words and phrases shall have the meaning respectively ascribed to them by this section: (a) "Chief of Police" means the Chief of Police of the City of Wylie, or his duly authorized representative. (b) Health Officer means the City Health Officer of the City of Wylie, or his duly authorized representative. (c) "Massage" means any process consisting of kneading, rubbing, or otherwise manipulating the skin of the body of a human being, either with the hand or by means of electrical instruments or apparatus, or other specific apparatus, but shall not include massage by duly licensed physicians, osteopaths, chiropractors, and registered physical therapists or registered nurses or licensed vocational nurses who treat only patients recommended by a licensed physician and who operate only under such physician's direction. The term "massage" shall not include massages authorized by the State of Texas in establishments licensed by the State of Texas in beauty shops and barber shops staffed by licensed barbers and beauticians. (d) "Massage Establishment means any building, room, place or establishment~ other than a regularly licensed hospital, where manipulated massage or manipulated exercises are practiced upon the human body by anyone not a duly licensed physician, osteopath, chiropractor or a registered nurse or licensed vocational nurse acting at the direction of a doctor whether with or without the use of mechanical, therapeutic or bathing devices, and shall include Turkish bathhouses. This term shall not include, however, duly licensed beauty parlors or barber shops or a place wherein registered physical therapists treat only patients recommended by a licensed physician 3 and operate only under such physician's direction. (e) II Masseur II is any person, of either the male or female sex, who shall administer a massage as such term is herein defined. Such term shall include also for the purposes of this Ordinance a Masseuse. (f) "Genitals" mean the external sexual organs. (g) "Parti tioned Area'.~ shall be defined as an area in which at least three sides are petitioned and said partitions shall begin eighteen (18") inches above the floor and reach no higher than sixty (60") inches above the floor. (h) "Private Cubicle" shall be defined as any area less than 400 square feet wherein two or more walls begin closer to the floor than eighteen (18") inches and extend above the floor more than sixty (60"0) inches. There shall be no doors or closing devices in the door- ways in the inside walls of areas where massages are performed. Any openings in said walls shall be left open and no closing devices shall be attached thereto. (i) "Mobile Home" shall be defined as a vehicle used or constructed to be used for living or sleeping purposes and designed for being conveyed upon the public streets and highways. Section 2. License - Application For License Required. It shall be unlawful for any person to operate a massage establishment or perform massage services without first having obtained a license therefor from the Chief of Police in accordance with the provisions of this Ordinance, or to operate a massage establishment or perform massage services after such license has been revoked, or during a period for which such license has been suspended. Such license shall be issued only upon the payment of the fee specified in Section 4 and upon the approval in writing of the Health Officer and of the Chief of Police and upon the issuance of a certificate of occupancy from the Building Inspector. Such license shall expire 4 on the 31st day of December of each year. Massage services shall not be conducted away from the premises approved for such use under this ordinance. Section 3. Same - Display. The license required by this Ordinance shall be posted and kept in some conspicuous place in the massage establishment. Section 4. Application - Permit or License Procedures. Any person desiring to obtain a license or permit to operate a massage establishment or to perform massage services or to act as a massage technician's aide, shall make application to the Chief of Police together with a fee which shall be used to defray, in part, the costs of investigation and report. Said fee shall be $500.00 for license and permit to operate a massage establishment and $50.00 for license and permit to perform massage services. Said fees shall be non-refundable. Said application shall contain the information required by this Ordinance. The Health Officer, or his representative, shall render a report as to compliance ~th all health and sanitary provisions of this Ordinance to the Chief of Police. The BUilding Inspector and the Fire Department shall inspect the premises proposed to be devoted to the massage establishment and shall make separate recommendations to the City, to the Chief of Police concerning compliance with foregoing provisions. The Chief of Police after receiving the aforementioned and described recommendations, shall grant a permit to the establishment if all requirements for a massage establishment described herein are met and shall issue a permit to all persons who have applied to perform massage services or to act as aides unless it appears that any such person has deliberately falsified the application or unless it appears that the record of such person reveals conviction of a felony or a crime involving moral turpitude. A permit to perform massage services does not authorize the operation of a massage establishment. Any person licensed to perform massage services who desires to operate a massage establishment must separately apply for a permit therefor. 5 Section 5. Application - Contents. Any applicant for a license or permit shall submit the following information: 1. The full name and present address of applicant~ the trade or business name and address of the massage establishment~ 2. The two (2) previous addresses immediately prior to the present address of applicant, and the dates of residence at each~ 3. Written statements of a least five (5) bona fide adult residents of the City of Wylie that the applicant is of good moral character~ 4. Written proof that the applicant is over the age of eighteen (18) years~ 5. Applicant's height, weight, color of eyes and hair~ 6. Two recent portrait photographs at least 2- x 2" taken within the last six months~ 7. Business, occupation, or employment history of the applicant for the three (3) years immediately preceding the date of the application~ 8. The business license history of the applicant~ whether such person, in previously operating in this or another 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 revocation~ 9. All convictions and the reasons therfor, except traffic violations~ 10. A certificate from a medical doctor stating that the applicant has, within thirty days immediately prior thereto, been examined and found to be free of any contagious or communicable disease and said examination shall be at the expense of the applicant~ 11. Such other identification and information as the Police Department may require in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application~ 6 12. Nothingcontained herein shall be construed to deny to the Police Department of the City of Wylie the right to take the fingerprints and additional photographs of the applicant, nor shall anything contained herein be construed to deny the right of said department to confirm the height and weight of bhe applicant~ 13. Furnish to the Health Officer the names and addresses of all employees of the massage establishment, and all such employees shall be required to secure from the Health Officer a medical certificate certifying that such employee or employees have been examined and that such examination discloses the fact that such person employed or to be employed by such establish- ment, is free from any infectious or communicable disease. The applicant shall furnish the name and addresses of each new employee to the Health Officer and such employee shall be required to secure from the Health Officer a medical certificate certifying that such employee has been examined and that such examination discloses the fact that such person is free from any infectious or communicable disease. Such medical certificate shall be renewed annually by the Health Officer but said Officer may require a medical examination whenever, in his judgment, it is necessary to determine whether or not an employee or owner is infected with a communicable disease. Any medical examination expense shall be borne by the applicant. Section 6. Same - Investiqation of Applicant. After an application has been made for issuance of an original license or permit or a renewal of an existing license or permit to operate a massage establishment as defined herein, or as an employee of such an establishment, the Chief of POlice, as the principal enforcement officer of this Ordinance, shall determine whether the applicant has been finally convicted in any court of theft, fornication, sodomy, procuring, pandering, keeping a bawdy house, keeping an assignation house, engaging in prostitution or engaging in assignation, or whether such establishment employs any person who has been finally convicted LD any court of theft, fornication, sodomy, procuring, pandering, keeping a bawdy house, keeping an assignation house, engaging in prostitution or engaging in assignation. Section 7. Grounds for Refusal to Issue or Renew a License or Permit. (a) A license or permit or renewal of a license or permit shall be denied if the applicant has: 1. Been convicted of a felony involving moral turpitude or misdemeanor inVOlVing in immoral conduct~ the record of conviction is conclusive evidence of the named felony or misdemeanor~ 7 2. Secured a license by fraud or deceit~ 3. Knowingly made false statements in an attempt to secure the massage license required by this act~ 4. Been found by the Chief of Police to be addicted to the use of any narcotic drug~ 5. Been finally convicted in any court of theft, fornication, sodomy, procuring, pandering, keeping a bawdy house, keeping an assignation house~ engaging in prostitution or engaging in assignation~ or to any applicant who employs in such establishment any person who has been finally convicted of theft, fornication, sodomy, procuring, pandering, keeping a bawdy house, keeping an assignation house, engaging in prostitution or engaging in prostitution or engaging in assignation. Section 8. Facilities Necessary. No permit ,or license to conduct a massage establishment shall be t/A/U 55 issued~an inspection by the City of Wylie reveals that the establish- ment complies with each of the fOllowing minimum requirements: 1. No massage establishment shall be operated in any mobile home, regardless of any alterations that have been made to the mobile home. 2. A recognizable and legible sign shall be posted at the main entrance identifying the establishment as a massage establish- ment. Said sign shall be in compliance with the Sign Regulations of the City of Wylie and shall at all times have the identifying name of the massage establishment printed on the sign face. 3. Minimum lighting shall be provided in accordance with the Southern Standard Building Code, and, in addition, at least one artifical light of not less than 100 watts shall be provided in each partitioned area where massage services are performed on patrons. 4. Minimum ventilation shall be provided in accordance with the Southern Standard Building Code. 5. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided. 6. Hot and cold running water shallLbe provided at all times. 7. Closed cabinets shall be provided which cabinets shall be utilized for the storage of clean linen. 8 8. No massage services shall be rendered in private cubicles, but may be rendered in partitioned areas wherein the partitions begin eighteen (18") inches above the floor and reach no higher than sixty (60") inches above the floor. In areas in excess of 400 square feet which are enclosed by walls where massages are administered, one observation device having an angle of view of at least thirty-five (350) degrees must be provided at ten (10~) foot intervals along each inner wall, and no less than five (51) feet above the floor and no higher than six (6') above the floor. 9~ Adequate bathing, dressing, locker, and toilet facilities shall be provided for patrons. A minimum of one tub or shower, one dressing room, one toilet and one wash basin shall be provided by every massage establishment. A minimum of one separate locker for each patron to be served, which locker shall be capable of being locked shall be provided by every massage establishment. 10. All walls, ceilings, floors, pools, showers, bath tubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments, and toilet rooms shall be thoroughly cleaned each day the business is in operation. Bath tubs shall be thoroughly cleaned after each use. 11. Clean and sanitary towels and linens shall be provided for each patron of the establishment. No common use of towels or linens shall be permitted. 12. Proof of compliance with all applicable prOV1S1ons of the ordinances of the City of Wylie shall be provided by each massage establishment. Section 9. Inspection of Massaqe Establishments~ Examination of Emplovees. (a) The Health Officer and Chief of Police shall be authorized to make or cause to be made inspections to determine the condition of any massage establishment in order to safe- guard the health, safety, and welfare of the public and to require the employees to submit to an examination by a licensed physician to determine whether employees or the massage establishment are infected with any infectious disease, and such examination shall be at the expense of the applicant, licensee or permittee. (b) If, in the opinion of the Health Officer or Chief of Police or their designated representatives, there is probable 9 cause to enter a massage establishment for the purpose of making inspections and examinations pursuant to this Ordinance, he shall request the owner or occupant thereof to grant permission for such entry, and if refused, he shall make application to a magistrate for a search warrant, showing said magistrate why such search warrant should be issued for the purpose herein. Section 10. List of Employees. The Manager or person in charge of a massage establishment shall keep a list of the names and addresses of all employees, both on duty and off duty, and such list shall be shown to all proper authorities of the Police and Health Officer upon request. Section 11. Records of Treatment. In order to minimize the spread of infectious or communicable disease, every person, association, firm, or corporation operating a massage establishment under a permit as herein provided shall keep a record of the date and hour of each treatment, the name and address of the patron, and the name of the technician administering such treatment. Such identi- fication shall be verified from personal identification papers of such patron. A current driverls license containing descriptive information consistent with the physical characteristics of such patron shall be deemed, for the purposes hereof, satisfactory personal identification in verification of the name and address of the patron. It shall be unlawful for any patron to give false identification as to name or address and it shall further be unlawful for the licensee or permittee or employees to knowingly permit a patron to give a false name or address. Such record shall only be used for the purpose of minimizing the spread of infectious or communicable diseases and shall only be available to the Health Officer or Chief of Police after the 10 City Manager or City Attorney has granted written approval of inspection of such record. The Chief of Police or Police Officers of the City of Wylie may examine the record at the same time a patron registers to determine if said patron gave proper identification. Any unauthorized disclosure or use of such information by any officer or employee of the City of Wylie shall constitute a misdemeanor, and such officer or employee shall be subject to the penalty provisions of this ordinance, in addition to any other penalties provided by law. Section 12. Operation in Residential Area Prohibited. Massage establishments shall only be located in accordance with the zoning ordinances of the City of Wylie. It shall be unlawful for a massage establishment to operate in any residential zone. Section 13. Issuance of License or Permit~ No Vested Riqhts. No license or permit shall be deemed to grant a vested or property right, but such license or permit shall remain subject to the terms and provisions of this Ordinance and subject to such future regulations as shall be promulgated by the city Council by ordinance and any investment made by an applicant or licensee shall be made subject to this ordinance. Section 14. Sale, Transfer or Chanqe of Name. Upon the sale or transfer of any interest in a massage establishment, including the sale of a controlling interest in a corporation or the changing of the trade or business name of the massage establishment, the permit and license shall be null and void. A new application shall be made by any person, firm, or entity designed to own or operate the massage establishment. A fee of Two Hundred Dollars shall be payable for each such application inVOlving sale, transfer of any interest in, or the name change of an existing massage establishment. All provisions of this ordinance shall apply to any person, firm, or entity applying for a massage establishment permit for premises previously used as such establishment. 11 Any such sale, transfer of any interest in, or the name change of an existing massage establishment or any application for an extension or expansion of the building or other place of business of the massage establishment, shall require inspection and shall require compliance with all sections of this ordinance. Section 15. Applicability of Requlations of Existinq Businesses. The provisions of this Ordinance shall be applicable to all persons in businesses described herein whether the herein described activities were established before or after the effective date of this ordinance. Section 16. Unlawful Activities. It shall be unlawful for any person who is required to be licensed by this ordinance to massage, or intentionally touch or cause to be touched the genitals of any person upon the premises of the massage establishments. Any violation of this provision by either the owner or employee shall be deemed grounds for the revocation of the permit granted hereunder. Section 17. Sanitary Requirements. 1. It shall be the duty of every person conducting or operating a massage establishment to keep the same at all times in a clean and sanitary condition. All instruments and mechanical, therapeutic, and bathing devices, or parts thereof, that come into contact with the human body, shall be sterilized"by a modern and approved method of sterilization before initial use, and any such instruments and devices, or parts thereof, after having been used upon one patron, shall be sterilized before being used upon another. All towels and linens furnished for use of one patron shall not be furnished for use of another until thoroughly laundered. 2. All masseurs shall wash their hands thoroughly before administering massage manipulations to each patron accommodated. 12 3. No person suffering from a communicable disease shall work or be emplmyed in a massage establishment. 4. No person shall be accommodated as a patron within a massage establishment when to the knowledge of the owner, peDson in control, or an employee, such person is suffering from a communicable disease. Section 18. Standards of Operation. Following are the standards for operation of any massage establishment. It shall be unlawful for any license holder, owner, operator or manager of a massage establishment to do or commit any of the following pDOhibited acts or fail to comply with the following standards, or knowingly permit any employee so to do. It shall further be unlawful for any employee or patron of a massage establishment to do or commit any of the following prohibited acts or fail to comply with the following standards, where herein imposed upon them~ 1. A masseur shall at all times while either (1) administering a massage or (2) in the presence of any patron, be clothed from the shoulders to the knees. 2. A patron shall, at all times during massage or while in the presence of a masseur, wear clothing over the genital areas. 3. A massage establishment, if open to patrons of both the male and female sex, shall be divided into separate dressing and massage areas for the separate use of male and female patrons, respectively. Such areas shall be divided by wall partitions not less than eight (8') feet in height, and patrons of one sex shall not be admitted to massage or dressing areas designated for the opposite sex, but such provision shall not be employed to circumvent the intent and purpose of Paragraph 4 below. 4. No massage services shall be rendered in private cubicles, but may be rendered in partitioned areas wherein the partitions begin eighteen (18") inches above the floor and reach no higher than sixty (60") inches above the floor. 13 5. No massage establishment shall be kept open for any massage purposes between the hours of 12:00 midnight and 6:00 AM. 6. No Massage establishment shall be operated as conducted in connection, wither directjy or indirectly, with any place used for living or sleeping quarters. Section 19. Public Notice and Posting of Services Performed And Charges Therefor. A licensee under this Ordinance shall cause at all times to be prominently and publicly posted, in writing and numbers of a size of not less than one (1") inch, a detailed list of the various massage procedures, treatment and services performed in said massage establishment and the respective charge or cost therefor. A copy of such list of services performed and the charges or cost thereof shall be furnished to the Chief of Police, at the time of application for license and therafter at the time of any change in such services or charges therefor, if any such change be made. Section 20. Grounds for Revocation and suspension of License or Permit. The Chief of Police shall revoke any license or permit issued under this ordinance should the holder of such license or permit or the owner, operator, manager or employee of any massage establishment in this City, do or commit any of the following acts or fail to comply with or meet any of the fOllowing requirements imposed by this Ordinance: 1. Upon final conviction in any court of theft, fornication, sodomy, procuring, pandering, keeping a bawdy house, keeping an assignation house, engaging in prostitution or engaging in assignation, or the employment of any person who has been convicted for any of the above offenses prior to employment, provided said employer shall have knowledge of said conviction. 2. Violation of any provision of this Ordinance. 3. Touching the genital areas of any patron. 4. Failure to furnish current medical certificates as required by this Ordinance. 14 5. Failure to maintain a correct patron registration ledger as required by this Ordinance. 6. Permitting a patron to give false registration information as required by this Ordinance. 7. Violation of the hours of operation as set forth in this Ordinance. 8. Prohibiting entrance to the Chief of Police or his designated representative or the Health Officer or his designated repre- sentative for the purpose of inspection of the licensed premises or the books or records required to be kept by this Ordinance. 9. Failure or refusal ~o furnish for inspection as required by this Ordinance the books or records so required. 10. Failure to register a patron as required by this Ordinance. 11. Failure to verify the information furnished by a patron at the time of his or her registration as required by this Ordinance. 12. The performance of any massage procedure, service or treatment or the asking or collecting of a charge for same, other than that posted, described and set forth as required by Section 19 of this Ordinance. 13. Violation of any of the sanitary requirements set forth in Section 17 of this Ordinance. 14. Failure to post services and the price thereof as required by Section 19 of this Ordinance. Section 21. Suspension - Period of Suspension. 1. A license or permit issued pursuant to this Ordinance shall be suspended for a period of not less than thirty (30) days nor more than ninety (90) days upon final conviction in any court of the holder of such license or permit for the operation of a massage establishment in violation of any statute of this state, or any provision of this Ordinance or other ordinance or code of the City. 15 2. Any license or permit issued pursuant to this Ordinance shall be suspended for a period of not less than thirty (30) days nor more than ninety (90) days upon final conviction in any court of any employee of such massage establishment of a crime of moral turpitude, a violation of this Ordinance or a code of the City. 3. Any license or permit issued pursuant to this Ordinance shall be suspended by the Chief of Police for a period of not less than thirty (30) days nor more than ninety (90) days should the holder of a license or permit under this Ordinance violate any section of this Ordinance. Section 22. License or Permit - Appeal from Refusal to Grant or Renew or from Decision to Revoke or Suspend. In the event the Chief of Police shall refuse to approve the issuance of an original license or the renewal of a license to any applicant, or revokes or suspends the license issued to any ~icense holder under this Ordinance, this action shall be final unless the license holder shall, within ten (10) days after the receipt of written notice of such action, file with the City Manager a written appeal. Both notices shall be sent via U. S. Mail, Certified, Return Receipt Requested. The City Manager shall, within ten (10) days after the appeal is filed, consider all the evidence in support of or against the action appealed, and render a decision either sustaining or reversing the action. If the City Manager sustains the action, the applicant or license hOilider may, within ten (10) days of that decision file a written appeal with the City Secretary to the City Council. Such written appeal shall set forth the specific grounds therefor. The City Council shall, within thirty (30) days, grant a hearing thereon to consider the action, at which hearing the City Council may make such investigation as it may see fit. The City Council shall have authority to sustain, reverse or modify the action appealed. Such decision of the City Council shall be final. Provided, however, the Chief of Police may order any permit suspended pending such hearing, and it shall be unlawful for any person to carry on the business of a massage technician or to operate as a 16 massage establishment or employee thereof depending upon the particular type of permit which has been suspended until the sus- pended permit has been reinstated by the City Council. Said written appeal to the City Council shall contain a statement fully stating the reasons why such suspended permit for a license should not be revoked and should said person fail to give said notice and written statement within said period of time, the permit or license shall be deemed revoked for sufficient cause. The notice of suspension of permit or license shall be served upon the holder thereof by delivering said notice to such person or by leaving such notice at the place of business or residence of the permit or license holder in the custody of a person of suitable age and dQscretion. In the event the permit holder can not be found, and the service of such notice can not be made in the manner herein provided, a copy of such notice shall be mailed, postage fully prepaid, addressed to the permit holder at his place of business or residence. If the address of said person or business is within the Suate of Texas, the ten (10) day appeal period to the City Council shall begin five (5) full days after said notice was placed postage fully prepaid in the United States Mail. Section 23. Penalty. That any person who violates any provisions of this ordinance shall be guilty of a separate offense for each day or portion thereof during which any such violation is committed, continued, or permitted and each offense shall be punishable by a fine not to exceed Two Hundred and No/IOO ($200.00) Dollars. Section 24. Severability Clause. If any section, paragraph, subdivision, clause, phrase or provision of this Ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this Ordinance as a whole or any part or provision thereof other than parts so decided to be invalid or unconstitutional. 17 Section 25. Emerqency. The fact that the present ordinances of the City of Wylie are insufficient to control massage establishments creates an urgency and an emergency for the preservation of the public health, safety and general welfare and requires that this ordinance shall take effect immediately from and after its passage and it is accordingly so ordained. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, this /~ day of SEP!FA?OF/< A. D., 1974. , .v~..e'~/ ~A Donald R. omas, Mayor ATTEST: