[2022-98 Amend Chapter 749 Massage Establishments Exhibit B.pdf]
CHAPTER 749
Massage Establishments
749.01 Definitions.
749.02 Exemptions
749.03 License and registration required.
749.04 Registration process and fee.
749.05 Registration and duty to update.
749.06 Requirements for massage establishments.
749.07 Prohibitions.
749.08 Inspections.
749.09 Administrative appeal.
749.99 Penalty.
749.01 DEFINITIONS.
The words, terms and phrases used in this chapter shall have the meaning assigned to
them in this section, except where the context clearly indicates a different meaning.
(a)
“Client” means a person (or customer) who receives a therapeutic massage treatment for
a fee or any consideration whatsoever.
(b)
“Director” means the Director of Public Safety or designee. The Director, and any
designee appointed by either the Director or the Mayor, shall be responsible for code
enforcement.
(c)
“Employee” means any person who is employed by, or renders any service at, a massage
establishment for compensation. “Employee” includes a contract employee, freelance
employee, temporary employee, or an independent contractor.
(d)
“Licensed” means a person who holds a current and valid license issued by the State
Medical Board of Ohio to practice “massage therapy” pursuant to and in accordance with
R.C. § 4731.15.
(e)
“Massage therapy” and/or “therapeutic massage treatment” means the treatment of
disorders of the human body by the manipulation of soft tissue through the systematic
external application of massage techniques as defined by R.C. 4731.04(c). “Massage
techniques” and/or “massage treatment” and/or “therapeutic massage treatment” means
and include touch, stroking, friction, vibration, percussion, kneading, stretching,
compression, and joint movements within the normal physiologic range of motion; and
the supplemental use of the external application of water, heat, cold, topical preparations,
and mechanical devices. Techniques also include modalities that maybe commonly
known by another name such as reflexology, reiki, or polarity, etc.
(f)
“Massage establishment” means any establishment having a fixed place of business
where any person, firm, association, or corporation engages in, or carries on, permits to,
advertises the availability of any activity related to or including the provision of a
therapeutic massage treatment.
(g)
“Registration Certificate” means a certificate of registration issued by the City of North
Olmsted to a massage establishment.
(h)
“Specified anatomical area,” “state of nudity,” and “state of semi-nudity” shall have the
meaning ascribed to them in Chapter 761 of the Codified Ordinances.
(i)
“Therapist” means a person who is licensed to provide a massage therapy.
EXHIBIT B
749.02 EXEMPTIONS
(a)
The requirements of this Chapter shall not apply to any establishment or person that
provides a massage as a portion of and incidental to services in accordance with a license issued
by any of the following:
(1) The Ohio State Cosmetology and Barber Board or its predecessors pursuant to R.C.
Chapter 4709 or 4713;
(2) The State of Ohio Board of Nursing pursuant to R.C. Chapter 4723;
(3) The Ohio Occupational Therapy, Physical Therapy and Athletic Trainers Board
pursuant to R.C. Chapter 4755;
(4) The Ohio State Chiropractic Board pursuant to R.C. Chapter 4734;
(5) The State Medical Board of Ohio pursuant to R.C. Chapters 4730 or 4762;
(6) The State Medical Board of Ohio pursuant to R.C. Chapter 4731 except those licensed
pursuant to R.C. § 4731.15 to practice “massage therapy.”
749.03 LICENSE AND REGISTRATION REQUIRED.
(a)
No person shall operate a massage establishment:
(1)
Without a registration certificate for a massage establishment;
(2)
Where a massage treatment is offered or performed by a person who is not so
registered herein and licensed by the State;
(3)
Without a zoning certificate and certificate of occupancy for the massage
establishment.
(b)
No person shall offer or perform a massage treatment:
(1)
Unless such person is registered herein and licensed by the State or exempt;
(2)
In a massage establishment that does not have a registration certificate.
749.04 REGISTRATION PROCESS AND FEE.
(a)
A person who wishes to obtain a registration certificate for a massage establishment shall
submit a registration application to the Director and pay a reasonable registration fee in
an amount set by the Director and determined to be sufficient to pay the cost of
administering this chapter.
(b)
The registration application shall be in a form designated by the Director and shall
include all the following:
(1)
The full legal name and current residential address of the applicant, or, for
corporate applicants, the company business address and the residential address of
the principal owner(s);
(2)
The address of the proposed massage establishment;
(3)
A list of services to be offered at the massage establishment;
(4)
The full name of any person or persons who will provide therapeutic massage
treatments at the massage establishment;
(5)
Copies of State licenses issued to and held by persons listed hereinabove and
sufficient information to identify the license for each therapist. “License” as used
herein is a license from the State Medical Board of Ohio to practice “massage
therapy” pursuant to and in accordance with R.C. § 4731.15.
(c)
The Director shall issue a registration certificate unless the Director finds:
(1)
The registration application is incomplete or contains inaccurate or fraudulent
information;
(2)
The license of a massage therapist cannot be verified as current, in good standing,
and valid by public records in the State of Ohio;
(3)
Within two years before the date the application is submitted, the applicant, or
any therapist listed on the registration application, was the applicant for a
registration certificate that was revoked or denied. Nothing herein prohibits the
Director from issuing a registration certificate for a previously-denied application
that has been substantially modified.
(4)
Both a zoning certificate and certificate of occupancy have not been issued for the
massage establishment.
(d)
The Director shall send, by First Class U.S. Mail addressed to the applicant, either a
registration certificate or a written statement that the application was denied and the
reason therefor (“Notice of Denial”).
(e)
Any person who has been denied a registration certificate may appeal such denial in
accordance with Section 749.09.
749.05 REGISTRATION AND DUTY TO UPDATE.
(a)
Each registration certificate shall be signed by the Director and shall contain the
following information:
(1)
The name of the applicant to whom the registration certificate is issued;
(2)
The name and address of the massage establishment;
(3)
The full name and State license number of each therapist identified in the
application;
(4)
The effective date of the registration certificate.
(b)
Each registration certificate shall be valid until revoked pursuant to this chapter or until
the applicant is no longer operating a message establishment at the location designated in
the registration application.
(c)
A person who operates a massage establishment shall notify the Director when a new
therapist begins working at the massage establishment. The notice shall be received by
the Director no more than fifteen days after the first day the therapist provides a massage
treatment in the massage establishment. The notice shall provide the full name and State
license number of each new therapist.
(d)
A registration certificate shall not be transferrable. If ownership or operation of a
massage establishment transfers, the registration certificate shall automatically expire.
749.06 REQUIREMENTS FOR MASSAGE ESTABLISHMENTS.
Every person who owns, operates, manages or supervises a massage establishment, or
who otherwise causes a massage establishment to be operated, shall document and demonstrate
all the following:
(a)
The registration certificate is displayed in a conspicuous location readily visible to a
person entering the massage establishment through a public entrance;
(b)
Compliance with all the following:
(1)
Applicable regulations issued by the State of Ohio, specifically a current and valid
license issued by the State Medical Board of Ohio to practice “massage therapy”
pursuant to and in accordance with R.C. § 4731.15.and Cuyahoga County Board
of Health;
(2)
Applicable provisions of R.C. §§ 4713.08, 4731.15, and 4734.10, as well as Ohio
Administrative Code including but not limited to 4731-1-03;
(3)
The Codified Ordinances of the City of North Olmsted;
(4)
Treatments provided in the massage establishment are provided only by licensed
massage therapists.
749.07 PROHIBITIONS.
(a)
No person who owns, operates, manages, or supervises the operation of a massage
establishment shall allow any employee or any therapist to appear in a public place at any
time, particularly while providing massage therapy, in any state of undress, nudity or
semi-nudity, to wear transparent clothing, or clothing that otherwise reveals a specified
anatomical area;
(b)
No person who owns, operates, manages, or supervises the operation of a massage
establishment shall do any of the following:
(1)
Advertise or offer massage treatments or a related service unless they have been
issued a registration certificate and are licensed to provide such massage
treatments;
(2)
Place, publish, distribute, or cause to be placed, published or distributed any
advertising material that is obscene in nature. Miller v. California, 413 U.S. 15,
24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope
v. Illinois, 481 U.S. 497, 500-01 (1987) (defining obscenity);
(3)
Advertise massage treatment services with the suggestion or promise of a sexual
service or activity.
(c)
Nothing in this chapter shall prohibit a massage therapist from providing a massage
treatment to a client who is in a state of undress or who reveals a specified anatomical
area provided that the massage therapist shall not engage in sexual misconduct as defined
in Ohio Administrative Code 4731-26-01(H).
749.08 INSPECTIONS.
(a)
Any person having jurisdiction to enforce the provisions of this chapter may enter the
public entrance of a massage establishment without notice during all hours of operation
for the purpose of verifying that a valid registration certificate is displayed in accordance
with this chapter.
(b)
In accordance with, and subject to, constitutional provisions governing searches, law
enforcement entities shall have the authority to enter all massage establishments within
the City during all hours of operation to conduct an inspection, to investigate or to
perform the duties imposed upon a law enforcement officer by this chapter. The law
enforcement officer shall first present credentials and request consent for entry to conduct
an inspection. If entry for inspection is refused, the law enforcement officer must obtain a
search warrant in accordance with R.C. § 2933.21.
(c)
Nothing in this Section shall be construed to prohibit law enforcement officers from
conducting criminal investigation of suspected criminal activities, including but not
limited utilization of surveillance, undercover and/or confidential informants in
accordance with law.
749.09 ADMINISTRATIVE APPEAL.
(a)
A person who has filed a completed registration application and has been denied a
registration certificate, or who has had a registration certificate revoked, may appeal that
denial or revocation within fifteen calendar days of the denial or revocation thereof by
filing a written statement with the Building and Zoning Board of Appeals (the Board).
For any appeal taken pursuant to this chapter, the date of mailing as indicted on the
Notice of Denial or revocation shall constitute the first day when calculating the time to
take an appeal. The written statement shall include the applicant's full name and contact
information (including mailing address, phone number, and e-mail addresses), a copy of
the denial or revocation notice from which an appeal is being taken, and shall state with
particularly the basis for such appeal, including a summary of all relevant facts and
circumstances.
(b)
The Board shall review the written statement, shall set a time and a place for an
administrative hearing, shall provide reasonable notice prior to such hearing, and shall
establish the reasonable procedures therefor. The Board shall determine whether to grant
or deny the registration certificate, or whether to sustain or reverse the order of
revocation, and shall issue a final determination in writing. Upon final administrative
order, an appeal may be taken by the applicant or the City of North Olmsted to the Court
of Common Pleas pursuant to Ohio Revised Code Chapter 2506.
749.99 PENALTY.
(a)
Whoever violates any provision of Section 749.03 or Section 749.05 shall be guilty of a
misdemeanor of the first degree.
(b)
Except as otherwise provided in division (a) of this section, whoever violates any
provision of this chapter is guilty of a misdemeanor of the fourth degree.
(c)
If the offender previously was convicted of any provision of this chapter within the past
three years, the offense is a misdemeanor of the first degree.
(d)
In addition to any penalty set forth in divisions (a) through (c) above, the Director may,
upon notice and hearing, revoke a registration certificate of a massage establishment for a
violation of any provision of this chapter.
(e)
In addition to such penalties, the Director may refer the matter to the Director of Law
who may seek injunctive relief in a Court of competent jurisdiction to restrain and
prohibit a violation of any provision of this chapter, particularly the operation of a
massage establishment without in registration certificate. In such case, the Court may
consider evidence of such violation as causing irreparable harm.
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[2022-98 Amend Chapter 749 Massage Establishments.pdf]
CITY OF NORTH OLMSTED
ORDINANCE NO. 2022 - 98
BY: Mayor Jones
AN ORDINANCE AMENDING CHAPTER 749 OF THE BUSINESS
REGULATIONS CODE OF THE CITY OF NORTH OLMSTED
ENTITLED “MASSAGE ESTABLISHMENTS”.
WHEREAS, The City of North Olmsted Business Regulation Code includes
Chapter 749 entitled “Massage Establishments”, administered by the Director of Public
Safety, and relates to uses and occupancy of commercial premises, as administered by the
Director of Economic and Community Development under North Olmsted Codified
Ordinance (“N.O.C.O”) §1119.03; and
WHEREAS, Chapter 749 regulates massage establishments and contains an
exemption for state licensed massage therapists and other health care providers licensed
by the State of Ohio, which licensing is required for zoning certification; and
WHEREAS, Chapter 749, as newly established, provides for authorization by the
Director of Public Safety to review registration applications and grant licensing, in
conjunction with zoning certification, and subject to inspection by Building officials; and
WHEREAS, it is accordingly the desire of this Council to amend Chapter 749 in
order to require registration of state licensed massage therapists and otherwise clarify the
application of codified standards upon heretofore exempt State licensed massage
establishments.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
OF NORTH OLMSTED, CUYAHOGA COUNTY, AND STATE OF OHIO:
SECTION 1: That Chapter 749 of the Business Regulations Code, which
presently reads as set forth in Exhibit A, be amended and as amended shall henceforth
read in its entirety as set forth in Exhibit B.
SECTION 2: That all ordinances, and parts of ordinances, inconsistent or in
conflict with this Ordinance, shall, to the extent of such inconsistency or conflict, be
repealed.
SECTION 3: That this Ordinance is hereby declared to be an emergency measure
immediately necessary for the preservation of the public health, safety and welfare, and
further for the reason that it is necessary that this Ordinance go into effect immediately in
order to halt unlawful activities associated with unlicensed massage providers; and
further provided it receives the affirmative vote of two-thirds of all members of Council,
it shall take effect and be in force immediately upon its passage and approval by the
Mayor.
2
PASSED: ________________________
First Reading: _______________
Second Reading: _______________
Third Reading: _______________
Committee: __________________
ATTEST:
_____________________________
__________________________
BEATRICE TAYLOR
LOUIS J. BROSSARD
Clerk of Council
President of Council
APPROVED: _____________________
APPROVED AS TO LEGAL FORM:
_______________________________
/s/ Michael R. Gareau, Jr._________
MAYOR NICOLE DAILEY JONES
MICHAEL R. GAREAU, JR.
Director of Law