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Town Board to introduce legislation regulating massage parlors on Tuesday, 1/20/15
Release Date: January 19, 2015

The Greenburgh Town Board will introduce legislation to regulate massage parlors at a special meeting of the Town Board on Tuesday at 11 AM.

The Town of Greenburgh finds it necessary to protect the public (i) from unlicensed establishments that perform massages on unsuspecting persons, (ii) from establishments operating under the guise of being a massage establishment, when actually engaging in illegal activities, and subjecting the public to exposure of unclean, unhealthy and possibly contaminated conditions, and (iii) from sex trafficking in persons and commercial sexual exploitation. This proposed legislation was drafted by Bob Bernstein, who chairs the Edgemont Community Council. The proposed legislation has the support of the Edgemont Community Council. A public hearing has been scheduled for Wednesday, February 11th at 7:30 PM at Greenburgh Town Hall.  A thank you to Bob, the ECC, other community members who have been working hard to address this quality of life matter.

PAUL FEINER

 

 

  TOWN OF GREENBURGH
TOWN CLERK’S OFFICE
177 Hillside Avenue, Greenburgh, NY 10607
Tel: 914-993-1500 Fax: 914-993-1626
Email:
 townclerk@greenburghny.com
                          

Judith A. Beville
    Town Clerk

 
Agenda for Special Meeting of the Greenburgh Town Board
Tuesday, January 20, 2015, 11:00AM
 
             
ROLL CALL:   Town Clerk Judith Beville
 
 
 
TOWN BOARD – 993-1544
 
TB 1 - 01/20/15

    TOWN of GREENBURGH

 

Local Law No.        /2015

 

A local law to amend the Code of the Town of Greenburgh, pursuant to New York State Constitution Article IX and New York Municipal Home Rule Law §10 creating a new Chapter 375, entitled “MASSAGE ESTABLISHMENTS” in the Code of the Town of Greenburgh regulating massage establishments in the Town pursuant to NYS Constitution Article IX, and the New York Municipal Home Rule Law § 10. 

 

BE IT ENACTED by the Town Board of the Town of Greenburgh:

 

§ 1.  Enactment of Chapter 375 entitled, “MASSAGE ESTABLISHMENTS”

§ 375-1. Legislative Intent. Purpose.

§ 375-2. Authority.

§ 375-3. Definitions.

§ 375-4. Special Permit Required.

§ 375-5. Applicability.

§ 375-6. License and Fee Required.

§ 375-7. Application for a License.

§ 375-8. Parties Responsible.

§ 375-9. Operational Requirements.

§ 375-10. Exemptions.

§ 375-11. Registration and Compliance of Existing Massage Establishments.

§ 375-12. Enforcement, Remedies and Penalties.

§ 375-13.  Emergency Provisions

§ 375-14. Conflicts, Severability.

§ 375-15. Supersession.

§ 375-15. Effective Date.

Chapter 375 entitled, “MASSAGE ESTABLISHMENTS” is hereby established as follows:

Section 1. Legislative intent. Purpose

The Town of Greenburgh finds it necessary to protect the public (i) from unlicensed establishments that perform massages on unsuspecting persons, (ii) from establishments operating under the guise of being a massage establishment, when actually engaging in illegal activities, and subjecting the public to exposure of unclean, unhealthy and possibly contaminated conditions, and (iii) from sex trafficking in persons and commercial sexual exploitation. These illegal activities have a deleterious effect on the public health, safety and welfare of the Town, its residents and the public at large. It is, therefore, the intent of the Town to regulate establishments that perform massages and to eliminate those businesses which jeopardize the public health, safety and welfare. 

Section 2.  Authority

This Local Law is adopted under the authority of New York Town Law Section 130(11).  Nothing herein is intended to preempt the authority of the State of New York to regulate the professional licensing and professional conduct of massage therapy under the State Education Law § 7800 et seq. 

Section 3.  Definitions

As used in this Chapter, the following terms shall have the respective meanings ascribed to them:

Massage

Any method of pressure on, or friction again, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the body, flesh or musculature with the hands or with the aid of any mechanical electrical apparatus or appliance, with or without such supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, lotions, ointments, or other similar preparations, for therapeutic, rehabilitative or relaxation purposes.

Massage Establishment

A fixed place of business where one or more persons engages in or carries on, or permits to be engaged in or carried on, the practice of massage.  A business which provides massage services of any kind, in whole or in part, excluding those identified in Section 10 below as exempt.

Massage Practitioner

Any individual who engages in the practice of massage.

Permittee

The owner, proprietor, manager, or operator of a massage establishment, outcall massage service, or solo practitioner massage establishment. 

Person

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

Recognized School for Massage

A school or institute of massage therapy with a program registered by the Department of Education of the State of New York, or its substantial equivalent in both subject matter and extent of training, provided that the program in such school or institute shall consist of classroom instruction of a total of not less than 500 hours in subjects satisfactory to the Department of Education and upon completion requires passage of an examination satisfactory to the State Board of Massage Therapy and  in accordance with the Commissioner’s regulations.

Town

The unincorporated areas of the Town of Greenburgh

Section 4.  Special Permit Required

A.     No massage establishment may open, operate, exist or be occupied without first obtaining a special use permit after a public hearing from the Town Board. A property owner or landlord shall not permit a tenant or subtenant to open or operate a massage establishment within the Town unless a special permit has been obtained for such massage establishment.

B.     The specific “use” known as “massage establishment” shall be added to each and every section of Chapter 285 of the Town Code (the “Zoning Law”) which identifies and lists specific uses requiring a special permit in all non-residential zoning districts and all provisions of Chapter 285 otherwise applicable to the granting of special permits by the town board shall be applicable here unless otherwise set forth herein in this Chapter.

C.     The provisions of Chapter 285-42 of the Town Code concerning nonconforming uses in existence at the time of the adoption of this local law shall not apply to massage establishments as defined hereunder; hence all massage establishments covered under this chapter and in existence at the time of its enactment shall be required to obtain special permits (as well as licenses).    

D.     Upon the closing of the public hearing and subject to compliance with the Operational Requirements set forth below in Section 10 hereof, within thirty (30) working days or at the next available meeting, whichever is sooner, the Town Board shall take one (1) of the following actions:

1.     Reject the application as incomplete; or

2.     Approve the issuance of the permit; or

3.     Deny the permit request.

In any case, the written findings to support the action taken shall be provided to the applicant.

Section 5.  Applicability

Subject to Section 10 hereof, this local law is applicable to all massage establishments in the unincorporated areas of the Town of Greenburgh, including those now existing and those that may seek to open in the future.

Section 6.  License and fee required

A.     As a condition for obtaining the special permit required in Section 4 above, no massage establishment may open, operate, exist or be occupied within the Town, unless an annual license shall first have been obtained for such establishment from, and a fee paid to, the Town Clerk, in accordance with the application procedures set forth under Section 7 hereunder.  A property owner or landlord shall not permit a tenant or subtenant to open or operate a massage establishment within the Town unless a license has been obtained from the Town Clerk after approval by the Town Board.  The owner of the building where the license is proposed to be located shall be a co-applicant on the License application. The fee for such license, which may be amended from time to time by resolution of the Town Board, shall be $500.  Upon change in ownership or change in operation of the massage establishment a new license shall be required.

B.     The procedures for obtaining a massage establishment license shall be those set forth in Section 7 below.  The applicant may present any evidence relevant to the denial. The decision of the Town Board upon such hearing shall be a final appealable order within the Town.

 

Section 7.   Application for License

 

A.     Any person desiring to procure a license to operate a massage establishment shall make application therefor to the Town Clerk on the form provided. Such form shall contain, but shall not be limited to, the following information:

 

1)     Name, address, date of birth and social security number of applicant.

2)     Whether applicant is an individual, partnership, corporation or other association.

3)     If a partnership, the names, addresses, dates of birth and social security numbers of all persons having an interest in the partnership.

4)     If a corporation, the names, addresses and dates of birth and social security numbers of all officers, directors and managers.

5)     If a corporation, the name of each stockholder having 10% or more of the total outstanding shares of any class of stock. There shall also be given the number of shares held by the stockholder and his percentage of the total outstanding shares of stock.

6)     If any of the persons named in Subsection A(1)(3)(4)(5) or (16) is a citizen of a country other than the United States, state the names and country of citizenship.

7)     State how long each applicant, member of partnership or officer of corporation has been a resident of the Town of Greenburgh, and place of previous employment.

8)     State whether any person mentioned in Subsection A(1)(3)(4)(5) and (16) has been convicted of a felony or misdemeanor and, if so, give full particulars.

9)     State whether any person mentioned in Subsection A(1)(3)(4) and (16) has been engaged individually as an operator or manager of a massage establishment or similar business within the last five years and, if so, give the name of such business, its address and the length of time such person operated such business.

10)      State whether any person mentioned in Subsection A(1)(3)(4) and (16) has ever had a previous massage establishment or similar license revoked or suspended and whether such person has been convicted of operating or managing such a business without a license and, if so, give full particulars.

11)      State the name of the massage establishment under which the applicant will operate and the location.

12)     Describe the nature of the massage services to be provided.

13)     State the maximum number of private rooms to be utilized by massage practitioners, and the number of entrances and exits to the massage establishment itself.

14)     State whether any part of the premises to be used will be used for any purpose other than the providing of massage services.

15)      Affix to the application two copies of a scale drawing showing the dimensions of all rooms to be used for massage services and the locations therein of all massage tables.

16)     Name, address, date of birth and social security number of each and every manager of the premises.

17)     In addition to the foregoing, applicant shall supply any and all relevant information concerning its application to operate a massage establishment when requested to do so by authorized officials of the Town, including but not limited to and as applicable certified copies of partnership agreements, certificates of incorporation, proof of ownership, financial records, income tax returns, acquisition agreements, payroll records and the like.

 

B.     Said application shall be signed and sworn to, before a notary public or other officer authorized to administer an oath, by all persons coming under Section A(1), (3) and (4).

C.     All persons described in Section A(1), (3) and (4) shall be fingerprinted before their application for a massage establishment  license is submitted. An application shall be deemed incomplete and be automatically denied if any of the persons enumerated in said subsections have not submitted their fingerprints with said application. Fingerprints shall be submitted upon the form or forms adopted by the Town Board.

D.     Said application shall be referred to the Chief of Police, the Fire Marshal and the Building Inspector for proper investigation of the applicant and the premises. As part of such investigation, the Chief of Police, the Fire Marshal and the Building Inspector shall determine whether such applicant and premises conform to the requirements of this chapter and all laws and regulations of the State of New York and the Town of Greenburgh.   At the conclusion of such investigation, the Chief of Police, the Fire Marshal and the Building Inspector shall each render a written report to the Town Clerk with their respective recommendation as to whether or not such application should be granted. The Chief of Police, in making such recommendation, shall investigate the applicant's character and conduct as a law-abiding person and shall consider past operations, if any, convictions of felonies and crimes involving moral turpitude.

E.     Within 30 days after the receipt of the reports and recommendations of the Chief of Police, the Fire Marshal and the Building Inspector, the Town Clerk shall determine whether or not to grant such application. However, in no event may the Town Clerk grant such massage establishment license if:

1)     The Chief of Police, the Fire Marshal or the Building Inspector recommends that such license not be issued.

2)     The applicant or the premises does not conform to all requirements of this chapter and all laws and regulations of the State of New York and the Town of Greenburgh.

3)     In the opinion of the Town Clerk, the applicant shall be undesirable or incapable of properly conducting a massage establishment.

4)     Any person having an interest in said premises has been convicted of a misdemeanor or a felony which, in the judgment of the Town Cl;erk, renders the applicant unfit or undesirable to conduct a massage establishment.

5)     The applicant or, if a corporation, the holders of a majority of its capital stock and any persons having an interest in such business have been convicted of violating any laws or ordinances relating to public morality or decency or to the sale of intoxicating liquor within five years preceding the date of such application.

 

F.     If an application is denied by the Town Clerk, notice shall be given to the applicant within 10 days, whereupon the applicant may appeal such denial within 30 days to the Town Board. If the applicant appeals such a denial by giving notice thereof in accordance with this subsection, the applicant must be prepared to go to a hearing on the appeal within 30 days of the giving of the notice of appeal, and, if applicant delays the hearing on the appeal beyond such thirty-day period, the provisions of Subsection Kof this section shall no longer be applicable, and all massage activities shall cease forthwith.

G.     The Town Board shall be required to hold a public hearing upon every appeal from the denial of a massage establishment license within a reasonable time. All parties shall be given reasonable notice of such hearing, which notice shall include a statement of the time, place and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing is to be held; a reference to the particular sections of the statutes and rules involved, where possible; and a short and plain statement of matters asserted. Upon application of any party, a more definite and detailed statement shall be furnished whenever the Town Board finds that the statement is not sufficiently definite or not sufficiently detailed. The finding of the Town Board as to the sufficiency of definiteness or detail of the statement or its failure or refusal to furnish a more definite or detailed statement shall not be subject to judicial review. Any statement furnished shall be deemed, in all respects, to be a part of the notice of hearing.

H.     At such hearing, all parties shall be given an opportunity to present written argument on issues of law and an opportunity to present evidence and such argument on issues of fact; provided, however, that nothing contained herein shall be construed to prohibit the Town Board from allowing parties to present oral argument within a reasonable time. In fixing the time and place for hearings and oral argument, due regard shall be had for the convenience of the parties.

I.     Unless precluded by statute, disposition may be made of any hearing by stipulation, agreed settlement, consent order, default or other informal method.

J.     At any hearing held pursuant to this section, the applicant, as well as any other interested parties, including any resident of the Town of Greenburgh, may state his views. After the conclusion of said hearing and within a period of 30 days, the Town Board shall be required to find whether its determination should be upheld or whether the Town Board should, in the exercise of its discretion, direct the issuance of such massage establishment license.

K.     When an applicant has made timely and sufficient application for a new license, with reference to any massage activity of a continuing nature for which such applicant had been issued a massage establishment license in the previous year, the existing license shall not expire until the application has been finally determined by the Town Board and, in the case of an application denied, until the appeal, if any, from such denial has been determined and a decision rendered by the Town Board after public hearing thereon.

L.     Anything contained in Subsection K hereof to the contrary notwithstanding, if the recommendations of any one of the officials described in Subsection D of this section contain findings that the public health, safety and welfare imperatively require emergency action and the termination of all massage establishment activities pending such action, the Town Board shall incorporate such findings in an order summarily suspending the license effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

M.     In the event that the Town Board determines to grant an application for a massage establishment license, the Town Board may impose such terms and conditions on said license so as to effectuate the purposes of this chapter. If the applicant is aggrieved by such terms and conditions, the applicant may appeal the determination of the Town Board within 30 days of such determination. The procedure for such appeal shall be as set forth in Section G above.

 

Section 8.  Parties responsible.

The tenant, subtenant, and owner of a building and the permittee shall be required to comply with the regulations set forth in in this Chapter.  The owner of the building or the permittee shall prohibit any tenant, subtenant, or other person from operating in violation of this Chapter.

Section 9.  Operational Requirements

The following regulations shall be applicable to all massage establishments and massage activities.

A.     The hours of operation shall be limited to 8 a.m. to 9 p.m.;

B.     There shall be no outdoor activity associated with the massage activity or establishment.

C.     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

D.     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.

E.     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.

F.     All refuse, garbage, waste, solid or otherwise, shall be properly disposed of; laundry shall be changed after each massage/client; laundry shall be cleaned on a daily basis during the days the establishment is in operation; all rooms, tables, etc., shall be sanitized daily; and all massage practitioners shall sanitize their hands prior to performing a massage;

G.     All massages shall be therapeutic and health related.  No massages shall be offered or provided (including by means of print advertisement or Internet advertisement) which are unlawful, illicit, or involve sexual acts or relations or are sexually oriented. No massage establishment shall have an entrance or exit way providing a direct passageway to any other type of business, residence or living quarters.

H.     There shall be no obstruction of the passage of light through any windows of the massage establishment premise by means excluding but not limited to affixing plywood, paper, or taping other opaque materials over the windows. This restriction does not apply to the standard use of curtains or blinds.

I.     No massage services shall be provided to persons under the age of 18 unless the parent or guardian of said minor is physically present when such services are provided or such parent or guardian has provided written authorization, properly notarized, for such services;

J.     The massage establishment, any massage practitioner working in or any person practicing or providing massage services or any person occupying the establishment shall obtain, and maintain in effect all licenses and permits required by any and all applicable state and local governmental authorities for the provision of massage services, including those required pursuant to Article 155 of the New York State Education Law (§§ 7800 et seq.) and this Chapter. Anyone providing massage services shall have a degree demonstrating graduation from a Recognized School for Massage.

K.     All persons providing massage services shall obtain and keep current photo identification from the New York State Department of Education (“DOE”), the New York State Department of State (“DOS”) or other appropriate New York licensing department establishing that said person is licensed to provide massage services.  The current New York State license, registration and photo I.D. shall be posted in a prominent location within the premises establishing that all persons providing massage services are properly licensed and registered.  This requirement shall not apply to the extent that a provision of state law (such as Article 155 of the New York State Education Law) exempts a person who provides massage services from the requirement to be licensed and/or registered.  Upon request by either a customer or a representative of the Town, the original of such documents shall be produced for inspection.  The names and addresses of all persons who are providing massage services, along with copies of their permits and licenses, shall be provided to the Town before any such person may be permitted to provide massage services.

L.     The property owner, landlord, permittee or license holder shall provide Town representatives and/or the police access to the premises in order to allow them to ascertain which persons are providing massage services on the premises and to confirm whether such persons are in fact properly licensed and/or registered.

M.     Within five days after receipt of same, the operator of a massage establishment shall provide the Town copies of any summonses or violations issued with respect to the operation of the massage establishment.

N.     The massage establishment shall not be conducted in a disorderly manner or in a manner which constitutes a public nuisance.

O.     Alcoholic beverages shall not be sold or consumed on any premises where massage services are provided.

P.     The Special Permit and License shall be immediately revoked if, subsequent to the issuance of the Special Permit or License, any person providing massage services on the premises has been criminally convicted of a charge involving prostitution or illegal drug use or the unauthorized or unlicensed provision of massage services.  Under such circumstances, no massage activities will be permitted prior to the issuance of a new Special Permit and License.

Section 10.  Exemptions.

The following shall be exempt from the requirements of this chapter:

A.     The practice of massage therapy by any person who is authorized to practice medicine, nursing, osteopathy, physiotherapy, chiropractic, podiatry or acupuncture by the State of New York or any other State within the United States of America. This exemption shall only apply to the person who is so authorized and not one employed by, agent of, or assisting such authorized person.

B.     The practice of facial or neck massage which his customarily given in barber shops or beauty parlors for the purpose of beautification by any licensed barber or beauty culturist.

C.     The practice of massage therapy by any person:

a.     Employed in a medical institution licensed or chartered by the State of New York, provided that such person is under the on-site supervision of a person licensed to practice massage therapy or authorized to practice massage therapy in conjunction with the practice of medicine, nursing, osteopathy, physiotherapy, chiropractic, or podiatry.

b.     Enrolled in a program of a recognized school or institute of massage therapy, provided that such person is under the on-site supervision of a person licensed to practice massage therapy or authorized to practice massage therapy in conjunction with the practice of medicine, nursing, osteopathy, physiotherapy, chiropractic, or podiatry.

c.     Employed as a trainer by a professional athletic association, club or team, or as a member of the physical education department of an accredited university, college or high school.

d.     Employed as a trainer and/or massage therapist in an indoor membership gymnasium or personal training facility. 

D.     All other persons who would otherwise be exempt under § 7805 of the New York State Education Law. 

Section 11.  Registration and Compliance of Existing Massage Establishments.

A.     Registration.  The provisions of Chapter 285-42 notwithstanding, all massage establishments in existence at the time this Local Law becomes effective shall, within sixty (60) days thereof, obtain the required license from the Town Clerk and apply for the required special use permit from the Town Board, which shall promptly schedule a public hearing thereon and, within thirty days (30) thereafter, shall either reject the application as incomplete, grant the permit or deny the permit, with written findings to support the action taken provided to the applicant. 

B.     Compliance.  Within four (4) months after the effective date of this Local Law,  any massage establishment in existence when the Local Law became effective that is determined not to be in compliance therewith shall be ordered closed, and made to obtain a permit and comply with all of the requirements of this Local Law.  

Section 12.   Enforcement, Remedies and Penalties

Enforcement and remedies.  The Town of Greenburgh Police Department and/or the Building Inspector shall be charged with the enforcement of this Chapter.  Anyone violating this Chapter shall, upon conviction, be guilty of a misdemeanor and subject to a fine of up to $2,500 and 15 days imprisonment or both.  Each day that a violation continues shall be deemed a separate offense. Any person convicted of a second violation of this chapter within three years of a prior conviction under this chapter shall be guilty of a misdemeanor and, upon conviction, subject to a fine of twice that imposed for the first offense, up to $5,000 and/or imprisonment for a period not to exceed 15 days.Nothing herein shall be deemed to preclude the Office of the Town Attorney from exercising its authority to seek the termination for good cause shown of any license or permit that may be issued hereunder and to obtain an order requiring the immediate closure of any such licensee or permit holder or the immediate closure of any massage establishment found not to have the required license and/or permit.

 

Section 13.  Emergency Provisions

A.     When, in the opinion of the Fire Marshal, Building Inspector or any police officer of the Town of Greenburgh, there exists a violation of this chapter which creates imminent danger to public safety, the Fire Marshal, Building Inspector or any police officer of the Town of Greenburgh may order the owner:

1)     If it is a violation which by its nature can be corrected immediately, to cease or abate said violation.

2)     If it is a violation which by its nature requires a period of time to correct, to evacuate all patrons from the premises.

 

B.     Upon failing to comply with such an order, the person or persons so ordered shall be guilty of a misdemeanor and subject to immediate arrest for violation of this chapter and any applicable provisions of the Penal Law of the State of New York. In order to protect the public health, safety and welfare, the Fire Marshal, Building Inspector or any police officer of the Town of Greenburgh may order such massage establishment evacuated, and the massage establishment license of such establishment shall be immediately suspended; provided, however, that within 24 hours or the next business day following such evacuation, whichever is later, there shall be a finding by the Building Inspector, Fire Marshal or Police Chief that emergency conditions exist that require the continuation of the suspension until a hearing is provided or other action taken as provided for under this chapter. In the event that there is not such a finding, the massage establishment shall be permitted to operate pending a hearing or other action taken as provided for under this chapter.

Section 14.  Conflicts, Severability.

Wherever the requirements of this Chapter are at variance with other Articles, Section or Chapters of the Code of the Town of Greenburgh, or any other lawfully adopted rule, regulation, local law or other enactment, the most restrictive or that imposing the highest standards shall govern unless a contrary intent is expressly stated.  If any section, paragraph, subdivision, clause or provision of this Chapter shall be adjudged illegal or invalid, such adjudication shall apply only to the section, paragraph, clause or provision so adjudged, and the section, paragraph, clause or provision so adjudged shall be severed and the remainder of this chapter shall remain valid and effective.  

 

Section 15. Supersession.

 

Pursuant to Municipal Home Rule Law § 22, this local law is intended to supersede any inconsistent provision of law.

 

 

Section 16 Effective Date.

 

This Local Law shall take effect immediately upon filing with the Secretary of State.

 

 
 
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