Town of Gorham, ME - MASSAGE THERAPIST REGULATORY ORDINANCE

This ordinance shall be known as the "Town of Gorham Massage Establishment and Massage Therapist Regulatory Ordinance" and may be referred to by short title as the "Massage Ordinance".

The purpose of this ordinance is to regulate the operation of massage establishments in order to promote the public health and safety and the general welfare.

"Massage" and "therapeutic massage" are used interchangeably to mean any method of rubbing, kneading, tapping, vibration, compression, percussion, application of friction or manipulation of the external parts of the human body with the hands or other parts of the body or with the aid of any instrument or device.

"Massage establishment" and "therapeutic massage establishment" are used interchangeably to mean any business including but not limited to a sole proprietorship in which the business operations consist of providing or making available massage in the Town of Gorham for consideration or with the expectation of receiving consideration or any gratuity, whether or not the business has a fixed placed of business within the town limits.

"Massage therapist" means any person who performs therapeutic massage for consideration or gratuity or with the expectation of receiving consideration or any gratuity.

"Recognized school" means any school or institution of learning which has for its purpose the teaching of the theory, method, profession and work of massage therapy and is licensed or certified by the State of Maine or any other state. Schools offering a correspondence course not requiring actual attendance in class shall not be deemed a recognized school.

(A) Members of other professions licensed, certified or registered by the State, including but not limited to: physicians, chiropractors, physical therapists, cosmetologists, or registered nurses performing soft tissue manipulation consistent with the laws of the State governing their practices, provided they do not use the title "massage therapist".

(B) Individuals who practice other forms of tissue work exclusive of massage therapy, such as rolfing, trafer, reflexology, Shiatsu, Reiki and polarity, if those practitioners do not use the title "massage therapist", unless they choose to meet the requirements of this chapter.

(A) Therapeutic Massage Establishment License. No person shall operate a therapeutic massage establishment without a valid therapeutic massage establishment license issued by the Town. A separate license shall be required for each such establishment.

(B) Massage Therapist License. No person shall work as a massage therapist without a valid massage therapist license or a combined massage establishment/therapist license issued by the Town unless such person currently posses a valid massage therapist license from another Maine municipality whose massage regulatory ordinance substantially conforms with the requirements of this ordinance in the opinion of the Town Clerk.

(C) Combined Massage Establishment/Massage Therapist License. A sole practitioner who employs no massage therapist other than himself may apply for a combined massage establishment/massage therapist license in lieu of both a therapeutic massage establishment license and a massage therapist license.

(D) Conditional Massage Therapist License. For the purpose of allowing an applicant for a massage therapist license or combined massage establishment/massage therapist license who is otherwise qualified to obtain such a license, except for compliance with Sec. 11, to comply with this ordinance, a conditional massage therapist license may be issued under the following conditions:

2. The license under this sub-section shall designate one massage therapist or combined massage establishment/massage therapist licensed by the Town as the supervisor for the licensee. No more than one licensed supervisor shall be designated unless said licensed supervisor voluntarily surrenders his license. The designated licensed supervisor may supervise no more than two (2) conditional massage therapists per license year.

(A) Any person presently operating as a message therapist and/or operating a massage establishment in the Town as defined herein on the effective date of this ordinance shall comply with the terms of this ordinance starting on its effective date and shall obtain a license hereunder within three (3) months of the effective date of this ordinance.

(B) Any license issued pursuant to this ordinance between the effective date hereof and December 31, 1991 shall be valid until December 31, 1992. For any license issued pursuant to this ordinance after December 31, 1991, the expiration date of Sec. 8 shall apply.

No license shall be issued until the matter has first been advertised for public hearing and a public hearing thereon has been held by the Town Council.

The Town Clerk shall give public notice of the public hearing on applications by publishing a notice in a newspaper of general circulation in the Town indicating the time and place of the public hearing, the nature of the matter to be heard, and, for a massage establishment or combined massage establishment/massage therapist license, the address or location of the property on which the establishment is to be located.

For a therapeutic massage establishment or combined massage establishment/massage therapist license, notices shall also be sent to owners of property located within five hundred (500) feet of said property. For the purpose of this section, the owners of property shall be considered to be the parties listed by the assessor's department of the Town as those against whom municipal real estate taxes are assessed. Failure of any property owner to receive a notice of public hearing shall not necessitate another hearing nor invalidate any action of the Town Council on such application.

2. Deposit the prescribed license fee in advance with the Town Clerk; these fees are for an annual license for the calendar year ending on December 31 of each year and are as follows:

3. Submit the completed application to the Town Clerk, together with attested copies of the articles of incorporation and bylaws, if the applicant is a corporation, evidence of partnership, if a partnership, or articles of association and bylaws, if the applicant is an association, as well as a list of all offers and directors;

4. File an affidavit which will identify all owners, officers, managers or partners of the applicant and their places of residence at the time of the application and for the immediately preceding three (3) years;

5. For a combined massage establishment/massage therapist license, a massage therapist license or a conditional massage therapist license, submit two (2) front face photographs of the applicant taken within thirty (30) days of application, of such size as the Town Clerk may specify;

6. File the release authorized by 16 M.R.S.A. Section 620(6) (Criminal History Record Information Act) with the application of each applicant and for each officer, owner, manager or partner of an applicant seeking a therapeutic massage establishment or combined massage establishment/massage therapist license; and

If an application is denied or withdrawn, the license fee shall be refunded to the applicant. The processing fee and costs of published or mailed notices shall not be refunded.

No applicant nor, for a massage establishment or combined massage establishment/massage therapist license, any owner, officer, manager or partner of an applicant shall have been convicted of a crime now classified as a Class A, B or C crime, a crime involving moral turpitude, nor of violating any of the gambling, drug or prohibitive liquor laws of either the United States or the State of Maine or any other state within the five (5) years immediately preceding the date of application.

(A) The Code Enforcement Officer shall verify that the premises at which the establishment will be located comply with all applicable ordinances of the Town including, but not limited to, the building code, electrical code, fire and Life Safety codes, plumbing code and zoning ordinance and shall report his findings in writing to the Town Council;

(B) The Town Clerk shall review the application and other documents and determine whether such documents comply with all of the requirements of this article and shall report such findings in writing to the Town Council;

(C) If requested by the Code Enforcement Officer, the Health Officer shall inspect the location or proposed location to determine whether the applicable ordinances relating to health and safety have been satisfied and shall report his findings in writing to the Town Council;

(D) The Police Chief or his agent shall investigate the application, including the criminal history record information required under Sec. 9, and shall report his findings in writing to the Town Council.

Each applicant for a massage therapist license or combined massage establishment/therapist license shall show proof of basic proficiency in the field of massage therapy which may be satisfied by:

2. Evidence of one hundred (100) hours of on-the-job training in therapeutic massage performed in the presence of a person holding a valid massage therapist license or a combined massage establishment/massage therapist license issued by the Town, by the State of Maine, or by a municipality which has enacted massage therapist licensing requirements similar to those of the Town;

3. Evidence of continuous practice as a massage therapist for at least one (1) year, accompanied by the written recommendation of at least three (3) persons, two (2) of whom hold a valid massage therapy license or a combined massage establishment/massage therapist license issued by the Town, by the State of Maine, or by a municipality which has enacted massage therapist licensing requirements similar to those of the Town, (and one of whom is a health care provider who is not a massage therapist, which recommendation shall state that said person has personally received a massage from the applicant that was administered in a skilled and professional manner; or

4. Evidence of successful completion of a certifying or licensing exam given by another municipality, by a state agency, or of the certifying exam given by American Massage Therapy Association.

No person shall make any false, untruthful or fraudulent statement, either written or oral, or in any way conceal any material fact, or give or use any fictitious name in order to secure or aid in securing a license required by this Ordinance. All names, including but not limited to maiden name, ever used by the applicant must be noted on the application.

No person shall make use of, in any manner, to his own or another's benefit, any license which has not been duly issued to him in accordance with this Ordinance.

2. to a corporation if any principal officer thereof or any person having an actual ownership interest or management authority therein has a disqualifying criminal conviction within the immediately preceding five (5) years; or

3. to an applicant, other than a corporation, if such applicant or any person having an actual ownership interest or management authority therein has a disqualifying criminal conviction within the immediately preceding five (5) years.

1. to an applicant who has been given a disqualifying criminal conviction at any time during the five (5) years immediately preceding application; or

To an applicant who has submitted an incomplete application, knowingly made an incorrect statement of a material nature, or failed to supply additional information required by the Town Council or reasonably necessary to determine whether the license is usable.

In addition to the provisions of subsection (A), either a massage establishment license or combined establishment/therapist license may be suspended or revoked upon a determination that the licensee:

2. permitted or allowed an employee, massage therapist or conditional massage therapist, to violate any provision to this ordinance on the premises of the establishment or in the course of conduct of the business of the establishment; or

3. knowingly permitted any violation of Title 17-A M.R.S.A. Section 851 and 855. Such knowledge shall be presumed if there have been two (2) or more convictions for any such offense within any one-year period. The applicant or licensee may rebut said presumption by showing that (i) due diligence was exercised to prevent the recurrence of any such offense and (ii) despite such diligence he or she did not know and could not reasonably have known of any subsequent offense.

A valid therapeutic massage establishment license shall be displayed at all times in an open and conspicuous place in the massage establishment for which it was issued. A valid conditional massage therapist license, massage therapist license or combined massage establishment/massage therapist license must be readily available to be produced immediately if demanded of the licensee.

No massage or therapeutic massage shall be practiced on a minor without the presence of a parent or other adult representing the minor.

Every person who conducts or operates a therapeutic massage establishment shall keep the same at all times in a clean and sanitary condition. All instruments, supplies and devices of any kind, or parts thereof, that come into contact with the human body shall be kept clean by a modern and approved method of cleaning.

(C) No massage therapist shall administer a massage unless he or she is fully clothed in non-transparent clothing of the type customarily worm by massage therapist while administering a massage.

No massage establishment shall be kept open for massage purposes between the hours of 10:00 p.m. and 6:00 a.m. provided that any massage begun before 10:00 p.m. may be completed.

At all times when open for business, a therapeutic massage establishment shall have upon the premises a licensed massage therapist or person who possess a combination massage establishment/massage therapist license who shall be available to supervise the operation of the establishment and assure that no violations of this ordinance occur.

The therapeutic massage establishment shall keep a written list of the names and current addresses of all employees, both on duty and off duty. Such list shall be shown to the Chief of Police or his authorized deputy, the Town Clerk or his representative upon request.

The violation of any provision of this article shall be punished by a fine not less than two hundred fifty dollars ($250.00) nor more than five hundred dollars ($500.00) for each offense. Each act of violation and every day upon which any such violation shall occur shall constitute a separate offense. In addition to such penalty, the Town may enjoin or abate any violation of this article by appropriate action.