HomeMy WebLinkAboutOrdinances - MC-05-870 - 08/29/2005 - Chapter 30 Massage Establishments and TherapistsORDINANCE NO. MC-05-870
An Ordinance Amending Chapter 30, Article 3, Section 30-15 through Section 30-31,
Massage Establishments and Massage Therapists,
of the Municipal Code, City of McHenry, Illinois
BE IT ORDAINED by the CITY COUNCIL of the CITY OF McHENRY, McHenry County,
Illinois, as follows:
SECTION 1: That Chapter 30, Article 3, Sections 30-15 through 30-31, Massage
Establishments and Massage Therapists, of the Municipal Code, City of McHenry, Illinois, shall be
amended to read as follows:
ARTICLE 3. MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS
Sec. 30-15 Additional Terms Defined.
In addition to the terms defined in Article 1 of this Chapter 30, for purposes of Article 3 herein, the
following words or phrases shall have the meanings ascribed to them below, unless otherwise
indicated by the context:
Massage therapist: Any person who, for any consideration whatsoever, engages in the practice of
massage therapy and is licensed by the Illinois Department ofFinancial and Professional Regulation.
Massage therapy license: A valid massage therapy license issued by the Illinois Department of
Financial and Professional Regulations.
30-16 License Required.
It shall be unlawful for any person, association, firm or corporation to operate a massage therapy
clinic in the City without a valid and current license issued by the City pursuant to the terms of this
Chapter 30. A separate license shall be required for each massage therapy clinic location regardless
of whether such multiple clinics are operated by the same person, association, firm or corporation.
30-17 Exemptions.
The licensing requirements of this Chapter 30 shall not be applicable to:
I . Hospitals, nursing homes and persons holding an unrevoked certificate to practice the healing
arts under the laws of the Illinois Department of Professional Regulation, including but not
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limited to chiropractors, naprapaths, nurses, occupational therapists, physical therapists and
physicians.
2. Any barber, cosmetologist or nail technician lawfully carrying on their respective business to
the extent authorized under a valid unrevoked license or certificate or registration issued by
the State. Provided, this exemption is only intended to permit normal and customary barber,
cosmetologist or nail technician services which involve incidental physical contact, such as
scalp rubs and facials, which otherwise qualify as massage activities. This exemption is not
intended to include, and does not permit; general massage activities as part of any barber,
cosmetologist or nail technician business beyond that authorized by the state license or
certification.
3. Any state registered athletic trainer who administers such athletic -related massage in the
normal course of training duties.
4. A business which employs or includes not more than one massage therapist shall not be
required to apply for or obtain a massage therapy clinic license. Such exempt business must
be located in a structure which contains no more than one room where massage activities are
performed. Except for businesses which operate separate and distinct hours of operation,
such exempt businesses must also be the sole massage activity within such structure. Under
no circumstances shall more than two exempt businesses be permitted in any structure.
Provided further, a massage therapist's license shall be required for the individual massage
therapist performing massage activities in such exempted business.
5. Where massage services are actually performed at the patron's premises, including the
patron's place of business or residence, a massage therapy clinic license shall not be required
for such patron's premises. However, a massage therapist's license shall be required for the
massage therapist performing massage activities in such patron's premises.
30-18 Application for Massage Therapy Clinic License.
Any person desiring to obtain a license to operate a massage therapy clinic shall make application to
the City Administrator. The City Administrator shall have the right to confirm any of the information
asked for, or provided in the application, and shall work in conjunction with the Police Department
where applicable. Applications shall include the following:
1. The name (including nicknames or aliases) and address, telephone number, social security
number and age of the applicant; the registered agent of the applicant if the applicant is a
corporation; and the general or managing partners if the applicant is a partnership.
2.. The location of the massage therapy clinic.
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3. A complete statement of all convictions of the applicant as provided in this Section 30-18. If
the applicant is a corporation, such statement shall include applicant's officers, and directors
thereof, and any stockholder or stockholders owning in the aggregate more than 20 percent of
the stock of such corporation. If the applicant is a partnership, such statement shall include
all general partners, and any limited partner owning more than 20 percent of the aggregate
limited partner interest in such partnership. Such listing shall include the following:
(a) Any offense involving sexual misconduct with children or other sex offenses as
defined in 720 ILCS 5/11-6 et seq., as amended.
(b) A felony based upon conduct or involvement in such business or activity or related or
similar business or activity, within the past 11 years; or
(c) A felony unrelated to conduct or involvement in such business or activity or related
to similar business or activity, but which felony involved the use of a deadly weapon,
violations of the Cannabis Control Act (720 ILCS 550/1 et seq.) or the Controlled
Substance Act (720 II.,CS 570/110 et seq.) or violence against another person,
including rape, within the past five years; or
(d) A misdemeanor or licensing ordinance violation, based upon conduct or involvement
in such business or activity or related or similar business or activity, within the past
two years.
4. A description of the proposed massage therapy clinic, including the number of massage
therapists, other activities or business conducted at the same location, and the physical
facilities to be used, with a floor layout diagram of same attached thereto.
5. A statement of whether the business will be conducted by a manager. In such case the
manager's name, address, telephone number and age shall be provided, along with a
statement of any convictions as set forth in this Section 30-18.
6. A current certificate of inspection of the premises from the McHenry County Department of
Health, if required.
7. The license fee as provided in this Section 30-22.
8. Business, occupation or employment of the applicant for three years immediately preceding
the date of application.
9. In the event the applicant is made aware that any information or document submitted as part
of this application process is inaccurate or incomplete, applicant shall immediately notify the
City and provide appropriate corrections. Failure to accurately and completely provide, or as
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necessary update, required information, may delay the processing of such application or
result in its denial.
11. Proof of United States citizenship, permanent resident alien status or a valid work permit, as
well as proof of professional liability insurance in an amount of not less than $1,000,000 per
each occurrence.
30-19 Application Processing.
(a) An application shall not be considered proper or filed until all information and
material required of the applicant pursuant to this Article 3 has been submitted.
(b) Upon receipt of a proper application, the City Administrator, along with the Police
Department or designee, shall investigate the information contained in the application and shall
determine compliance with all applicable laws of the City. The nature and scope of the investigation
shall be within the discretion of the City Administrator and the Police Department, and shall include,
but is not limited to, a criminal history background check and premises inspection. The applicant for
a massage therapy clinic license shall allow the Building Code Enforcement Officer to inspect the
premises and/or review plans for the facility, to ascertain whether the premises and/or planned
changes are in conformance with the City Building Code. In the event plans are submitted prior to
construction, a final inspection will be conducted prior to issuance of the license to assure
compliance with said Building Code.
(c) The investigation, including any required inspections and background checks, shall be
completed within 35 business days after receipt of a proper application., Provided, the City
Administrator may extend this investigation period an additional period, not to exceed an additional
11 business days, upon a finding that such additional period is needed to properly complete the
investigation. Provided, whenever such extension period is invoked, written notice shall be provided
to the applicant along with the specific reasons for such extension.
(d) If, within 11 business days following completion of the investigation, the City
Administrator determines that the applicant and premises are in compliance with the applicable laws
of the City and the State, the City Administrator shall issue the license.
(e) If, within 11 business days following completion of the investigation, the City
Administrator determines that the premises are not in compliance with the applicable laws of the
City and the State, the City Administrator shall notify the applicant in writing that the license has
been denied, setting forth the reasons therefore, and advising the applicant of his or her right to
appeal pursuant to Section 30-29 herein. Unless a timely appeal has been filed as provided in Section
30-29 herein, such denials shall be final and effective on the 11 th day following service of the notice
on the applicant. The fee paid by the applicant pursuant to Section 30-22, shall be returned, less
$50.00 which will be retained as the processing fee.
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30-20 Transfer, Changes in Ownership or Management.
(a) Any license issued pursuant to this Chapter 30 shall be applicable only to the specific
applicant and location designated, and may not be sold, transferred or otherwise assigned. Provided,
where the licensee remains the same, but a request is made to designate and substitute a different
location, the City Administrator may approve such new location upon submission of proof that such
location is in compliance with the provisions of this Article 3. A fee of $50.00 shall be required for
processing such Iocation.
(b) For purposes of this Chapter 30, a transfer of ownership or control of a massage
therapy clinic shall mean the sale, lease or sublease of the business, the transfer of securities which
constitute a controlling interest in the business whether by sale, exchange or similar means, or the
establishment of a trust, gift or other similar legal device which transfers the ownership or control of
the business, except for transfer by bequest or other operation of law upon the death of the person
possessing the ownership or control, or any person not previously listed as an applicant pursuant to
this Article 3 acquires an ownership interest in the business of 20 percent or more.
(c) A transfer of ownership or control of a massage therapy clinic shall constitute change
in the licensee and the existing license shall be deemed surrendered and extinguished. A new
application and license shall be filed and processed as provided in this Article 3 prior to such transfer
taking effect. Any transfer in the ownership or control of a massage therapy clinic in violation of this
Section 30-20 shall constitute operation of such business without a license.
(d) Notice shall be provided prior to any change of the designated manager conducting
business for the massage therapy clinic as provided in this Article 3. The licensee shall, not less than
11 business days before such change is to take effect, give the City Administrator written notice of
such change. The notice shall include any information concerning the new manager which is required
in Section 30-18 herein.
30-21 Limitation on Issuance and Review of License.
No massage therapy clinic license shall be issued or renewed under the following circumstances:
1. To an applicant who has been convicted of the following offenses:
(a) Any offense involving sexual misconduct with children or sex offenses as defined in
720 ILCS 5/11-6 et seq., as amended; or
(b) A felony based upon conduct or involvement in such business or activity or related or
similar business or activity, within the past 11 years; or
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(c) A felony unrelated to conduct or involvement in such business or activity or related
to similar business or activity, but which felony involved the use of a deadly weapon,
violations of the Cannabis Control Act (721 ILCS 55011 et seq.) or the Controlled
Substance Act (720 ILCS 570/110 et seq.) or violence against another person,
including rape, within the past five years; or
(d) A misdemeanor or licensing ordinance violation, based upon conduct or involvement
in such business or activity or related or similar business or activity, within the past
two years.
2. To an applicant whose license issued under this Chapter 30 has been revoked for cause.
3. To an applicant who at the time of application for renewal of any license issued hereunder
would not be eligible for such license upon a first application.
4. To an applicant under the age of 18 years of age.
5. To an applicant where grounds for revocation exist as provided under Section 30-28.
6. In addition to the provisions stated hereinabove, no massage therapy clinic license shall be
issued or renewed under the following circumstances:
(a) To a partnership, if any general partner thereof, or any limited partner owning more
than 20 percent of the aggregate limited partner interest in such partnership, would
not be eligible to receive a license hereunder.
(b) To a corporation, if any officer or director, or any stockholder or stockholders owning
in aggregate more than 20 percent of the stock of such corporation, would not be
eligible to receive a license hereunder.
(c) To a corporation unless it is incorporated in Illinois, or unless it is a foreign
corporation which is qualified under the Business Corporation Act of 1983 (805
ILCS 5/1.01 et seq., as amended) to transact business in Illinois.
(d) To any applicant whose place of business is conducted by a manager unless the
manager possesses the same qualifications required by the licensee.
(e) To any applicant who is not a beneficial owner of the business to be operated by the
licensee.
7. To an applicant who is not a United States citizen or has status as a permanent resident alien
or a valid work permit.
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30-22 Fees.
The fee for a massage therapy clinic license required by this Section 30-22 shall be $100.00 and such
license shall be valid for three (3) years.
30-23 Expiration of License; Renewal.
(a) Each license shall expire on December 31 of the third year and may be renewed only
by making application as provided in this Article 3. Provided, in lieu of full submittal, an applicant
may, on forms provided by the City, certify that the information previously provided remains true
and valid. This renewal application shall be processed as provided in Section 30-19. Application for
renewal should be made at least 30 days before the expiration date, and when made less than 30 days
before the expiration date, the expiration of the license will not be affected. Renewal applications for
massage therapy clinic licenses shall be obtained from the City Administrator's office.
(b) When the City Administrator denies renewal of a license, the applicant shall not be
issued a license for one year from the date of denial. Provided, if subsequent to denial the City
Administrator finds that the basis for denial of the renewal license has been corrected or abated, the
applicant may be granted a license.
30-24 Massage Therapy Clinic Facilities.
No license, or renewal thereof, shall be issued to conduct a massage therapy clinic unless an
inspection, conducted by the City Administrator, or his designee, confirms that the clinic complies
with the following minimum requirements. Renewal of a license may require reinspections by the
City Administrator or his designee.
Hot and cold running water shall be provided.
2. Adequate private dressing and toilet facilities shall be provided for patrons.
3. All walls, ceilings, floors, steam rooms and other physical facilities shall be kept in good
repair, and maintained in a clean and sanitary condition.
4. Clean and sanitary towels and linens shall be provided for each client receiving massage
services. No common use of towels or linens shall be permitted.
30-25 Prohibited Acts and Conditions.
(a) No employee or operator shall perform, offer or agree to perform any act which would
require the touching of a patron's genital area.
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(b) The sexual or genital areas of patrons must be covered by non -transparent towels,
clothing, cloths or undergarments at all times while in a massage therapy clinic premises, except
while said patrons are alone in a washroom, bathroom, shower or clothes -changing area, or except
when said patron is receiving lymphatic drainage treatment from a massage therapist having a
minimum of 20 hours of training in such treatment.
(c) It shall be unlawful for any person, knowingly, in a massage therapy clinic to place his
or her hand upon, to touch with any part of his or her body, to fondle in any manner, or to massage, a
sexual or genital area of any other person.
(d) No person shall administer a therapeutic massage to a patron if the massage therapist
has a skin fungus, skin infection, skin inflammation or skin eruption; unless a physician duly
licensed by the State of Illinois certifies in writing that such massage therapist may safely administer
a massage and prescribing the condition thereof.
(e) No employee or operator shall administer a therapeutic massage to a patron exhibiting
any skin fungus, skin infection, skin inflammation or skin eruption; unless a physician duly licensed
by the State of Illinois certifies in writing that such person may be safely massaged and prescribing
the conditions thereof.
(f) It shall be unlawful for any person to advertise themselves as a massage therapist
without having a valid massage therapist license as defined in this Chapter 30.
(g) Any license issued under this Chapter 30 shall be displayed in a conspicuous location
within the customer area of a licensed clinic. Massage therapists shall wear or otherwise display in a
conspicuous location within the customer area their State massage therapy license at all times when
they are performing, or holding themselves out as available to provide any therapeutic massage. In
lieu of this display requirement, when therapeutic massage services are provided at the patron's
location, the State massage therapy license shall be presented to the customer before such services
commence.
(h) At all times during the hours of operation of a massage therapy clinic there shall be
present a manager or other employee of the licensee who shall not be less than 18 years of age.
(i) No bathroom, bath, shower and/or clothes -changing area may be occupied by more
than one person at any time. No massage therapist, massage therapy clinic owners, managers,
employees and/or agents may be in any sauna or whirlpool while a patron is in same.
0) No massage therapy clinic licensee shall employ as a massage therapist any person
unless said person has a valid State massage therapy license.
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(k) It shall be unlawful for any person who holds a license to operate a massage therapy
clinic within the City to fail to comply with the conditions and regulations set forth in this section or
to suffer or permit noncompliance with such conditions and regulations on or within the licensed
premises.
(1) It shall be unlawful for any person, association, firm or corporation licensed as
provided in this Chapter 30 to operate under any name or conduct business under any designation not
specified in such license.
(m) It shall be unlawful for any person, corporation, firm or association licensed under
this Chapter 30 to provide massage therapy services between the hours of 9:00 p.m. and 7:00 a.m.
(n) A licensee shall have the premises supervised at all times when open for business. At
least one person who is a State licensed massage therapist shall be on the licensed premises at all
times while the establishment is open. The licensee shall personally supervise the business, or shall
delegate such supervisory responsibility to a manager whose name is listed on the City license and
shall note violate, or permit others to violate, any application provisions of this Chapter 30. The
violation of any provision of this Chapter 30 by any agent or employee of the licensee shall constitute
a violation by the licensee.
(o) Employee Dress Code: All employees, including massage therapists, shall be clean
and wear clean, nontransparent outer garments, covering at least the entire torso and the sexual and
genital areas as defined herein.
(p) Separate License for Each Premises: Licenses shall apply only to the premises
described in the application, and in the license issued thereon, and only one location shall be so
described in each license.
(q) Minors Prohibited: No person under the age of 18 shall be permitted to come or
remain on the area where the massage activity is taking place on the licensed premises.
(r) Alcoholic Beverages Prohibited: No person shall sell, give, dispense, provide, keep or
consume, or cause to be sold, given dispensed, provided, kept or consumed, any alcoholic beverage
on the licensed premises.
30-26 Premises Restrictions.
(a) No massage therapy clinic shall be located on any premises for which a license to sell
alcoholic liquor has been issued.
(b) The massage therapy clinic premises shall be in compliance with applicable codes and
ordinances of the City, including, but not limited to, zoning, building, fire and life safety codes.
Chapter 30 Amendment, Page 9
(c) When any license has been revoked for cause, no license shall be granted to any
person for the period of one year thereafter for the conduct of a massage therapy clinic in the
premises described in the revoked license.
30-27 Notice of Revocation, Suspension, or Refusal of a License.
No license shall be revoked, suspended or refused until the licensee has received due notice. Said
notice shall be served upon the licensee by delivering the same personally or by leaving such notice
at the place of business or residence of the licensee in the custody of a person 15 years of age or
older. In the event the licensee cannot be found, and the service of such notice cannot be otherwise
made in the manner herein provided, a copy of such notice shall be sent by certified mail, postage
prepaid, addressed to the licensee at the licensee's place of business or residence at least 11 business
days prior to the date of such hearing.
30-28 Revocation or Suspension of a License.
The license of a massage therapy clinic may be revoked or suspended, in addition to the fines
provided for in Section 30-30 herein, upon one or more of the following grounds:
The licensee has committed an act(s) of fraud or deceit in the application for license, or
renewal thereof, submitted to the City Administrator.
2. The licensee is engaged in the practice of massage under a false or assumed name, or is
impersonating another massage therapist of a like or different name.
3. The licensee has committed an act of fraudulent, false, misleading or deceptive advertising,
or prescribing medicines, drugs or practices any other licensed profession without legal
authority therefore.
4. The licensee has committed an act(s) of prostitution, sexual offense or trafficking in
controlled substances after the date of issuance of a massage therapy clinic or of a massage
therapist license.
5. The licensee is found to be in violation of any section of this Chapter 30.
6. The licensee permits acts of prostitution or solicitations for acts of prostitution to be
performed within the premises or elsewhere or permits any procedure during the performance
of services within or off the premises that are performed for the purpose of sexual arousal or
gratification of any patron, or should reasonably be expected to cause such result, or permits
the use or trafficking of controlled substances or cannabis on the premises, or the
commission of any unlawful act on the premises.
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7. The licensee performs an act of prostitution or other lewd conduct within the premises or
without the premises or solicits an act of prostitution or other lewd conduct on or off the
premises or performs services within or without the premises in such manner for the purpose
of sexual arousal or gratification of a patron, or should reasonably be expected to cause such
result, or the licensee uses or is trafficking in controlled substances or cannabis.
8. The licensee has violated or is not in compliance with this Article 3 and the license has been
suspended within the preceding 24 months.
9. A licensee has knowingly allowed prostitution on the premises.
11. A licensee knowingly conducted massage activities in the City during a period of time when
the licensee's license was suspended.
12. Within a 24- month period, a person or persons committed an offense as listed in Section 30-
21-1, which substantially occurred in or on a licensed premises, and for which a conviction
has been obtained, and the person or persons were employees of the licensee at the time the
offenses were committed. The fact that a conviction is being appealed shall have no effect on
the revocation of the license.
30-29 Appeal.
(a) Any applicant or licensee who receives a notice of denial, revocation or suspension
may file an appeal with the Mayor as provided herein. Such appeal shall be filed with the Mayor in
writing no later than 11 business days following receipt of the notice, and shall include a response to
the City Administrator's notice. Such response shall include a brief statement addressing the
substantive deficiencies cited in the City Administrator's notice and shall set forth the basis for why
the license should not be denied, revoked or suspended. If an appeal is filed of an order of the City
Administrator, suspending or revoking a license, such suspension or revocation shall be stayed
pending final order of the Mayor as provided in this Section 30-29.
(b) The Mayor shall schedule an informal public hearing not later than 11 business days
following receipt of such appeal. The purpose of the hearing will be to offer the applicant or licensee
an opportunity to show cause why the application should not be denied, or why the license should
not be suspended or revoked. A record shall be made of the informal public hearing and documents
may be submitted and/or testimony given, either in person or through sworn affidavit. This record
may be made by electronic recording. The Mayor shall have the power to administer oaths and to
continue the hearing from time to time to permit the applicant to provide additional information.
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The Mayor may designate a hearing officer to schedule, convene and conduct the public
hearing. In such case, the hearing officer shall have the same powers as the Mayor to administer
oaths and continue the hearing from time to time to permit the applicant to provide additional
information. Where such designation has been made, the hearing officer shall submit proposed
findings and recommendations to the Mayor within 21 days of the close of the hearing.
(c) Within 21 days after the close of the hearing set forth in Section 30-29(b) herein, the
Mayor shall make written findings of fact and issue an appropriate order. Within five business days a
copy of such order shall be served upon the applicant or licensee. If the Mayor determines that the
license should be revoked or suspended, the suspension or revocation shall take effect immediately
upon receipt unless otherwise specified.
(d) The decision of the Mayor provided in Section 30-29(c) herein shall be the final
administrative action of the City with respect to the license or application, and shall be subject to the
immediate appeal by the licensee or applicant to the circuit court. Such appeal to the circuit court
shall be filed not later than 35 days following the receipt of the Mayor's findings and order. Failure
to file such appeal as provided herein shall render the Mayor's decision final.
30-30 Penalty for Violation.
Any person, corporation, firm or partnership found guilty of violating, disobeying, omitting,
neglecting or refusing to comply with any of the provisions of this Chapter 30 shall be punished by a
fine of not less than $200.00 nor more than $1,000.00 for each offense. A separate offense shall be
deemed committed on each day during or on which a violation occurs or continues. In addition to any
penalty, a licensee violating any provision of this Chapter 30 may be subject to having the license
revoked, suspended or not renewed.
SECTION 2: That Section 30-31 of Chapter 30, Article 3, Massage Establishments and
Massage Therapists, of the Municipal Code, City of McHenry, Illinois, is hereby repealed in its
entirety.
SECTION 3: If any section, paragraph, subdivision, clause, sentence or provision of this
Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment
shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and
continue in full force and effect.
SECTION 4: All ordinances or parts of ordinances in conflict herewith are hereby repealed
to the extent of such conflict.
SECTION 5: This Ordinance shall be in full force and effect upon its passage, approval and
publication in pamphlet form (which publication is hereby authorized) as provided by law.
Chapter 30 Amendment, Page 12
Voting Aye: SANTI, GLAB, SCHAEFER,'MURGATROYD, WIMMER, PETERSON, CONDON
Voting Nay: NO N E
Absent: NONE
Abstain: NONE
(SEAL)
ATTEST:
Passed:
Approved:
APPROVED:
mayor Susan E. Low
AUGUST 29, 2005
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