Town of South Berwick, ME
York County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Council of the Town of South Berwick 8-9-1993. Amendments noted where applicable.]
The purpose of this article is to regulate the operation of massage establishments in order to promote the public health, safety and general welfare.
For the purpose of this article, the following shall apply unless the context clearly implies otherwise:
DISQUALIFYING CRIMINAL CONVICTION
Any conviction for any criminal offense punishable by imprisonment for any period of time, whether or not the sentence was imposed or served, but not including any conviction which is shown to have been set aside on appeal or collaterally, or for which a pardon, certificate of rehabilitation, or the equivalent under the law of the sentencing jurisdiction has been granted, or which is not rationally related to the purpose of licensing massage establishments.
MASSAGE
Massage therapy as defined in Section 14301(4) of Chapter 127 of Title 32 of the Maine Revised Statutes.
MASSAGE ESTABLISHMENT
Any business, including but not limited to sole proprietorship, in which the business operation consists of providing or making available massage in the Town of South Berwick for consideration or with the expectation of receiving consideration or any gratuity, whether or not the business has a fixed place of business within the limits of the Town.
MASSAGE THERAPIST
Any person who performs massage for consideration or gratuity or with the expectation of receiving consideration or any gratuity.
PATRON
Any person who receives a massage.
PERSON
Any individual, partnership, corporation or other entity.
RECOGNIZED SCHOOL
Any school or institution of learning which has for its purpose the teaching of the theory, method, profession and work of massage and is recognized or certified by the State of Maine or any other state. Schools offering a correspondence course not requiring actual attendance of class, shall not be deemed a recognized school.
The following shall be exempt from this article, if duly licensed by and while practicing in accordance with the laws of this state: physicians and surgeons (medical doctors and doctors of osteopathy), physicians' assistants, nurses, chiropractors, physical therapists, barbers, cosmetologists, beauticians, and other health and hygiene professionals.
All massages shall be administered on a massage table, treatment table or treatment mat.
Every person who conducts or operates a 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.
A. 
No massage therapist shall administer a massage to a patron whose genitals are exposed.
B. 
No massage therapist shall administer or agree to administer a massage to the genitals or anus of a patron.
C. 
No massage therapist shall administer a massage unless he or she is fully clothed with nontransparent clothing of the type customarily worn by massage therapists while administering a massage.
No massage establishments shall be kept open for massage purposes between the hours of 9:00 p.m. and 8:00 a.m.
At all times when open for business, a massage establishment shall have upon the premises a licensed massage therapist or person who possesses 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 article occur.
A 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, the Chief's authorized deputy, the Town Clerk or the Clerk's representative, upon request.
The South Berwick Town Clerk is the licensing authority for this article. Decisions of the Town Clerk are appealable to the Town Council no later than 30 days after the Clerk has rendered his/her decision.
A. 
Massage establishment license. No person shall operate a massage establishment without a valid massage establishment license. 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/massage therapist license.
C. 
Combined massage establishment/massage therapist license. A sole practitioner who employs no massage therapist other than himself/herself may apply for a combined massage establishment/massage therapist license in lieu of both a massage establishment license and a massage therapist license.
D. 
Conditional massage therapist license. For the purpose of allowing an applicant for a license pursuant to § 95-10B or C who is otherwise qualified to obtain such a license, except for compliance with § 95-15, to comply with § 95-15, a conditional massage therapist license may be issued under the following conditions:
(1) 
All provisions of this article shall apply to a licensee under this section, except § 95-15.
(2) 
The licensee under this section shall designate one massage therapist or combined massage establishment/massage therapist licensed by the Town of South Berwick as the supervisor for licensee.
(3) 
The licensee under this section may designate no more than one licensed supervisor pursuant to § 95-10D(2) unless said licensed supervisor shall voluntarily surrender his/her license.
(4) 
The designated licensed supervisor may supervise two or fewer conditional massage therapists per license year.
(5) 
Licenses issued pursuant to this Subsection D may not be renewed.
A valid 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.
A. 
A license application under this article shall be denied to any of the following persons:
(1) 
Massage establishment license.
(a) 
A corporation not registered to do business in this state;
(b) 
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 years; or
(c) 
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 years.
(2) 
Massage therapist, combined massage establishment/massage therapist, or conditional massage therapist.
(a) 
To an applicant who has a disqualifying criminal conviction at any time during the five years immediately preceding application; or
(b) 
To an applicant who is not at least 18 years of age.
B. 
The Clerk shall make and keep a written record of every decision to deny an application for any license hereunder.
A. 
All licenses. In addition to the grounds for revocation or suspension set forth in § 95-12 above, any license may be suspended or revoked upon a determination that the licensee:
(1) 
Failed to notify the Clerk of any change in material facts set forth in the application for such license; or
(2) 
Violated any provision of this article.
B. 
Massage establishment or combined establishment/therapist license. In addition to the provisions of Subsection A, either a massage establishment license or combined massage establishment/massage therapist license may be suspended or revoked upon a determination that the licensee:
(1) 
Permitted any person to perform massage without a valid license to do so;
(2) 
Permitted or allowed an employee, massage therapist or conditional massage therapist to violate any provision of this article 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 17-A M.R.S.A. §§ 851 through 855. Such knowledge shall be presumed if there have been two or more convictions for any such offense within any one-year period. The applicant or licensee may rebut said presumption by showing that due diligence was exercised to prevent the recurrence of any such offense and, despite such diligence, he or she did not know and could not reasonably have known of any subsequent offense.
A. 
Any person desiring a license pursuant to this article shall file a written, signed application with the Town Clerk on a form to be furnished by the Clerk. An application for a combined massage establishment/massage therapist license, a massage therapist license or a conditional massage therapist license shall be accompanied by two front-face photographs of the applicant taken within 30 days of the application, of such sizes as the Clerk may specify.
B. 
Each application shall be accompanied by an application fee in accordance with a schedule to be established by the Town Council.
Each applicant for a massage therapist license or combined massage establishment/massage therapist license shall show proof of basic proficiency in the field of massage therapy which may be satisfied by:
A. 
Evidence of completion of a formal training course in massage therapy given by a recognized school;
B. 
Evidence of 100 hours of on-the-job training in 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 of South Berwick;
C. 
Evidence of continuous practice as a massage therapist for at least one year, accompanied by the written recommendation of at least five persons holding a valid massage therapy license or a combined massage establishment/massage therapist license issued by the Town of South Berwick, which shall state that said person has personally received a massage from the applicant that was administered in a skilled and professional manner; or
D. 
Evidence of successful completion of a certifying exam given by another municipality or state, or of the certifying exam given by American Massage Therapy Association.
A. 
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 article. All names, including but not limited to maiden name, ever used by the applicant must be noted on the application.
B. 
Any license so secured shall be void.
No person shall make use of, in any manner, to his or her own or another's benefit, any license which has not been duly issued to him or her in accordance with this article.
A. 
Any person presently operating as a massage therapist and/or operating a massage establishment in South Berwick as defined herein on the effective date of this article shall comply with the terms of this article by obtaining a license hereunder within three months of the effective date of this article.
B. 
Any person who has held a valid massage establishment license issued by the Town of South Berwick within the last year, which license has not been suspended or revoked, or provides evidence of continuous practice as a massage therapist for the preceding year shall not be required to comply with § 95-15 if application for a license hereunder shall be made within three months of the effective date of this article.
In the event that any section, subsection, or any portion of this article shall be declared by any competent court to be invalid for any reason, such declaration shall not be deemed to affect the validity of any other section, subsection or portion of this article.
This article shall be enforced by the South Berwick Police Department. The violation of any provision of this article shall be punished by a fine of not less than $250 nor more than $500 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.
The South Berwick Town Council finds that the Maine Legislature has enacted a statute defining and regulating the professional practice of massage therapy, Chapter 127 of Title 32 of the Maine Revised Statutes; and one of the apparent purposes of the state statute is to differentiate between the professional practice of massage therapy regulated by the Maine Department of Professional and Financial Regulation and other businesses offering services which appear similar to massage therapy, sometimes called "massage" or "relaxation therapy" and provided in establishments sometimes called "massage parlors" or "health clubs" or "spas." The Town Council determines that it is in the public interest to regulate such establishments in order to prevent unsafe conditions, prevent the spread of disease and avoid the presence in the community of establishments which if unregulated could become locations of illegal or illicit activities. The Town Council determines that it is appropriate to regulate such businesses separately from the regulation of professional massage therapy.
The purpose of this article is to regulate services which appear similar to massage therapy as defined in and regulated by Chapter 127 of Title 32 of the Maine Revised Statutes but which are not regulated under that chapter (hereinafter "para-massage").
For the purpose of this article, the following shall apply unless the context clearly implies otherwise:
DISQUALIFYING CRIMINAL CONVICTION
Any conviction for any criminal offense punishable by imprisonment for any period of time, whether or not the sentence was imposed or served, but not including any conviction which is shown to have been set aside on appeal or collaterally, or for which a pardon, certificate of rehabilitation, or the equivalent under the law of the sentencing jurisdiction has been granted, or which is not rationally related to the purpose of licensing para-massage establishments.
MASSAGE THERAPY
The professional practice of massage therapy as defined in 32 M.R.S.A. § 14301(4).
PARA-MASSAGE
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, and which is not massage therapy.
PARA-MASSAGE ESTABLISHMENT
Any business, including but not limited to sole proprietorship, in which the business operation consists of providing or making available para-massage 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 limits of the Town.
PARA-MASSAGER
Any person who performs a para-massage for consideration or gratuity or with the expectation of receiving consideration or any gratuity.
PATRON
Any person who receives a para-massage.
PERSON
Any individual, partnership, corporation or other entity.
The following shall be exempt from this article while duly licensed or registered under and practicing in accordance with the laws of this state: massage therapists as defined in 32 M.R.S.A. § 14301(3), physicians, physicians' assistants, surgeons, osteopaths, nurses, chiropractors, physical therapists, barbers, cosmetologists, beauticians and other health and hygiene professionals.
All para-massages shall be administered on a massage table, treatment table or treatment mat.
Every person who conducts or operates a para-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.
A. 
No para-massager shall administer a para-massage to a patron whose genitals are exposed.
B. 
No para-massager shall administer or agree to administer a para-massage to the genitals or anus of patron.
C. 
No para-massager shall administer a para-massage unless he/she is fully clothed with nontransparent clothing.
No para-massage establishment shall be kept open between the hours of 9:00 p.m. and 8:00 a.m.
At all times when open for business, a para-massage establishment shall have upon the premises a licensed para-massager or person who possesses a combination para-massage establishment/para-massager license who shall be available to supervise the operation of the establishment and assure that no violations of this article occur.
A para-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 the Town Clerk or the Clerk's representative, upon request.
The South Berwick Town Clerk is the licensing authority for this article. Decisions of the Town Clerk are appealable to the Town Council no later than 30 days after the Clerk has rendered his/her decision.
A. 
Establishment license. No person shall operate a para-massage establishment without first having obtained a valid para-massage establishment license under this article. A separate license shall be required for each para-massage establishment.
B. 
Para-massager license. No person shall work as a para-massager without a valid para-massager license or a combined para-massage establishment/para-massager license.
C. 
Combined establishment/para-massager license. A sole practitioner who employs no para-massager other than himself/herself may apply for a combined para-massage establishment/para-massager license.
A valid para-massage establishment license shall be displayed at all times in the para-massage establishment for which it was issued. A valid para-massager license or a combined para-massage establishment/para-massager license must be readily available to be produced immediately if demanded of the licensee.
Each application shall be accompanied by an application fee in accordance with a schedule to be established by the Town Council.
Any person desiring a license pursuant to this article shall file a written, signed application with the Town Clerk on a form to be furnished by the Town Clerk. An application for a combined para-massage establishment/para-massage license or for a para-massager license shall be accompanied by two front-face photographs of the applicant taken within 30 days of the application, of such sizes as the Clerk may specify.
A. 
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 article. All names, including but not limited to maiden name, ever used by the applicant must be noted on the application.
B. 
Any license secured by fraud, deceit or concealment shall be deemed to be null and void.
C. 
No person shall make use of, in any manner, to his/her own or another's benefit, any license which has not been duly issued to him/her in accordance with this article.
A. 
Para-massage establishment license. The Clerk may deny a license for a para-massage establishment if he/she finds that:
(1) 
The applicant does not have a legal right to occupy the premises for which the license is sought;
(2) 
The premises, business or activity are not in compliance with other local ordinances;
(3) 
The applicant is a corporation that is not registered to do business in the state;
(4) 
Any principal officer of the corporation or any person having an actual ownership interest or management authority therein, or the applicant, if other than a corporation, has a disqualifying criminal conviction within the immediately preceding five years.
B. 
Para-massager, combined para-massage establishment/para-massager. The Clerk may deny a license for a para-massager or combined para-massage establishment/para-massager for the following reasons:
(1) 
The applicant had a disqualifying criminal conviction at any time during the five years immediately preceding application; or
(2) 
The applicant is not at least 18 years of age.
C. 
The Clerk shall make and shall keep a written record of each decision to deny an application for any license under this article.
A. 
All licenses. In addition to the grounds for denial as set forth in § 95-36, any license may be suspended or revoked upon a determination that the licensee:
(1) 
Failed to notify the Clerk of any change in material facts set forth in the application for such license; or
(2) 
Violated any provision of this article.
B. 
Para-massage establishment or combined para-massage establishment/para-massager license. In addition to the provisions of § 95-37A, a para-massage establishment license or combined para-massage establishment/para-massager license may be suspended or revoked upon a determination that the licensee:
(1) 
Permitted any person to perform a para-massage without a valid license to do so;
(2) 
Permitted or allowed an employee or para-massager to violate any provisions of this article on the premises of the para-massage establishment or in the course of conduct of the business of the para-massage establishment; or
(3) 
Knowingly permitted any violation of 17-A M.R.S.A. §§ 851 and 855. Such knowledge shall be presumed if there have been two or more convictions for any such offense within any one-year period. The applicant or licensee may rebut said presumption by showing that due diligence was exercised to prevent the recurrence of any such offense and, despite such diligence, he or she did not know and could not reasonably have known of any subsequent offense.
Any person presently operating as a para-massager and/or operating a para-massage establishment in South Berwick on the effective date of this article shall comply with the terms of this article by obtaining a license within 60 days of the effective date.
In the event that any section, subsection, or any portion of this article shall be declared by any competent court to be invalid for any reason, such declaration shall not be deemed to affect the validity of any other section, subsection or portion of this article.
The violation of any provision of this article shall be a civil violation punished by a fine of not less than $250 nor more than $500 for each offense. Each act of violation and every day upon which any such violation occurs shall constitute a separate offense. In addition to such penalty, the Town may enjoin or abate any violation of this article by appropriate action.
The enforcement of this article shall be by the South Berwick Police Department.