Agenda Item 5
March 17,2015
Public Hearing
MEMORANDUM
March 13,2015
TO:
County Council
FROM:
Robert H. Drummer, Senior Legislative
Attorney
;[;J
SUBJECT:
Public Hearing:
Bill 9-15, Health and Sanitation - Bodywork Establishment ­
License
Bill 9-15, Health and Sanitation - Bodywork Establishment - License, sponsored by the
Council President at the request of the County Executive and Councilmembers Hucker, Katz, and
Rice, was introduced on March 3. A joint Health and Human ServiceslPublic Safety Committee
worksession is tentatively scheduled for March 26 at 9:30 a.m.
Bill 9-15 would define bodywork as the practice of using one's hands to apply pressure on
an individual's fully clothed body or bare feet to affect the electromagnetic energy, energetic field,
or energy meridians of the human body. Bodywork includes the practice of reflexology or
acupressure. The Bill would require a license to operate a bodywork establishment in the County.
The Department of Health and Human Services would issue the license to operate a bodywork
establishment and the Police Department would be authorized to enforce the law.
Background
Many establishments have emerged in the County as fronts for human trafficking while
advertising themselves as performing reflexology, acupressure, or other similar practices that do
not fit the State definition ofmassage. The intent ofBill 9-15 is to permit legitimate establishments
that practice bodywork to continue while preventing illegal human trafficking operations from
operating in the County under the pretext of practicing bodywork. The Executive explained the
purpose of the Bill in his transmittal memorandum at
©
13
and in the Legislative Request Report
at ©1l-12.
This packet contains:
Bill 9-15
Legislative Request Report
Executive Transmittal Memorandum
Circle
#
1
11
13
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Bill No.
9-15
Concerning: Health and Sanitation ­
Bodywork Establishment - License
Revised: March 11. 2015 Draft No. _4__
Introduced:
March 3, 2015
Expires:
September 3,2016
Enacted: _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ __
Sunset Date: -'N<...:.:o::.:..n""'e_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the request of the County Executive and Councilmembers Hucker, Katz,
and Rice
AN ACT to:
(1)
(2)
(3)
(4)
(5)
require a license to operate a bodywork establishment
in
the County;
define bodywork;
authorize the Department of Health and Human Services to issue a license to operate
a bodywork establishment;
authorize the Police Department to enforce the law; and
generally regulate the operation ofa bodywork establishment
in
the County.
By adding
Montgomery County Code
Chapter 24, Health and Sanitation
Section 24-11 B
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Mary/and approves the following Act:
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BILL NO. 9-15
1
2
Sec. 1. Section 24-11B is added as follows:
24-11B. ·Bodywork Establishments.
3
{ill
Definitions.
As used in this Section, the following words and phrases
have the following meanings:
Bodywork
means the practice of using one's hands to apply pressure on
an individual's fully clothed body or bare feet to affect the
electromagnetic energy, energetic field, or energy meridians of the
human body.
acupressure.
Bodywork establishment
means any business that advertises bodywork
services or where any employee, agent, or contractor perfonns bodywork
on an individual.
Chiefmeans
the Chief of Police or the Chief's designee.
Director
means the Director of the Department of Health and Human
Services or the Director's designee.
Licensee
means an individual owner of
~
bodywork establishment or an
individual designated
Qy
the owner ifthe owner is not an individual.
Sexual activity
means any direct or indirect physical contact between
persons intended to erotically stimulate either person or both persons or
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5
6
7
8
9
Bodywork includes the practice of reflexology or
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12
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15
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20
21
22
is likely to cause such stimulation.
Sexual activity includes sexual
intercourse, fellatio, cunnilingus, anal intercourse, masturbation, or
manual stimulation.
23
24
®
Scope.
This Section does not
m.m!Y
to:
ill
an individual with
~
license, registration, or other approval issued
25
Qy
the Board to provide massage under
§.
3-SA-OS of the Health
Occupations Article;
26
27
ill
an athletic trainer who:
o
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BILL
No. 9-15
28
(A)
is certified
1rr
~
nationally recognized athletic trainer
29
30
certification agency identified
1rr
the
Director and works
under the supervision of
~
physician, while functioning in
the athletic trainer's professional capacity;
ill)
31
32
33
is employed
1rr
an accredited educational institution, while
performing professional duties at that institution; or
34
(Q
is employed
1rr
~
professional
sports team, while treating
35
36
members of that team; or
ill
~
business in which every person who provides services is
§:
37
38
39
40
41
42
certified massage therapist or registered massage practitioner
under State law.
(£}
Bodywork establishment.
ill
License required
A bodywork establishment must have
~
license
issued
1rr
the Director under this Section. The licensee must be the
owner of the establishment. If the owner is not an individual, the
owner must designate on the application an individual as the
owner's representative. The owner's representative must consent
on the application to be so designated. The representative must
accept any notice sent to the owner under this Section. Ifthe owner
does not
~
any fme, penalty, or fee due under this Section, the
Director may collect the fine, penalty, or fee from the owner's
representative.
43
44
45
46
47
48
49
50
51
ill
Except as otherwise provided in this Section, the Director must,
with the assistance of the Police Department, review each
application and issue
~
bodywork establishment license if:
52
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BILL
No.
9-15
53
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55
(A)
the applicant meets the requirements of this Section and
completes
Director;
~
license application on
f!
form provided
Qy
the
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61
.au
(Q
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the bodywork establishment facility meets the minimum
standards set
Qy
Executive Regulation;
the applicant
~
an application fee and license fee; and
the establishment complies with all applicable zoning,
health, fire prevention, and building laws and regulations.
ill
The Director must conduct
f!
pre--licensing inspection of any
bodywork establishment, and may conduct other inspections
necessary to enforce this Section.
62
63
64
ill
ill
A bodywork establishment must continue to meet the minimum
standards set
Qy
regulation at all times.
Any person who operates
f!
bodywork establishment must permit
~
65
66
67
68
County police officer or the Director to enter the bodywork
establishment at any time during operating hours, and at any other
time in an emergency or when the establishment is occupied.
69
70
®
Any person who operates
~
bodywork establishment must not
71
72
73
allow
~
person to perform any sexual activity with another person
in the establishment.
ill
A bodywork establishment license has
~
term ofone year and must
be renewed annually.
74
75
76
tID
A bodywork establishment license;
(A)
must not be transferred from one person to another;
must not be transferred from one location to another
location until
~
license is issued for the new location; and
(Q
applies to
~
single location specified in the license.
77
.au
78
79
o
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BILL
No.
9-15
80
81
(2)
If an applicant for
~
bodywork establishment license does not own
the building where the establishment would be located, the
building owner must approve the use ofthe building as
~
bodywork
establishment on
~
form provided
Qy
the Director.
82
83
84
85
86
87
@
Bodywork establishment licensee.
ill
The licensee, if an individual, or an owner's representative
designated under subsection (c)(l)(A), must
®
submit proof of good health required
Qy
the Director;
be at least
.lli
years old;
have not been convicted
Q..b
pled guilty or nolo contendere
~
88
89
90
91
an
.{Q
or served any term of probation as
~
result of being
charged with a:
92
93
94
95
ill
(ii)
felony;
crime
involving
moral
turpitude,
including
solicitation, prostitution, and related crimes;
(iii)
violation of
~
controlled dangerous substances law;
or
96
97
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99
(iv)
violation ofany law regulating the practice of
~
health
occupation;
@
not permit an individual to perform bodywork services in
the establishment while under the influence of
prescribed drug or alcoholic beverage;
~
100
101
102
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104
non­
LID
provide
~
passport-size photograph, fingerprints, and
~
list
ofthe individual's occupation or employment for the
~years
before filing the application; and
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BILL
No.
9-15
105
106
107
!E)
if the applicant is not
~
United States citizen, provide
evidence of legal presence and employability in the United
States.
108
109
110
111
112
113
W
Executive Regulations.
The Executive must adopt an Executive
Regulation under Method
ill
establishing the minimum standards for
~
bodywork establishment and the application process. The Executive
must set application and license fees
Qy
Executive Regulation under
Method
ill
that substantially cover the cost ofadministering this Section. '
ill
Denial or Revocation
gf
license.
The Director may refuse to issue
license under this Section, and may suspend or revoke
~
~
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118
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license issued
under this Section, after
~
hearing for which reasonable notice has been
given, ifthe licensee or applicant:
ill
ill
ill
violates any provision ofthis Section;
submits fraudulent information in support of
~
license application
under this Section;
is convicted
Qb
or pleads guilty or nolo contendere
~
or is ordered
to serve
~
period ofprobation after being charged with:
(A)
~
~
felony;
crime involving moral turpitude, including solicitation,
.em
(Q
ill)
124
125
126
127
128
129
130
131
prostitution, and related crimes;
violation of
~
controlled dangerous substance law; or
violation of any law regulating the practice of
occupation;
~
health
ill
permits an individual to perform bodywork servIces
ill
the
establishment while under the influence of
~
non-prescribed drug
or alcoholic beverage; or
ill
is grossly negligent in the performance of bodywork.
G
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BILL
No.
9-15
132
133
134
135
136
137
138
139
(g)
Notice and opportunityfor hearing.
ill
Notice.
After finding that one or more grounds for denial,
suspension, or revocation of
~
license could exist, the Director may
serve
~
written notice on the licensee or applicant in person or
.by
regular mail, postage prepaid, addressed to the person's last known
address as maintained in the Director's file. Service on that person
.by
mail is effective
J.
days after mailing. The Director must also
post
~
written notice at
~
conspicuous place on the establishment
for which the license was or would be issued. The written notice
must, at
~
minimum:
(A)
state that the Director has found that the licensee or
applicant may be subject to denial, suspension, or
revocation;
140
141
142
143
144
145
<ID
(Q)
identify the specific grounds for the Director's findings; and
set g date for
~
146
147
hearing on denial of the application or
suspension or revocation of the license. The hearing must
be held at least.2. days after service ofthe Director's notice,
unless the parties
~
to an earlier date.
148
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150
ill
Hearing.
The Director or
g
designee may conduct the hearing. At
151
152
the hearing, the licensee or applicant may present evidence and
witnesses to refute the grounds cited
.by
the Director for denying
the application or suspending or revoking the license, and the
County and any other person may submit relevant evidence. The
relevant records of the Department are part of the hearing record.
Within
J.
days after the hearing closes, the person conducting the
hearing must render
~
decision in writing, giving the reasons for
the decision. That decision is final, subject to judicial review under
153
154
155
156
157
158
(j)
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BILL
No.
9-15
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161
162
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the Maryland Rules for review of administrative decisions in the
Circuit Court and the Court of Special Appeals.
ill
Failure to appear.
A licensee or applicant who after notice does
not appear at
~
hearing waives the right to
~
hearing and consents
to the action that the Director proposed in the notice. The Director
may deny the application or suspend or revoke the license as
proposed in the notice.
ill
Notice and Effective Date
gf
Suspension or Revocation.
The
Director's written decision must be posted at the office of the
Director and must be served on the licensee or applicant in person
or
12Y
regular mail, postage prepaid, addressed to the applicant or
licensee's last known address as maintained in the Department's
files. The Director must also post
~
written notice of the decision
at
~
conspicuous place on the establishment for which the license
was or would
be
issued. A suspension or revocation takes effect
on the day the Director's decision is delivered in person or posted,
whichever occurs first. To facilitate enforcement ofthis provision,
the Director may require the applicant or licensee to appear at the
Director's office at
~
specific time to receive
~.£QPY
ofthe decision
and be prepared to surrender the license. If
~
licensee or applicant
does not appear to receive the Director's decision, the Director's
decision is effective on the date and time the licensee or applicant
was directed to appear.
172
173
174
175
176
177
178
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180
181
182
183
184
ill
Surrender
gf
license and security.
When g license is suspended or
revoked, the Director must take custody of the suspended or
revoked license.
@
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BILL
No. 9-15
185
186
187
188
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190
191
192
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194
195
196
197
198
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200
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202
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204
(h)
Upon receipt of notice of g license revocation or suspension, unless
otherwise directed, the licerisee must, within 24 hours:
ill
ill
place the license in the mail, postage prepaid, addressed to the
Department; or
physically deliver the license to the Department.
ill
Ifthe Department does not receive g suspended or revoked license within
48 hours after notification, excluding weekends or
!!
legal holiday, or as
otherwise directed, the holder of the license violates this Section. In
addition
to
any other penalties that may be imposed, the Director or the
Chiefmay:
ill
ill
remove the revoked or suspended license from the business
location; and
close the place of business until the person operating the business
obtains g license.
ill
Appeals.
ill
Any person aggrieved
Qy
the denial, suspension, or revocation of
any license under this Section may seek judicial review under the
Maryland Rules for review of administrative decisions in the
Circuit Court and the Court of Special Appeals.
ill
Except as provided in subsection
Q1
the Director's decision to
deny g license must not be stayed pending appeal.
205
206
207
ill
Final administrative action that revokes or suspends
!!
license may
be stayed pending appeal only if:
(A)
the Court finds that the public health, safety, or welfare will
not be endangered during the appeal; and
208
209
210
211
ill)
an appropriate bond is posted.
®
Penalty.
A person has committed g class A violation ifthe person:
G
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BILL No.
9-15
212
213
ill
ill
violates any provision ofthis Section; or
submits fraudulent infonnation in support of
~
license application
under this Section.
214
215
216
Approved:
George Leventhal, President, County Council
Date
217
218
Approved:
Isiah Leggett, County Executive
Date
219
220
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk ofthe Council
Date
@
.
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LEGISLATIVE REQUEST
REPORT
Bill 9-15
Health and Sanitation- Bodywork Establishment- License
I.
Description:
Bill
9-15
would require a license to operate a bodywork establishment in
the County. "Bodywork" includes acupressure, reflexology, and other practices that fall
outside the State defmition of massage. The licenses will be issued by the Department
ofHealth and Human Services and enforced by both DHHS and the Police Department.
The law also provides general requirements for operators ofa bodyworks establishment
in the County and authorizes the Director of the Department of Health and HUman
Services to develop further regulations governing the minimum standards for these
establishments to ensure the health and safety ofpatrons.
Problem:
The Montgomery County Police Department has expressed concern
about the prevalence ofhuman trafficking and prostitution in Montgomery County. The
Human Trafficking Task Force was established to address this concern. According to
MCPD, Montgomery County is an attractive location for human traffickers because of
its relatively high per capita income. A trafficker, usually originating from another
state, will typically operate by establishing a seemingly legitimate business in
Montgomery County and using it as a venue for prostitution. These "legitimate
businesses" are most often massage parlors. Employees of the parlors rarely possess a
massage license, as required by the State and County.
II.
When MCPD stepped up enforcement and prosecution of the establishments for
unlicensed practice of massage, they ran into several problems, two of which are
addressed by the legislation. First, traffickers quickly learned that they could evade
licensing requirements by holding themselves out as "reflexologists" or
"accupressurists"-- practices that fall outside the state definition of "massage" for
licensing purposes. Second, successful prosecution of an unlicensed massage charge,
either criminally or civilly, did little prevent the continued operation of these facilities
because the penalties are minimal in light of the effort involved in prosecution and the
amount of money to be made in prostitution. Nothing in current law prevented
traffickers from opening up a new massage or reflexology parlor in the county, even
after prosecution for unlicensed massage. As a result, MCPD found itself dealing with
a constant stream of reoffenders, straining enforcement resources, and neither the
Department of Health and Human Services, which licenses massage parlors in the
County, nor the Department of Permitting Services, which issues Use
&
Occupancy
Permits, had sufficient authority to assist.
III.
Goals
and
Objectives:
The Human Trafficking Task Force is recommending this Bill
in order to address gaps in the current law, making Montgomery County a less attractive
location for human traffickers and improving collaboration and enforcement ability
@
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between the Department of Health and Human Services, the Department of Pennitting
Services, and the Police Department.
The Task Force is also recommending a companion Zoning Text Amendment, changes
to the existing Executive Regulations related to licensure of massage parlors, and new
Executive Regulations as required by this Bill, if passed.
IV.
Coordination:
Montgomery County Police Department
Department of Health and Human Services
Department of Permitting Services
Office of the County Attorney
To be provided
V.
Fiscal Impact:
VI.
VII.
Economic Impact:
To be provided.
Subject to the general
Evaluation of the Results of the Proposed Law:
oversight of the County Executive and County Council.
VITI.
According to MCPD, other municipalities around the
country have successfully reduced human trafficking in their jurisdictions by
strengthening local regulation of massage as well as acupressure, reflexology, and
related services.
Experience Elsewhere:
IX.
Sources of Information:
Sgt. Kenneth Penrod, MCPD, Vice and Intelligence Unit
Russell Hamill, MCPD, Assistant Chief
Ehsan Motazedi, Department of Permitting Services
Hadi Mansouri, Department of Pennitting Services
Clark Beil, Department of Health and Human Services
Kristen Kalaria, Office of the County Attorney
Jim Savage, Office of the County Attorney
X.
Application within Municipalities:
This Bill amends Chapter 24, which applies in the
following municipalities: Barnesville, Brookville, Chevy Chase Village, Chevy Chase
View, Chevy Chase Sec. 3, Town of Chevy Chase, Chevy Chase Sec. 5, Town of Garrett
Park, Town of Glen Echo, Village of Martin's Addition, Village of North Chevy Chase,
City of Takoma Park, and Town of Washington Grove.
XL
Penalties:
Class A Violation, subject to fines and penalties as defined by Section
1-19 of the County Code.
2
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OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE. MARYLAND 20850
Isiah Leggett
MEMORANDUM
February 3, 2015
County Executive
TO:
George Leventhal, President
CoWlty COWlcil
Isiah Leggett, County Executive
Bodywork Establishment - License
FROM:
SUBJECT:
I am writing to request that you introduce the attached bill and Zoning Text
Amendment
(ZT
A) that would impose regulations on ''bodyworks'' establishments, which have
become a common venue for human trafficking in Montgomery CoWlty.
Maryland's centra1location and Montgomery County's proximity to airports and
Interstate-95 has facilitated its development as both a pass-through state and a destination for
human traffickers. Traffickers utilize our highways and airports to connect victims to major east
coast locations such as Montgomery County, Baltimore, and Washington, D.C. The victims in
human trafficking are typically young women who are forced into lives they didn't choose and
have no way of escaping. By passing this bill, you will give our Police Department an effective
and much needed tool to make inroads against this crime.
The proposed bill will require a license to operate a bodywork establishment in
the COWlty. "Bodyworks" establishments are businesses that advertise bodywork services, such
as reflexology, acupressure and other practices that fall outside the State definition ofmassage,
or where any employee, agent or contractor performs bodywork on an individual. Many
bodyworks establishments have emerged as fronts for human trafficking after the State began
regulating massage parlors. This bill will ensure that legal establishments can operate while
providing enforcement against illegal establishments. The ''bodyworks'' licenses will be issued
by the County's Department ofHealth and Human Services (DHHS), and enforced by both
DHHS and the Police Department.
.
The nature of human trafficking keeps changing. We must adapt our laws to keep
up and to empower our law enforcement agencies with the tools they need to protect the innocent
lives of those forced into prostitution and to punish those who would destroy the lives of these
victims. Your ,assistance is appreciated
ILIkk
Attachments
montgomerycountymd.gov/311
'
..
".
240-773-3556 TTY
'3
. .
(,
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