City of New Haven, Indiana

                               CHAPTER 117:  MASSAGE AND NUDE MODELING

Section

117.01 Definitions

117.02 Establishment License Required

117.03 Exemptions

117.04 Applicant for Establishment License

117.05 Issuance of Licenses

117.06 Cause for Denial, Revocation or Suspension of License

117.07 Hearings and Appeals

117.08 License Location

117.09 Transfer of License

117.10 Facilities Necessary

117.11 Operating Requirements

117.12 Persons Under Age Twenty-One (21) Prohibited on Premises

117.13 Hours

117.14 Inspection Required

117.15 Unlawful Acts

117.16 Name and Place of Business

117.17 Time Limit for Filing

117.18 Violation and Penalty

117.19 Maintaining Public Nuisance

117.20 Severability

117.21 Current Establishments

'117.01           DEFINITIONS

For the purposes of this Chapter, the following words and phrases shall have the meanings respectively ascribed to them by this Section.

(A)  Body Work Practitioner.  Any person who:

(1)  Submits a certificate by a licensed physician, chiropractor, or osteopath who           practices in Allen County, Indiana, that the person is competent and efficient as a body work        practitioner; or

(2)  Who holds a diploma or other certificate of graduation from a recognized school     of massage.

(B)  Employee.  Any person who renders any service or transacts any sales in connection with the operation of a massage, nude modeling, or adult novelty establishment and receives compensation from the operator of the business or patrons.

(C)  Massage.  Any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the human body with the hands or with any portion of the body or with the aid of any mechanical, electrical or other apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointment or other such similar preparations commonly used in the practice of massage, under such circumstances that it is reasonably expected that the person to whom the treatment is provided or some third person on his or her behalf will pay money or give any other consideration or gratuity therefor. Massage shall also mean the giving, receiving, or administering of a bath to any person, or the application of body paint or other colorant to any person.

(D)  Massage Establishment.  Any establishment having a source of income or compensation derived from the practice of massage, as defined in subsection (C), and which has a fixed place of business where any person, firm, association, or corporation engages in or carries on any of the activities as defined in subsection (C). A massage establishment includes any establishment which would come under the above description, whether the establishment is called a nude modeling and conversation studio, massage parlor, health club, book store or by any other name.

(E)  Massagist.  Any person who, for any consideration whatsoever, engages in the practice of massage, as defined in subsection (C).

(F)  Nude Model.  Any person who, for any consideration whatsoever, engages in nude modeling.

(G)  Nude Modeling.  The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the nipple; or the showing of the covered male genitals in a discernibly turgid state. However, nude modeling at or on behalf of any properly accredited institution of higher learning shall not fall within this definition.

(H)  Nude Modeling Establishment.  Any place where a person appears in a state of nudity or semi-nudity, for money or any other form of consideration, to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition shall not include a person appearing in a state of nudity or semi-nudity doing so in a modeling class operated:

(1)        By a college, junior college, or university supported entirely or partly by             taxation;

(2)        By a private college or university which maintains and operates educational        programs in which credits are transferable to a college, junior college, or university supported         entirely or partly by taxation; or

(3)        In a structure:

(a)        Which has no sign visible from the exterior of the structure and no                      other advertising that indicates a nude or semi-nude person is available for viewing;                 and

(b)        Where, in order to participate in a class, a student must enroll at least                 three days in advance of the class.

(I)  Patron.  Any person who receives a massage or uses the services of a nude model under such circumstances that it is reasonably expected that such person will pay money or give other consideration therefor or any person who purchases an adult novelty item at an adult novelty establishment.

(J)  Person.  Any individual, partnership, firm, association, joint stock company, cooperation or combination of individuals of whatever form or character.

(K)  Recognized School of Massage.  Any properly accredited school or institution of learning which has for its purpose the teaching of the theory, ethics, practice, method, profession or work of massage technician and has a program which requires a resident course study of not less than one thousand (1,000) hours to be given in not less than six (6) calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning showing the successful completion of said course. Schools offering a correspondence course not requiring actual attendance at class shall not be deemed a recognized school.

(L)  Specified Sexual Activities.  Any of the following:

(1)  the fondling or other erotic touching of human genitals, pubic region, buttocks,         anus or female breasts;

(2)  sex acts, actual or simulated, including intercourse, oral copulation, masturbation,     sodomy, or bestiality; or

(3)  excretory functions as part of or in connection with any of the activities set forth       in (1) or (2) above.

[Ord. G-00-15, passed 1-9-01]

'117.02           ESTABLISHMENT LICENSE REQUIRED

(A)  It shall be unlawful for any person to engage in or carry out the business of massage unless that person has a valid establishment license issued by the City or qualifies for an exception pursuant to Section 117.03 for each and every separate office or place of business conducted by such person. A person who has a communicable or infectious disease shall not work in any establishment licensed under this Chapter.

(B)  Nude modeling establishments shall be prohibited.

[Ord. G-95-10, passed 7-25-95]

'117.03           EXEMPTIONS

This Chapter shall not regulate massages performed at the following establishments:

(A)  Hospitals, nursing homes, sanitariums or other health care facilities licensed under the State of Indiana.

(B)  Barbershops and beauty parlors, licensed under the laws of the State of Indiana, and/or employing licensed barbers or beauty culturists, provided that such massage as is practiced is limited to the head and scalp of the customer or client.

(C)  Accredited schools and colleges and not-for-profit corporations organized for educational, literary, scientific, religious or charitable purposes that are exempt for federal taxation under the Internal Revenue Code, and any organization that exclusively provides models for said schools, colleges and not-for-profit corporations.

(D)  Establishments owned and operated by body work practitioners and which employ only body work practitioners as massagists.

[Ord. G-95-10, passed 7-25-95]

'117.04           APPLICANT FOR ESTABLISHMENT LICENSE

Every applicant for an establishment license shall file an application under oath with the City of New Haven upon a form provided by the Chief of Police and pay a nonrefundable annual license fee, which shall be five hundred dollars ($500.00) per year. Copies of the application shall, within five (5) days, be referred to the Zoning Department, the Allen County Building Department, the Allen County Board of Health, and the New Haven/Adams Township Fire Department. The departments shall, within thirty (30) days after receipt of the application, inspect the premises proposed to be operated as a massage establishment, and shall make written verification to the Chief of Police concerning compliance with the codes of the City of New Haven or Allen County they administer. The Police Department shall further conduct an investigation of the applicant=s character and qualifications. Each application shall contain the following information:

(A)  A definition of service to be provided.

(B)  The location, mailing address and all telephone numbers where the business is to be conducted.

(C)  The name and residence address of each applicant (hereinafter all provisions which refer to applicant include an applicant which may be a corporation or partnership):

(1)  If applicant is a corporation, the names and residence addresses of each of the        officers and directors of said corporation and each stockholder owning more than ten per cent          (10%) of the stock of the corporation, and the address of the corporation itself, if different            from the address of the massage establishment.

(2)  If applicant is a partnership, the names and residence addresses of each of the         partners including limited partners, and the address of the partnership itself, if different from           the address of the massage establishment.

(D)  The two (2) previous addresses immediately prior to the present address of the applicant.

(E)  Proof that the applicant is at least twenty-one (21) years of age.

(F)  Individual or partnership applicant=s height, weight, color of eyes and hair, and sex.

(G)  Copy of identification such as driver=s license and social security card.

(H)  Two color portrait photographs of the applicant at least three (3) inches by three (3) inches. If the applicant is a corporation, two color portrait photographs at least three (3) inches by three (3) inches of all officers and managing agents of said corporation. If the applicant is a partnership, two color portrait photographs at least three (3) inches by three (3) inches in size of each partner, including a limited partner in said partnership.

(I)  Business, occupation or employment of the applicant for the three (3) years immediately preceding the date of the application.

(J)  The massage, nude modeling or similar business license history of the applicant; whether such person, in previously operating in this or another city or state has had a business license revoked or suspended in the last five (5) year, the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation.

(K)  All criminal convictions of applicant for the last five (5) years (or in the case of a partnership, each partner, or in the case of a corporation its manager, officers, directors, and shareholders owning more than ten percent (10%) of the stock of the corporation), other than misdemeanor traffic violations, but including all violations of this Chapter, with the dates of convictions, nature of the crimes and place convicted.

(L)  The name and address of any massage or nude modeling business or other establishment owned or operated by any person whose name is required to be given in subsection (C) wherein the business or profession of massage is carried on.

(M)  A description of any other business to be operated on the same premises and a description of any other business to be operated on adjoining premises, owned or controlled by the applicant.

(N)  A list of all employees of the establishment, including all massagists and any and all other employees, with the address, social security number, date of birth, next of kin, and two color portrait photographs at least three (3) inches by three (3) inches of each and every employee.

(O)  Authorization for the City, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the applicant for the permit.

Upon the completion of the above provided form and furnishing of all foregoing information and fees, the Chief of Police shall accept the application for the necessary investigations. The holder of an establishment license shall notify the Chief of Police of each change in any of the data required to be furnished by this Section within ten (10) days after such change occurs.

[Ord. G-95-10, passed 7-25-95]

'117.05           ISSUANCE OF LICENSES

(A)  Approval or denial of application.  The Chief of Police shall act to approve or deny an application for a license under this Chapter within a reasonable period of time, and in no event later than ninety (90) days from the date that said application was filed.

(B)  License must be issued.  The Chief of Police must issue a license unless he/she finds good cause for denying the license. Good cause for license denial may be based upon any of the reasons listed in Section 117.06.

[Ord. G-95-10, passed 7-25-95]

'117.06           CAUSE FOR DENIAL, REVOCATION OR SUSPENSION OF LICENSE

The Chief of Police may deny, revoke, or suspend an establishment license for the following reasons:

(A)  The correct license fee has not been tendered to the City.

(B)  The applicant for, or holder of, a license, if an individual; or any of the stockholders holding more than ten percent (10%) of the stock of the corporation; any of the officers and directors, if the applicant or license holder is a corporation; or any of the partners, including limited partners, if the applicant or license holder is a partnership; or the manager or any other person principally in charge of the massage establishment, has been convicted of any of the following offenses or convicted of an offense without the State of Indiana that would have constituted any of the following offenses if committed within the State of Indiana, in the past five (5) years:

(1)  An offense involving the use of force or violence upon the person of another that      amounts to a felony pursuant to the laws of the State of Indiana.

(2)  An offense involving sexual misconduct, which constitutes a felony or           misdemeanor under the laws of the State of Indiana.

(C)  The applicant for, or holder of, a license has knowingly made any false, misleading, or fraudulent statement of fact in the license application, or in any document required by the City in connection with this Chapter.

(D)  The applicant or license holder has had an establishment, massagist, or other similar permit or license denied, revoked, or suspended by the City or any other State or local agency within the past five (5) years.

(E)  The applicant, if any individual; or any of the officers and directors, if the applicant is a corporation; or any of the partners, including limited partners, if the applicant is a partnership; and the manager or other person principally in charge of the operation of the business, is not over the age of twenty-one (21) years.

(F)  The application was not completely filled out or the application was not correctly filled out.

(G)  The establishment would not comply with all applicable laws, including but not limited to, the City=s building, zoning, and health regulations, and with this Chapter.

(H)  Any person has committed, on the premises of the establishment, an act that would constitute prostitution pursuant to the laws of the State of Indiana, or any offense involving narcotics, dangerous drugs, or gambling, whether or not such person has been convicted of such prostitution, narcotics, dangerous drugs or gambling offense under the laws of the State of Indiana.

(I)  The establishment, or any employee of the establishment, has not complied with the provisions of this Chapter.

[Ord. G-95-10, passed 7-25-95]

'117.07           HEARINGS AND APPEALS

(A)  Denial of License.  Upon the determination by the Chief of Police that a license applied for ought not be issued, or a license issued should be revoked, a notice shall be sent to the applicant or licensee by certified mail stating the reason for the denial or revocation, and advising the applicant or licensee of the right to a hearing before the Board of Works to appeal the denial or revocation and the right to correct any defect in the application or premises.

(B)  Hearing. When a hearing is requested by an applicant or licensee, not less than ten (10) days written notice of such hearing shall be given to the applicant or licensee, which notice shall designate the time and place where the hearing will be held.

(C)  Rights Granted.  At a hearing conducted pursuant to this Chapter, the applicant or licensee shall have the right to be represented by counsel, to present witnesses, to testify and cross-examine any other witnesses, and to subpoena witnesses. Proceedings shall be conducted under oath.

(D)  Adverse Decision.  If any decision adverse to the applicant or licensee is made by the Board of Works, after a hearing as provided above, the Board of Works shall provide the applicant or licensee with a written reason for such decision.

[Ord. G-95-10, passed 7-25-95]

'117.08           LICENSE LOCATION

(A)  Display required.  All establishments, licensed under this Chapter, shall display their licenses in a visible location in the establishment for which the license was issued.

(B)  Annual Term.  Licenses shall be granted for an initial term ending May 31, next following the issuance of the license, unless sooner suspended or revoked. Such license must be renewed annually, and any renewal shall be for a term of one year from June to May 31.

[Ord. G-95-10, passed 7-25-95]

'117.09           TRANSFER OF LICENSE

A licensed establishment may be moved to another location providing:

(A)  The location meets all the requirements of this Chapter; and

(B)  The Chief of Police is notified in writing a minimum of thirty (30) days in advance of the move.

[Ord. G-95-10, passed 7-25-95]

'117.10           FACILITIES NECESSARY

No license to operate a massage or nude modeling establishment shall be issued unless an inspection by the City of New Haven reveals that the establishment complies with each of the following minimum requirements:

(A)  Construction of rooms used for toilets, tubs, steam baths and showers shall be made waterproof with approved waterproofed materials, and shall be installed in accordance with the Allen County Building Code.

(B)  The premise shall have adequate equipment for disinfecting and sterilizing nondisposable instruments and materials used in administering massages. Such nondisposable instruments and materials shall be disinfected after use on each patron.

(C)  Closed cabinets shall be provided and used for the storage of clean linen, towels and other materials used in connection with administering massages. All soiled linens, towels and other materials shall be kept in properly covered containers or cabinets, which containers or cabinets shall be kept separate from the clean storage areas.

(D)  Toilet facilities shall be provided in convenient locations. When employees or patrons of different sexes are on the premises at the same time, separate toilet facilities shall be provided for each sex. A single water closet per sex shall be provided for each twenty (20) or fewer employees or patrons of that sex on the premises at any one time. Urinals may be substituted for water closets after one water closet has been provided. Toilets shall be designated as to the set accommodated therein.

(E)  Lavatories or washbasins provided with both hot and cold running water shall be installed in each restroom. Lavatories or washbasins shall be provided with soap and a dispenser and with sanitary towels.

[Ord. G-95-10, passed 7-25-95]

'117.11           OPERATING REQUIREMENTS

(A)  Every portion of the massage establishment, including appliances and apparatus, shall be kept clean and operated in a sanitary condition.

(B)  Prices for all services shall be prominently posted in the reception area in a location available to all prospective customers. No service will be performed for which a price is not posted.

(C)  A separate dressing room for each employee and each patron must be available on the premises with individual lockers for each. Doors to such dressing rooms shall open inward and shall be self-closing.

(D)  All massage establishments shall be provided with clean, laundered sheets and towels in sufficient quantity, and shall be laundered after each use thereof, and stored in a sanitary manner.

(E)  No massage establishment granted a license under the provisions of this Chapter shall place, publish, or distribute or cause to be placed, published or distributed any advertisement, picture, or statement which is known or through the exercise of reasonable care should be known to be false, deceptive or misleading in order to induce any person to purchase or utilize any professional massage services.

[Ord. G-95-10, passed 7-25-95]

'117.12           PERSONS UNDER AGE TWENTY-ONE (21) PROHIBITED ON PREMISES

No person shall permit any person under the age of twenty-one (21) years to come to or remain on the premises of any massage establishment, as massagist, employee, or patron.

[Ord. G-95-10, passed 7-25-95]

'117.13           HOURS

No massage establishment shall be kept open for any purpose between the hours of 10:00 p.m. and 8:00 a.m.

[Ord. G-95-10, passed 7-25-95]

'117.14           INSPECTION REQUIRED

(A)  It shall be the duty of the Chief of Police through duly authorized representatives to inspect massage establishments from time to time to determine compliance with this Chapter.

(B)  Inspections are to be made at reasonable times, with due regard to the nature of the business to be inspected.

(C)  Upon showing the proper credentials, the representatives of the Chief of Police shall be entitled to inspect portions of the massage establishment open to the public to determine compliance with this Chapter.

[Ord. G-95-10, passed 7-25-95]

'117.15           UNLAWFUL ACTS

(A)  It shall be unlawful for any person, in a massage establishment, to place his or her hand or hands upon, to touch with any part of his or her body, to fondle in any manner, or to massage, a sexual or genital part of any other person.

(B)  It shall be unlawful for any person, in a massage establishment, to expose his or her genital parts, or any portion thereof, to any other person.

(C)  It shall be unlawful for any person to allow the sexual or genital parts of patrons of establishments required to be licensed under this Chapter to be exposed when in the presence of an employee or massagist.

(D)  It shall be unlawful for any person owning, operating or managing a massage establishment to cause, allow or permit on the premises of such establishment, any person to perform such acts prohibited in subsections (A) (B) or (C) of this section.

(E)  It shall be unlawful for any massage service to be carried on within any cubicle, room, booth, or area within a massage establishment which is fitted with a door capable of being locked.

[Ord. G-95-10, passed 7-25-95]

'117.16           NAME AND PLACE OF BUSINESS

No person granted a license pursuant to this Chapter shall operate the massage establishment under a name not specified in his/her license, nor shall he/she conduct business under any designation or location not specified in the license.

[Ord. G-95-10, passed 7-25-95]