Kentucky Regulatory Activity Report

After being caught by surprise by the Louisville Metro Council with the proposal of an ordinance to replace the 2007 Massage Establishment Ordinance that exempted LMTs, the local LMTs and their clients were unable to prevent the passage of this burdensome ordinance.

While 3 weird amendments were made by the council, there are still multiple problems with this ordinance for legitimate massage therapy providers. Prohibition against locking the front door and having a lock on inside doors raise major safety issues for groups not employing enough people to always have someone at the entrance. It is interesting to note that (E)(1) does say that this section on locking access “shall not apply to a massage facility if the massage facility is a business entity owned or operated by one individual with no employees or independent contractors present at the time of the massage services.” Also that in subsection 115.193, the final clause says that a business with 1 individual and no employees/independent contractors does not have to post the “Required Slavery and Human Trafficking Notices.”

At this point the problems of vagueness (how many licenses required if several independent practitioners rent a suite together? 1, or 1 for each?), inspections, the registry of clients fully identified with their services and prices paid, the annual license fee of $200 plus fingerprinting and the cost of the inspections, the title implying that LMT’s are the problem in human trafficking, and several vague sections.

On January 16, myself, James Specker (AMTA National GR Director), and Sarah Wood (Babbage Cofounder lobbyist) met with Connie Mendal, Chief Health Strategist for Louisville Metro Dept of Health and Wellness to get some clarifications. Ms. Mendal noted that the health department will be doing the inspections. By Jan 30, she expects the Health Dept website to have a page with information on this ordinance and the application for massage business licenses. There will be a 60-day window to apply, after which the business will be subject to late fees, penalties and closure if operating without the license. https://louisvilleky.gov/government/health-wellness Ms. Mendal did clarify that if all the therapists at a location are working under one business name, only the business is required to have a facility license, not each therapist. But if they are operating separately (each individual LMT is paid by the client, not the business and the LMT’s simply rent the space together) then each LMT needs to have their own facility license. If an LMT is not incorporated or holding any registered LLC designation, and are working individually, not presenting themselves as a “business” then they do not need the license (ie those of us who work with no signage or advertisement).

Health inspections are unscheduled. If there are multiple licensed businesses at one location, they will likely inspect them during the same visit. They will wait if a session is in progress until the client is dressed and off the table. They will initially target inspections at businesses which have had a complaint, and those without an LMT will be closed and reported to KBLMT. Our state licenses must be posted “in a conspicuous place within the facility.”

She insists that Patron Registries (or logs) are a huge deterrent in illicit massage businesses. The Health Dept inspector will simply ask if the business has and maintains a patient registry, and will not ask to see it unless something is amiss. The registry must list the client 1 st and last name, therapist 1 st and last name, date of service and type o service provided. In states with massage establishments regulated by the state, the businesses can generate this from their online massage booking service. Natalie Johnson, city attorney for the metro council said that the registry must include clients back to the “inception” of the business. I pointed out that our state law only requires us to keep client records for 5 years, so many of us have purged records of clients who have not had a service in the past 5 years. She did not have a reply. Those of us not using a computer booking/bookkeeping system are will need to put the registry together prior to being inspected. There were enough organized protests to have 3 changes made to the original proposal when it was passed in November:

–p. 3, Definitions: Struck “buttocks” and “breasts” from the definition of Sexual and Genital Parts. This now reads: “Includes the genitals, pubic area, anus, perineum, or vulva of any person.”

–p. 11, Section 115.183: struck the restriction on the number of security cameras to only 2 and requiring 1 to face the main entrance. Added after Each massage facility is “required to have video surveillance at all exterior entrances/exits, and are prohibited from having interior cameras.”

–p. 13, Section 115.184 (E): Added the underlined phrase: Any contact with a patron’s sexual or genital areas is strictly prohibited unless under direct orders of a licensed medical professional. **Please note that it is strictly forbidden by our state licensing law and regulations, with or without a medical referral or instruction, to massage the genitals and other parts defined as sexual in the definition of this ordinance. Our regulations also require specific training and written permission from the client to do breast massage (as in post-surgical situations). Both the assistant city attorney and Ms. Mendal agreed that this underlined amendment should be removed immediately. Otherwise, the council and taskforce that worked on this misguided ordinance plan to not accept any amendments until the ordinance has been operating “6-12 months.” AMTA-KY chapter’s lobbyist and his firm did work hard in November to talk to all council members and try to delay this bill until it was more fully vetted by the local massage community. This was unsuccessful, and Mr. Babbage communicated with me in Dec. that he was stunned by the “tangents” all council members were capable of taking when discussing the ordinance. He is continuing to work with me, at this point working on arranging a meeting with city administration outside of the council. Hopefully soon we will have a general meeting with representatives of the mayor’s office, ABC officials, the state Human Trafficking Task Force, and the 3 “organizers” of the Alliance of Licensed Massage Therapists of Greater Louisville (now 71 members). I am one of the organizers, and do not purport to represent AMTA in these meetings, but do make it clear that I will relay info to AMTA and ask for resources, as so many AMTA members are in the Metro area. The other thing to note: The KY Legislature is now in session. Bob Babbage sent Ann Boone and I a bill to read that intends to amend our licensing law on the state level, and this bill is supported by the state league of cities. It gives cities and local governments authority to regulate the businesses of licensed massage therapists. It also raises the level of violation for working without a license to a Class A misdemeanor, adding that “Each session shall constitute a separate offense.” Our members need to be vigilant about their renewals. This would be much more problematic if a local inspector notes an expired license.

Bob has noted that cities in northern KY have problems with illicit “massage” establishments, and we have already seen this pop up in Bowling Green as well as Louisville. It’s clear that we are probably not going to successfully get “massage” taken out of local anti-trafficking and prostitution ordinances without some kind of major pro-active long-term campaigning.

In the meantime, the Alliance (including AMTA members) and Bob will continue to chip away at this ordinance for clarity and the protection of our practitioners and clients.

Denise Logsdon, MS, LMT