Section 30-15-401.4 - Statewide policy to prevent the operation of illicit massage businesses - local regulation authorized - background checks required - legislative declaration - definitions(1)(a) The general assembly finds and declares that:(I) Illicit massage businesses present a facade of legitimate services, concealing that the primary business is the sex and labor trafficking of victims who are trapped in these businesses;(II) Human trafficking is a growing problem throughout Colorado;(III) All local governments in the state already have authority to enact resolutions or ordinances to establish licensing authorities to regulate or otherwise regulate massage facilities and to deter and shut down illicit massage facilities; and(IV) Because preventing the operation of illicit massage facilities by requiring current and prospective operators, owners, and employees of massage facilities to submit to periodic background checks is a matter of statewide concern and licensing and other regulation of massage facilities is a matter of mixed statewide and local concern that local governments have significant discretion to address in accordance with local needs, it is necessary, appropriate, and in the best interest of all Coloradans to: (A) Require, uniformly throughout the state as a matter of statewide policy, that every current and prospective operator, owner, and employee of a massage facility submit to a background check, which generally means a fingerprint-based criminal history record check, as required by this section; and(B) Require every local government in the state that has a massage facility within its jurisdictional boundaries to establish a local process that ensures that the background checks are conducted throughout the state in accordance with the requirements and limitations set forth in this section.(V) [Repealed by 2024 Amendment.](VI) [Repealed by 2024 Amendment.](VII) [Repealed by 2024 Amendment.](VIII) [Repealed by 2024 Amendment.](b) The general assembly further finds and declares that: (I) A local government may adopt a resolution or ordinance to establish business licensure requirements to regulate massage facilities or to regulate and prohibit unlawful activities for the sole purpose of deterring illicit massage businesses and preventing human trafficking;(II) It is critical for effective local enforcement against human trafficking that local governments work together against this increasing criminal activity;(III) Licensing authorities and local law enforcement agencies are encouraged to report to the department of regulatory agencies information regarding criminal activities involving massage therapists;(IV) Most licensed massage therapists in Colorado are practicing lawfully and ethically; and(V) The general assembly does not intend to make the practice of lawful massage therapy more difficult for massage therapists in Colorado.(2) As used in this section, unless the context otherwise requires:(a) "Advertise" means to publish, display, or disseminate information and includes, but is not limited to, the issuance of any card, sign, or direct mail, or causing or permitting any sign or marking on or in any building or structure or in any newspaper, magazine, or directory, or any announcement or display via any televised, computerized electronic, or telephonic networks or media.(a.3) "Applicant" means a person who has submitted an application to a licensing authority for an initial license or renewal of a license to operate a massage facility.(a.5) "Background check" means a fingerprint-based criminal history record check conducted in accordance with subsection (4)(c.5) of this section and also includes, to the extent allowed or required, as applicable, by subsection (4)(c.5)(VI) of this section when a fingerprint-based criminal history record check cannot be completed or reveals a record of arrest without disposition, a criminal history record check using the Colorado bureau of investigation's records and a name-based judicial record check, as defined in section 22-2-119.3 (6)(d).(a.7) Except as otherwise provided in subsection (2)(a.7)(II) of this section, "employee" means: (I)(A) An individual who is employed by a massage facility; or(B) An independent contractor who is hired by a massage facility to perform work that is part of the routine operations of the massage facility.(II) For the purpose of determining who is required to submit to a background check required by subsection (4)(c.5) of this section, "employee" does not include: (A) A massage therapist; or(B) An independent contractor who performs janitorial services or other routine facility maintenance services for a massage facility and has no contact with or only incidental contact with clients of the massage facility.(b) "Erotic parlor" means a facility that entices clients through advertising or other business practices directed towards sexual desire, lust, or passion.(c) "Fully clothed" means fully opaque, nontransparent material that must not expose an employee's genitalia or substantially expose the employee's undergarments.(d) "Illicit massage business" means a business that may provide massage but engages in human trafficking-related offenses, as described in sections 18-3-503 and 18-3-504.(e) "Licensing authority" means the governing body of a local government or, if a local government has exercised its authority to adopt a resolution or ordinance that establishes licensure requirements for massage facilities or to regulate and prohibit unlawful activities related to massage facilities, any authority designated by the local government's charter or in a resolution or ordinance to administer or enforce the business licensure requirements, regulations, or prohibitions for massage facilities established by the local government.(e.5) "Local government" means a home rule or statutory county, A city and county, or a home rule or statutory municipality.(e.7) "Local law enforcement agency" means: (I) A county sheriff's office;(II) A municipal police department; or(III) A town marshal's office.(f) "Massage" or "massage therapy" has the same meaning as defined in section 12-235-104 (4).(g) "Massage facility" means any place of business where massage therapy or full body massage is practiced or administered.(h) "Massage therapist" has the same meaning as defined in section 12-235-104 (5).(h.3) "Operator" means a person that is licensed by a licensing authority to operate a massage facility in accordance with a local resolution or ordinance or a person that is operating a massage facility without a license within the territory of a local government that does not require licensure of massage facilities; except that, for the purpose of determining whether a person is required to submit to a background check required by subsection (4)(c.5) of this section, "operator" does not include a massage therapist.(h.5) "Owner" means a person other than an operator that holds a legal ownership interest in a massage facility; except that a person that is not involved in the operation of a massage facility and whose ownership interest consists only of stock in a publicly traded company that owns or operates a massage facility is not an owner.(i) "Person" means a natural person, partnership, association, company, corporation, or organization or managing agent, servant, officer, partner, owner, operator, or employee of any of them.(j) "Solo practitioner" means a licensed massage therapist, as defined in section 12-235-104 (5), performing the practice of massage therapy independently.(k) "Table shower" means an apparatus for the bathing or massaging of a person on a table or in a tub.(3)(a) In addition to any other powers, a local government may adopt a resolution or ordinance to establish business licensure requirements or to regulate and prohibit unlawful activities to prevent the operation of illicit massage businesses that engage in human trafficking-related offenses as described in sections 18-3-503 and 18-3-504. If a local government adopts a resolution or ordinance to establish business licensure requirements pursuant to subsection (4) of this section or to prohibit unlawful activities pursuant to subsection (5) of this section, the resolution or ordinance must not be more restrictive than the requirements set forth in this section.(b) When developing a resolution or ordinance for adoption pursuant to this section, a county and a municipality within the county shall consult with each other. By mutual agreement between a county and a municipality within the county, a municipality may elect to have a county's resolution or ordinance adopted pursuant to this section apply to massage facilities operating within the jurisdictional boundaries of the municipality in lieu of adopting its own ordinance or resolution.(c) A local government is not required to adopt a resolution or ordinance as otherwise required by this subsection (3) if there are no massage facilities operating within the jurisdictional boundaries of the Local government.(3.5) Except as otherwise provided in subsection (3)(c) of this section, a local government shall establish a process, which may be established by resolution or ordinance or otherwise, to require that, as a condition for a person remaining as or becoming an operator, owner, or employee:(a) A person who is an operator, owner, or employee on the effective date of the resolution or ordinance submit to a background check on or before the earlier of October 1, 2025, or any other date specified by a local government in its process;(b) A prospective employee submit to a background check before commencing employment with a massage facility; and(c) A prospective operator or owner submit to a background check at least thirty days before, as applicable, being granted a license to operate a massage facility or assuming an ownership interest in a massage facility that would make the prospective owner an owner.(4)(a)If a local government adopts a resolution or ordinance to establish business licensure requirements for massage facilities as set forth in subsection (3)(a) of this section, the business licensure requirements may only include: (I) Requiring that a massage facility obtain a license prior to opening for business and operating as a massage facility;(II) Requiring a reasonable administrative fee not to exceed one hundred fifty dollars for issuing or renewing licensure applications. The fee must not be based on the number of employees. This subsection (4)(a)(II) applies only to new businesses applying for a license or renewal on or after August 10, 2022. Businesses that hold a license before August 10, 2022, are exempt from the administrative fees described in this subsection (4)(a)(II).(III) Designating a licensing authority to receive, review, approve, or deny applications;(IV) Allowing a licensing authority or a licensing authority's designee to deny an application if: (A) A required administrative fee is not paid;(B) The local government zoning or subdivision regulations do not allow for the operation of a massage facility;(C) The applicant or an owner, prospective owner, or employee has been convicted of or entered a plea of guilty or nolo contendere that is accepted by the court for a felony or misdemeanor for solicitation of a prostitute, as described in section 18-7-202; a human trafficking-related offense, as described in section 18-3-503 or 18-3-504; money laundering, as described in section 18-5-309; (D) The applicant or an owner, prospective owner, or employee is registered as a sex offender or is required by law to register as a sex offender, as described in section 16-22-103;(F) The applicant has one or more previous revocations or suspensions of a license to operate a massage facility;(G) An employee of the massage facility for which the applicant has filed an application for a license has not submitted to a required background check before commencing employment with the massage facility pursuant to subsections (4)(c) and (4)(c.5) of this section; or(H) The applicant or an owner or prospective owner of the massage facility for which the applicant has filed an application for a license has not submitted to a required background check pursuant to subsections (4)(c) and (4)(c.5) of this section at least thirty days before, as applicable, being granted a license to operate the massage facility or assuming an ownership interest in a massage facility that would make the prospective owner an owner.(V) Allowing a licensing authority or a licensing authority's designee the discretion to deny an application after considering, in accordance with section 24-5-101, an applicant's, owner's or prospective owner's, or employee's or prospective employee's conviction of or plea of guilty or nolo contendere that is accepted by the court for a felony or a misdemeanor for fraud or theft or embezzlement, as described in section 18-4-401;(VI) Requiring licensees to maintain a list of employees on site with the start date of employment, full legal name, date of birth, home address, telephone number, and employment position of each employee;(VII) Requiring licensees and employees to have valid government identification, including but not limited to a form of identification described in section 24-21-521 (4)(a) and, for licensed massage therapists, a form of identification required for licensed massage therapists as described in section 24-34-107 (1), that must be immediately presented to a licensing authority or the licensing authority's designees upon request;(VIII) Requiring licensed massage therapists to maintain copies of valid massage therapy licensure, as required by article 235 of title 12, that must be immediately presented to a licensing authority, the licensing authority's designees, or law enforcement upon request;(IX) Requiring licensees to maintain a complete set of records, which may include accounts, invoices, payroll, employment records, and a log book of all massage therapy administered at the massage facility. The log book must include, but need not be limited to, the date, time, and type of massage therapy administered, and the name of the massage therapist administering the massage therapy. The licensee shall retain the records in the log book for a minimum of one year following the administration of massage therapy. Local law enforcement or the licensing authority, or the licensing authority's designee, may inspect the set of records during business hours.(X) Designating the licensing authority, or the licensing authority's designees, responsible for the enforcement of the resolution or ordinance;(XI) Setting penalties for the violation of prohibited activities as described in subsection (5) of this section; (XI.5) Granting the licensing authority, or the licensing authority's designees, authority to revoke or suspend a license if: (A) The licensee employs a person who has not submitted to a background check or an owner of the massage facility has not submitted to a background check as required pursuant to subsections (4)(c) and (4)(c.5) of this section;(B) The licensee employs a person who has been convicted of or entered a plea of nolo contendere that is accepted by the court for an offense listed in subsection (4)(a)(IV)(C) of this section or is registered as a sex offender or is required by law to register as a sex offender, as described in section 16-22-103; or(C) An owner of the licensed massage facility has been convicted of or entered a plea of nolo contendere that is accepted by the court for an offense listed in subsection (4)(a)(IV)(C) of this section or is registered as a sex offender or is required by law to register as a sex offender, as described in section 16-22-103; and(XII) Granting a licensing authority, or licensing authority's designees, the authority to revoke or suspend a license for violating prohibited acts pursuant to subsection (5) of this section. A licensing authority, or the licensing authority's designees, may temporarily suspend a license with a hearing to be scheduled within fifteen days when the licensing authority finds:(A) The licensee willfully failed to disclose any information on the application as required;(B) The licensee knowingly permitted a person who does not hold a valid license pursuant to section 12-235-107 to perform massage therapy;(C) A pattern of activity that the massage facility is committing human trafficking-related offenses, as described in sections 18-3-503 and 18-3-504; and(D) The licensee failed to permit an inspection at a time the massage facility was open for business.(b) The licensing authority may issue a temporary massage facility license upon receipt of a completed massage facility license application involving the sale or change of ownership in a business. The temporary massage facility license is valid for thirty days, and the licensing authority shall renew the temporary massage facility license every thirty days until approval or denial of the massage facility license.(c) In investigating the fitness of any applicant, owner or prospective owner, or employee or prospective employee, a licensing authority shall require the applicant, owner or prospective owner, or employee or prospective employee to submit to a background check in accordance with subsection (4)(c.5) of this section. When considering an applicant's, owner's or prospective owner's, or employee's or prospective employee's criminal history record, the licensing authority shall also consider any information provided by the applicant, owner or prospective owner, or employee or prospective employee regarding the criminal history, including, but not limited to, evidence of mitigating factors, rehabilitation, character references, and educational achievements, especially the mitigating factors pertaining to the period between the applicant's, owner's or prospective owner's, or employee's or prospective employee's last criminal conviction and the consideration of the applicant's, owner's or prospective owner's, or employee's or prospective employee's application for a license or renewal, ownership or prospective ownership of a massage facility, or employment or prospective employment by a massage facility.(c.5)(I) An applicant who holds a license or is applying for a license, an owner or prospective owner, or an employee or prospective employee shall submit to a fingerprint-based criminal history record check. The applicant, owner or prospective owner, or employee or prospective employee shall pay the costs associated with the fingerprint-based criminal history record check.(II) A person who is, as of the effective date of this subsection (4)(c.5), an applicant who holds a license, an owner, or an employee shall have the applicant's, owner's, or employee's fingerprints taken by a local law enforcement agency or any third party approved by the Colorado bureau of investigation for the purpose of obtaining a fingerprint-based criminal history record check no later than October 1, 2025. An applicant for a new license, a prospective owner, or a prospective employee shall have the applicant's fingerprints taken by a local law enforcement agency or any third party approved by the Colorado bureau of investigation for the purpose of obtaining a fingerprint-based criminal history record check before, as applicable, being granted a license, assuming an ownership interest in a massage facility that would make the prospective owner an owner, or commencing employment with a massage facility. The applicant, owner or prospective owner, or employee or prospective employee shall authorize the entity taking the Applicant's fingerprints to submit, and the entity shall submit, the complete set of the applicant's fingerprints to the Colorado bureau of investigation for the purpose of conducting a fingerprint-based criminal history record check.(III) If an approved third party takes the applicant's, owner's or prospective owner's, or employee's or prospective employee's fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved livescan equipment. Third-party vendors shall not keep the applicant's, owner's or prospective owner's, or employee's or prospective employee's information for more than thirty days.(IV) The Colorado bureau of investigation shall use the applicant's, owner's or prospective owner's, or employee's or prospective employee's fingerprints to conduct a criminal history record check using the bureau's records. The Colorado bureau of investigation shall also forward the fingerprints to the federal bureau of investigation for the purpose of conducting a national fingerprint-based criminal history record check. The Colorado bureau of investigation; The applicant, owner or prospective owner, or employee or prospective employee; the licensing authority; and the entity taking fingerprints shall comply with the federal bureau of investigation's requirements to conduct a fingerprint-based criminal history record check.(V) The Colorado bureau of investigation shall return the results of its criminal history record check to the licensing authority, and the licensing authority is authorized to receive the results of the federal bureau of investigation's criminal history record check. The licensing authority shall use the information resulting from the criminal history record checks to investigate and determine whether an applicant is qualified to hold a license or be an owner or employee pursuant to this section.(VI) When the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this section reveal a record of arrest without a disposition, the local licensing authority shall require the applicant to submit to a name-based judicial record check, as defined in section 22-2-119.3 (6)(d).(d) A licensing authority, or the licensing authority's designee, may report information to the department of regulatory agencies regarding criminal activity involving a licensed massage therapist.(4.5)(a) A person is prohibited from being an owner if the person either:(I) Has not submitted to a required background check at least thirty days before assuming an ownership interest in a massage facility that would make the prospective owner an owner pursuant to subsections (4)(c) and (4)(c.5) of this section; or(II) Has been convicted of or entered a plea of nolo contendere that is accepted by the court for an offense listed in subsection (4)(a)(IV)(C) of this section or is registered as a sex offender or is required by law to register as a sex offender, as described in section 16-22-103.(b) An operator or owner is prohibited from employing as an employee a person who has not submitted to a required background check pursuant to subsections (4)(c) and (4)(c.5) of this section.(c) An operator or owner that learns that a prospective employee or employee has been convicted of or entered a plea of nolo contendere that is accepted by the court for an offense listed in subsection (4)(a)(IV)(C) of this section or is registered as a sex offender or is required by law to register as a sex offender, as described in section 16-22-103 may hire the prospective employee to work at a massage facility or continue to employ the employee at a massage facility if the operator or owner believes that employing the prospective employee or employee does not pose a threat to customers or employees of the massage facility.(5) A local government may adopt a resolution or ordinance to prohibit activities to prevent the operation of illicit massage businesses that engage in human trafficking-related offenses as described in sections 18-3-503 and 18-3-504. Prohibited activities include: (a) Allowing a person who does not hold a massage therapy license pursuant to section 12-235-107 to perform massage in a massage facility;(b) Advertising to a prospective client that services, including prostitution, sexual acts, escort services, sexual services, or services related to human trafficking disguised as legitimate services, are available;(c) Permitting sexual acts or sexual services within or near a massage facility or in relation to massage therapy;(d) Denying inspection of a massage facility by law enforcement or inspectors of a licensing authority;(e) Refusing, interfering with, or eluding immediate identification of employees of the massage facility to law enforcement or a licensing authority's appointed inspectors;(f) Failing to immediately report to law enforcement any act of sexual misconduct occurring in a massage facility;(g) Allowing an employee or contractor of a massage facility to provide massage therapy without being fully clothed;(h) Requiring client nudity as part of a massage without the client's prior consent;(i) Allowing a massage facility to be open and practicing massage therapy without a licensed massage therapist on the premises;(j) Permitting a person in a massage facility to make an agreement with an employee or contractor to engage in any prostitution-related offense in the massage facility or any other location;(k) Permitting a massage facility to be used for housing, sheltering, or harboring any person, or as living or sleeping quarters for any person; except that an owner and the owner's family members who operate a massage facility as a home business are exempt from the prohibited activity in this subsection (5)(k); and(l) Operating an erotic parlor on the premises of a massage facility.(6)(a) If authorized by the local government resolution or ordinance, a law enforcement officer may follow the penalty assessment procedure described in section 16-2-201 for any violation of the prohibitions set forth in subsection (5) of this section. As part of the local government ordinance or resolution authorizing the penalty assessment procedure, the local government may adopt a graduated fine schedule for violations of the prohibitions set forth in subsection (5) of this section. A graduated fine schedule may provide for increased penalty assessments for repeat offenses by the same person.(b) A local government may specify in the resolution or ordinance that a massage facility that engages in two or more violations of the resolution or ordinance is a public nuisance, as described in section 16-13-303, unless the violation is already a public nuisance, as described in section 16-13-303. The county attorney of a county, the city attorney of a city and county, the city or town attorney of a municipality, or the district attorney acting pursuant to section 16-13-302, may bring an action in the district court of the county for an injunction against the massage facility that violates the resolution or ordinance.(7) A massage facility does not include: (a) Training rooms in public and nonpublic institutions of higher education, as defined in section 23-3.1-102 (5);(b) Training rooms of recognized professional or amateur athletic teams;(c) Offices, clinics, or other facilities in which medical professionals licensed by the state of Colorado, or any other state, provide massage services to the public in the ordinary course of the medical profession;(d) Medical facilities licensed by the state;(e) Barber shops, beauty salons, and other facilities in which barbers and cosmetologists licensed by the state provide massage services to the public in the ordinary course of the profession;(f) Bona fide athletic clubs that are not engaged in the practice of providing massage therapy to the members or to the public for remuneration or if an athletic club does not receive more than ten percent of its gross income providing massages to the athletic club's members or to the public;(g) A place of business where a person offers to perform or performs massage therapy:(I) For seventy-two hours or less in a six-month period; and(II) As part of a public or charity event in which the primary purpose is not to provide massage therapy; and(h) A place of business where a licensed massage therapist practices as a solo practitioner and: (I) Does not use a business or assumed name; or(II) Uses a business or assumed name and provides the massage therapist's full legal name or license in each advertisement, and each time the business name or assumed name appears in writing; and(III) Does not maintain or operate a table shower.Amended by 2024 Ch. 462,§ 1, eff. 8/7/2024.Added by 2022 Ch. 439, § 1, eff. 8/10/2022.2024 Ch. 462, was passed without a safety clause. See Colo. Const. art. V, § 1(3). 2022 Ch. 439, was passed without a safety clause. See Colo. Const. art. V, § 1(3).