HOUSE BILL No. 5124 November 10, 1999, Introduced by Rep. Bishop and referred to the Committee on Constitutional Law and Ethics. A bill to amend 1980 PA 299, entitled "Occupational code," by amending section 303a (MCL 339.303a), as amended by 1995 PA 183, and by adding article 17A. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 303a. The terms provided for in this act shall com- 2 mence on the following dates: 3 Accountancy July 1 4 ADULT ENTERTAINMENT ESTABLISHMENTS JANUARY 1 5 Architects April 1 6 Athletic board of control April 1 7 Barbers October 1 8 Collection agencies July 1 04171'99 * DAM 2 1 Community planners July 1 2 Cosmetology January 1 3 Employment agencies October 1 4 Foresters April 1 5 Hearing aid dealers October 1 6 Land surveyors April 1 7 Landscape architects July 1 8 Marriage counselors October 1 9 MASSAGISTS JANUARY 1 10 Mortuary science July 1 11 Nursing home administrators January 1 12 Professional engineers April 1 13 Real estate appraisers July 1 14 Real estate brokers and salespersons July 1 15 Residential builders April 1 16 Social workers October 1 17 ARTICLE 17A 18 SEC. 1751. AS USED IN THIS ARTICLE: 19 (A) "ADULT" MEANS A PERSON 18 YEARS OF AGE OR OLDER. 20 (B) "ADULT BOOKSTORE" MEANS A BUSINESS THAT HAS BOOKS, MAGA- 21 ZINES, OR OTHER PERIODICALS AS PART OF ITS STOCK AND THAT FOR A 22 FEE OFFERS, SELLS, PROVIDES, OR RENTS 1 OR MORE OF THE 23 FOLLOWING: 24 (i) IF THE BUSINESS RESTRICTS OR PURPORTS TO RESTRICT ADMIS- 25 SION TO ADULTS OR A SPECIFIED CLASS OF ADULTS, SEXUALLY ORIENTED 26 MATERIAL. 04171'99 * 3 1 (ii) SEXUALLY ORIENTED MATERIAL THAT IS AVAILABLE FOR 2 VIEWING BY PATRONS ON THE PREMISES WITH A MOVIE MACHINE OR SLIDE 3 PROJECTOR. 4 (iii) SEXUALLY ORIENTED MATERIAL, A SUBSTANTIAL PORTION OF 5 THE CONTENTS OF WHICH IS DEVOTED TO THE PICTORIAL DEPICTION OF 6 SADISM, MASOCHISM, OR BESTIALITY. 7 (iv) SEXUALLY ORIENTED MATERIAL THAT HAS AS ITS PRINCIPAL 8 THEME THE DEPICTION OF SEXUAL ACTIVITY BY, OR LASCIVIOUS EXHIBI- 9 TION OF THE UNCOVERED GENITALS, PUBIC REGION, OR BUTTOCKS OF, 10 CHILDREN WHO ARE OR APPEAR TO BE UNDER THE AGE OF 18. 11 (C) "ADULT ENTERTAINMENT ESTABLISHMENT" MEANS AN ADULT BOOK- 12 STORE, ADULT SHOW, ADULT THEATER, MASSAGE ESTABLISHMENT, RELAX- 13 ATION ESTABLISHMENT, OR OTHER COMMERCIAL ESTABLISHMENT, BUSINESS, 14 OR SERVICE, THAT UTILIZES 10% OR MORE OF ITS TOTAL FLOOR SPACE 15 FOR THE STORAGE, DISPLAY, SHOWING, OR SALE OF SEXUALLY ORIENTED 16 MATERIAL, DEVICES, OBJECTS, OR PARAPHERNALIA, SPECIFIC SEXUAL 17 ACTIVITIES, SERVICES, OR PERFORMANCES, OR ANY COMBINATION OF 18 THEM, IN ANY FORM, INCLUDING, BUT NOT LIMITED TO, PRINTED, 19 FILMED, RECORDED, OR LIVE. 20 (D) "ADULT SHOW" MEANS AN ADULT SHOW, EXHIBITION, PER- 21 FORMANCE, OR PRESENTATION THAT CONTAINS AN ACT OR DEPICTION OF 22 SPECIFIC SEXUAL ACTIVITY. ADULT SHOW INCLUDES, BUT IS NOT 23 LIMITED TO, AN ESTABLISHMENT COMMONLY KNOWN AS A "PEEP SHOW". 24 (E) "ADULT THEATER" MEANS AN ENCLOSED BUILDING USED FOR 25 PRESENTING FILMS DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS ON 26 MATTER DEPICTING, DESCRIBING, OR RELATING TO SPECIFIC SEXUAL 27 ACTIVITY FOR OBSERVATION BY PATRONS. 04171'99 * 4 1 (F) "BESTIALITY" MEANS SEXUAL ACTIVITY, ACTUAL OR SIMULATED, 2 BETWEEN A HUMAN BEING AND AN ANIMAL. 3 (G) "MASOCHISM" MEANS SEXUAL GRATIFICATION ACHIEVED BY A 4 PERSON THROUGH, OR THE ASSOCIATION OF SEXUAL ACTIVITY WITH, SUB- 5 MISSION OR SUBJECTION TO PHYSICAL PAIN, SUFFERING, HUMILIATION, 6 TORTURE, OR DEATH. 7 (H) "MASSAGE ESTABLISHMENT" MEANS A BUSINESS OR ENTERPRISE 8 THAT OFFERS, SELLS, OR PROVIDES, OR THAT HOLDS ITSELF OUT AS 9 OFFERING, SELLING, OR PROVIDING, MASSAGES THAT INCLUDE BATHING, 10 PHYSICAL MASSAGE, RUBBING, KNEADING, ANOINTING, STROKING, MANIPU- 11 LATING, OR OTHER TACTILE STIMULATION OF THE HUMAN BODY, BY EITHER 12 MALE OR FEMALE EMPLOYEES OR ATTENDANTS, BY HAND OR BY ELECTRICAL 13 OR MECHANICAL DEVICE, ON OR OFF THE PREMISES. MASSAGE ESTABLISH- 14 MENT DOES NOT INCLUDE THE BUSINESS OR OCCUPATION OF A BARBER, 15 COSMETOLOGIST, OR PERSON ENGAGED IN THE PRACTICE OF MORTUARY 16 SCIENCE LICENSED UNDER THIS ACT, A CHIROPRACTOR, DENTIST, PHYSI- 17 CIAN, PERSON ENGAGED IN THE PRACTICE OF NURSING, OPTOMETRIST, 18 PHYSICAL THERAPIST, PODIATRIST, OR OCCUPATIONAL THERAPIST 19 LICENSED OR REGISTERED UNDER ARTICLE 15 OF THE PUBLIC HEALTH 20 CODE, 1978 PA 368, MCL 333.16101 TO 333.18838, A HEALTH FACILITY 21 OR AGENCY LICENSED AND CERTIFIED UNDER ARTICLE 17 OF THE PUBLIC 22 HEALTH CODE, 1978 PA 368, MCL 333.20101 TO 333.22260, AN ATHLETIC 23 COACH OR ATHLETIC TRAINER, OR A BUSINESS OR ENTERPRISE THAT ONLY 24 UTILIZES INDIVIDUALS THAT HAVE GRADUATED FROM A MASSAGE THERAPY 25 TRAINING PROGRAM ACCREDITED OR APPROVED BY THE NATIONAL ASSOCIA- 26 TION OF MASSAGE THERAPISTS, THE AMERICAN MASSAGE THERAPY 04171'99 * 5 1 ASSOCIATION, THE COMMISSION ON MASSAGE TRAINING ACCREDITATION, OR 2 THE DEPARTMENT TO SELL OR PROVIDE MASSAGES. 3 (I) "MASSAGIST" MEANS AN INDIVIDUAL WHO PERFORMS MASSAGE 4 SERVICES FOR A MASSAGE ESTABLISHMENT OR A SELF-EMPLOYED INDIVID- 5 UAL WHO PERFORMS MASSAGE SERVICES. MASSAGIST DOES NOT INCLUDE AN 6 INDIVIDUAL WHO HAS GRADUATED FROM A MASSAGE THERAPY TRAINING PRO- 7 GRAM ACCREDITED OR APPROVED BY THE NATIONAL ASSOCIATION OF MAS- 8 SAGE THERAPISTS, THE AMERICAN MASSAGE THERAPY ASSOCIATION, THE 9 COMMISSION ON MASSAGE TRAINING ACCREDITATION, OR THE DEPARTMENT. 10 (J) "PARTNER" MEANS A GENERAL OR LIMITED PARTNER. 11 (K) "PARTNERSHIP" MEANS A GENERAL OR LIMITED PARTNERSHIP. 12 (l) "PEACE OFFICER" MEANS THE ATTORNEY GENERAL, A DEPUTY OR 13 ASSISTANT TO THE ATTORNEY GENERAL, OR A LAW ENFORCEMENT OFFICER 14 AS THAT TERM IS DEFINED IN SECTION 2 OF THE MICHIGAN LAW ENFORCE- 15 MENT OFFICERS TRAINING COUNCIL ACT, 1965 PA 203, MCL 28.602. 16 (M) "PRINCIPAL OWNER" MEANS A PERSON WHO OWNS 10% OR MORE OF 17 THE OUTSTANDING EQUITY INTERESTS OF A LICENSEE INCLUDING, BUT NOT 18 LIMITED TO, STOCK IN A CORPORATION, PARTNERSHIP INTEREST IN A 19 PARTNERSHIP, OR MEMBERSHIP INTEREST IN A LIMITED LIABILITY 20 COMPANY. 21 (N) "RELAXATION ESTABLISHMENT" MEANS A COMMERCIAL BUSINESS, 22 ENTERPRISE, OR SERVICE THAT OFFERS OR HOLDS ITSELF OUT AS OFFER- 23 ING CONVERSATION OR RELAXATION OR ANY OTHER SERVICES IN WHICH AN 24 EMPLOYEE, ATTENDANT, OR PATRON IS INVOLVED IN SPECIFIC SEXUAL 25 ACTIVITY OR REPRESENTATION OF SEXUAL ACTIVITY. RELAXATION ESTAB- 26 LISHMENT INCLUDES, BUT IS NOT LIMITED TO, AN ESTABLISHMENT 04171'99 * 6 1 COMMONLY KNOWN AS A "CONVERSATION PARLOR", "RELAXATION STUDIO", 2 "HEALTH SALON", OR "CALL SERVICE". 3 (O) "SADISM" MEANS SEXUAL GRATIFICATION ACHIEVED THROUGH, OR 4 THE ASSOCIATION OF SEXUAL ACTIVITY WITH, THE INFLICTION OF PHYSI- 5 CAL PAIN, SUFFERING, HUMILIATION, TORTURE, OR DEATH UPON ANOTHER 6 PERSON OR ANIMAL. 7 (P) "SEXUALLY ORIENTED MATERIAL" MEANS A BOOK, ARTICLE, MAG- 8 AZINE, PUBLICATION, OTHER WRITTEN MATTER, DRAWING, ETCHING, 9 PAINTING, PHOTOGRAPH, MOTION PICTURE FILM, OR SOUND RECORDING 10 THAT DEPICTS SEXUAL ACTIVITY, ACTUAL OR SIMULATED, INVOLVING 11 HUMAN BEINGS, OR HUMAN BEINGS AND ANIMALS, OR WHICH EXHIBITS 12 UNCOVERED HUMAN GENITALS OR PUBIC REGIONS IN A LEWD OR LASCIVIOUS 13 MANNER, OR WHICH EXHIBITS HUMAN MALE GENITALS IN A DISCERNIBLY 14 TURGID STATE EVEN IF COMPLETELY COVERED. 15 (Q) "SPECIFIC SEXUAL ACTIVITY" MEANS 1 OR MORE OF THE FOL- 16 LOWING SEXUAL ACTIVITIES OR EXHIBITIONS OF ANATOMICAL AREAS: 17 (i) HUMAN GENITALS IN A STATE OF SEXUAL STIMULATION OR 18 AROUSAL. 19 (ii) AN ACT OR REPRESENTATION OF AN ACT OF HUMAN MASTURBA- 20 TION, SEXUAL INTERCOURSE, SODOMY, CUNNILINGUS, FELLATIO, OR 21 EXCRETORY FUNCTION. 22 (iii) FONDLING OR EROTIC TOUCHING OF HUMAN GENITALS, PUBIC 23 REGIONS, BUTTOCKS, OR FEMALE BREASTS. 24 (iv) LESS THAN COMPLETELY AND OPAQUELY COVERED HUMAN GENI- 25 TALS OR PUBIC REGIONS, BUTTOCKS, OR FEMALE BREASTS BELOW THE TOP 26 OF THE AREOLA. 04171'99 * 7 1 (v) HUMAN MALE GENITALS IN A DISCERNIBLY TURGID STATE, EVEN 2 IF COMPLETELY AND OPAQUELY COVERED. 3 (R) "TREAT" MEANS TO ADMINISTER THE SERVICES PROVIDED BY A 4 MASSAGE ESTABLISHMENT. 5 SEC. 1752. (1) BEGINNING 90 DAYS AFTER THE EFFECTIVE DATE 6 OF THE AMENDATORY ACT THAT ADDED THIS SECTION, A PERSON SHALL NOT 7 ENGAGE IN, CARRY ON, OR PARTICIPATE IN THE OPERATION OF AN ADULT 8 ENTERTAINMENT ESTABLISHMENT OR ENGAGE IN THE OCCUPATION OF MASSA- 9 GIST UNLESS THE PERSON IS LICENSED BY THE DEPARTMENT UNDER THIS 10 ARTICLE. 11 (2) NOTWITHSTANDING SECTION 601(3), 1 OR MORE OF THE FOLLOW- 12 ING APPLY TO A VIOLATION OF SUBSECTION (1): 13 (A) A PERSON WHO ENGAGES IN THE OCCUPATION OF MASSAGIST IN 14 VIOLATION OF SUBSECTION (1) IS GUILTY OF A MISDEMEANOR PUNISHABLE 15 BY A FINE OF NOT MORE THAN $500.00 OR IMPRISONMENT FOR NOT MORE 16 THAN 6 MONTHS, OR BOTH. 17 (B) A PERSON, ENGAGED IN THE MANAGEMENT OF AN ADULT ENTER- 18 TAINMENT ESTABLISHMENT, AND EACH OF THE FOLLOWING PERSONS, AS 19 APPLICABLE, ENGAGING IN, CARRYING ON, OR PARTICIPATING IN THE 20 OPERATION OF AN ADULT ENTERTAINMENT ESTABLISHMENT IN VIOLATION OF 21 SUBSECTION (1) IS GUILTY OF A MISDEMEANOR PUNISHABLE BY A FINE OF 22 NOT MORE THAN $10,000.00 OR IMPRISONMENT FOR NOT MORE THAN 6 23 MONTHS, OR BOTH: 24 (i) IF THE PERSON IS A CORPORATION, A PRINCIPAL OWNER, 25 DIRECTOR, OR OFFICER. 26 (ii) IF THE PERSON IS A PARTNERSHIP, A GENERAL PARTNER OR 27 PRINCIPAL OWNER. 04171'99 * 8 1 (iii) IF THE PERSON IS A LIMITED LIABILITY COMPANY, A 2 PRINCIPAL OWNER OR MANAGER. 3 (C) A PERSON ENGAGING IN, CARRYING ON, OR PARTICIPATING IN 4 THE OPERATION OF A MASSAGE ESTABLISHMENT THAT IS FOUND TO HAVE 5 UPON THE PREMISES A MASSAGIST IN VIOLATION OF SUBSECTION (1) IS 6 GUILTY OF A MISDEMEANOR PUNISHABLE BY A FINE OF NOT LESS THAN 7 $2,500.00 AND NOT MORE THAN $10,000.00. A FINE ASSESSED UNDER 8 THIS SUBDIVISION SHALL NOT BE SUSPENDED. THE ARREST, PROSECU- 9 TION, OR CONVICTION OF THE MASSAGIST FOR VIOLATION OF SUBSECTION 10 (1) IS NOT REQUIRED FOR ASSESSMENT OF A PENALTY UNDER THIS 11 SUBDIVISION. 12 (3) A CERTIFICATE BY THE DEPARTMENT THAT A DILIGENT SEARCH 13 OF THE DEPARTMENT'S RECORDS KEPT IN CONFORMITY WITH THIS ARTICLE 14 HAS FAILED TO DISCLOSE THE EXISTENCE OF A VALID LICENSE FOR AN 15 ADULT ENTERTAINMENT ESTABLISHMENT IS PRIMA FACIE EVIDENCE OF A 16 VIOLATION OF SUBSECTION (1). 17 Enacting section 1. This amendatory act does not take 18 effect unless all of the following bills of the 90th Legislature 19 are enacted into law: 20 (a) Senate Bill No. _______ or House Bill No. 5125 21 (request no. 04171'99 a *). 22 (b) Senate Bill No. _______ or House Bill No. 5126 23 (request no. 05234'99). 24 (c) Senate Bill No. _______ or House Bill No. 5127 25 (request no. 05235'99). 26 (d) Senate Bill No. _______ or House Bill No. 5128 27 (request no. 05236'99). 04171'99 * 9 1 (e) Senate Bill No. _______ or House Bill No. 5129 2 (request no. 05237'99). 3 (f) Senate Bill No. _______ or House Bill No. 5130 4 (request no. 05238'99). 5 (g) Senate Bill No. _______ or House Bill No. 5131 6 (request no. 05239'99). 7 (h) Senate Bill No. _______ or House Bill No. 5132 8 (request no. 05240'99).04171'99 * Final page. DAM