The Scourge of Unlicensed Back Rubs in New York

Adam and Eve Attrib.jpegAn article in the Saratoga Springs Saratogian caught our eye recently, for a couple of reasons. One was an apparent irony in the charges, which we’ll get into below. The other, admittedly, was nosiness: the story involves ‘the Happy Angel Spa’ – a business located on our very street – and charges that arose, according to police, because ‘the Happy Angel Spa’ “was not just a massage parlor.”

We presume that the defendants here are innocent, but what might ‘not just a massage parlor’ mean? Well, one of the defendants has been accused of Prostitution. That term can cover a lot of ground: it includes any form of sexual conduct (or an offer to engage in sexual conduct) in exchange for a fee. ‘Sexual conduct’, defined here in the context of sex crimes, would, in turn, include just about anything you could imagine.

Prostitution is a class B misdemeanor. The maximum penalty is three months in the county jail or a year’s probation and/or a fine. (‘Patronizing a prostitute’, although it’s not charged here, would actually be more serious; it’s a class A misdemeanor. That can cost a year in jail, or three years’ probation.)

Prostitution is not the most serious charge faced by the ‘Happy Angel’ defendants, though. It’s one thing to perform an act – like exchanging money for sex – that’s completely illegal. It’s quite another – and far more serious, in this case – to do something that’s completely legal but that you, personally, aren’t authorized to do. And that’s where the irony comes in.

There’s nothing illegal about a massage, per se. “[S]troking, kneading, tapping and vibrating with the hands” are included in the Education Law’s definition of the profession of massage therapy (along with language about a ‘scientific system of activity’ applied ‘for the purpose of improving muscle tone and circulation’). It’s a very broad definition. In fact, as pointed out in a 1973 opinion, Society of Medical Masseurs v. City of New York, in describing a similar provision enacted by the City of New York, “the definition of massage is so broad that any human contact more intimate than a handshake falls within its proscription.”

The Legislature clearly thinks massage is a good thing – it’s therapeutic. But the Education Law doesn’t authorize ‘human contact more intimate than a handshake’ by just anyone. It states, in a section called Practice of massage therapy and use of title “masseur”, “masseuse” or “massage therapist” or the term “massage” or “massage therapy, that only a properly licensed person can provide massage therapy or use any of those titles. It’s likely, by the way, that the licensing provisions were enacted by the state for the same reasons given by the City of New York in justifying the provision at issue in Society of Medical Masseurs: to stamp out “massage parlors or massage studios . . . which foster prostitution, lewd displays, pornography, drugs and similar illegal acts on their premises[.]”

Both ‘Happy Angel’ defendants are accused of providing massages without a license. That’s a crime; it’s called ‘unauthorized practice’, and it’s a class E felony. As noted in People v. Fun, a 2007 opinion out of New York County, it’s not that hard for the People to make out a prima facie case: all they have to do is provide proof that the defendant gave a massage, offered to give a massage, or claimed to be a masseuse or masseur (along with proof from the State Department of Education that there’s no license on file for that defendant). If convicted of a class E felony, a defendant could be sentenced to state prison for an indeterminate term of 1 1/3 to 4 years, or to five years’ probation.

In short, you’re guilty of a misdemeanor if you’re more than a massage parlor. But you’re guilty of a felony if you’re not even a massage parlor!