Massage therapists: We need enforcement - Sioux Falls Argus Leader

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Rebecca Herrmann, owner of Royal Table Massage, is concerned that unlicensed operators are giving massage therapists a bad name.(Photo: Elisha Page / Argus Leader)Buy Photo


Rhanda Heller sounded the alarm bells last week.

The licensed massage therapist told the Sioux Falls City Council that unlicensed operators are at work in the city, that their shops can be safe havens for sex-traffickers peddling erotic massage and that the state’s Board of Massage Therapy is an ineffective enforcer.

Such warnings are old hat for Heller, who was critical of the original proposal to license massage therapists in 2005 and is a frequent visitor to and critic of the massage board’s meetings. She believes now that the state licensing program could work but hasn’t been doing its job.

She’s also the only person who calls Lt. Terry Mixell at the Sioux Falls Police Department to report unlicensed operators. Massaging without a license is a crime punishable by up to a year in jail and a $2,000 fine.

The most troubling issue, she says? The expectations the unlicensed erotic massage parlors create for the potential customers of legitimate practitioners.

“They are getting phone calls and text messages, they’re getting solicited for sex acts, and it’s quite distressing,” Heller told the City Council last week, before listing off a half-dozen examples of unlicensed parlors being warned, moved or shut down in the past year.

Bubbling beneath the surface of Heller’s concern is a long history of discontent with the massage board, the lack of support for its existence in the first place and the limitations placed on it by a change in the law in 2013 and a U.S. Supreme Court decision on trade issued this March.

She’s not the only masseuse in Sioux Falls who worries about these things, although she might be the loudest voice. Julie Pommer has been a vocal supporter of both licensing and strong enforcement.

The human-trafficking angle is what troubles her most. Licensing and legitimacy go hand-in-hand, and a weak license that handles issues on a complaint basis does little to protect women forced into the business of sexual favors.

“Obviously, if you want to put a stop to these injustices, you have to have an authority in place to enforce that,” Pommer said.

City licensing in Sioux Falls, which disappeared after state licensing became the law, was more likely to ferret out unsavory practices, said Rebecca Herrmann of Royal Table Massage.

“When we had city licenses, they kept a closer eye on us,” Herrmann said. “They had the health department and the fire department checking on us every year.”

State board powers limited

The state massage board doesn’t have the power to inspect therapists. Not any more, anyway.

In 2013, state Rep. Charlie Hoffman of Eureka brought a bill that would have disbanded the board entirely. The bill had the support of Gov. Dennis Daugaard, who still believes massage therapy doesn't need to be licensed at the state level.

The board-killing bill eventually was hoghoused and replaced with one that kept the board in place but stripped it of the ability to inspect locations without a formal complaint.

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Board lawyer Jim Carlon said the board can no longer act on informal bits of information. The board can offer the informant an opportunity to make a complaint, but “many times they do not want to or do not feel they have sufficient personal knowledge to file a formal complaint.”

The “inspection upon complaint” model is problematic, Carlon said, because the board is required to send a notice of the complaint to the business and wait 20 days for its response before inspecting.

That wasn’t the case before 2013.

In May of 2011, in response to informal complaints from the public, board member Laura Woitte and board secretary Joyce Vos visited Ying’s Massage in The Empire Mall and saw two women and Asian man at work, according to a settlement agreement filed in Pierre. The man was unable to tell them which of the licenses on the wall was his. The owner, Yuying Shan, was called, and she said she’d close up the business.

A half-hour later, Woitte and Vos came back to find the business was still open. Two days later, the business was still open. The board got an email listing all of the employees but found that two of the employees were never licensed and that six others had expired licenses.

In June of that year, Vos returned to Ying’s Massage. Two male employees fled upon seeing her. Shan lost her license later that year.

In addition to inspections, the board also would send “cease and desist” letters to businesses it learned were practicing without a license, Carlon said.

In March, however, the U.S. Supreme Court issued a ruling in the case of North Carolina Board of Dental Examiners vs. FTC that called into question an appointed board’s ability to order such action. In that case, the North Carolina board, made up mostly of working dentists, sent dozens of cease-and-desist letters to tooth-whitening businesses. The Supreme Court determined that a state board without state government oversight could be held liable in an antitrust action for taking such steps.

After that ruling, on Carlon’s recommendation, the massage board in South Dakota voted to stop sending cease-and-desist letters and to simply pass complaints along to local law enforcement.

“The ultimate impact on the board’s authority or ability to send cease-and-desist letters isn’t clear – yet,” Carlon said. “Until it is clear, we will have to be cautious and not potentially violate the antitrust laws.”

The board’s current secretary, Jennifer Stalley, said it does pass along information about unlicensed massage therapists to local law enforcement. So far this year, she said, there were eight formal complaints, and all eight have been marked “resolved.”

“At the end of the day, the board doesn’t have law enforcement powers,” Stalley said. “We don’t have handcuffs. We can’t go out and put people in jail.”

Local law enforcement deals with issues on a complaint basis

Since the board’s move toward a more hands-off approach to massage licensing, the onus has fallen on local law enforcement to a much greater degree.

There has been some legal action taken. There have been 25 citations for unlicensed massage therapists since the law creating the board was put into place in 2005, nine of which came in fiscal year 2015 and six of which came in fiscal year 2012.

Two Jamie’s Massage businesses in Sioux Falls were cited in February when police learned that not all the massage therapists had licenses, for example.

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In March, deputies in Lincoln County conducted a sting operation at China Massage in Tea, a business Heller said had a particularly suggestive website and an on-call number for after-hours service on its door.

The deputies got massages during the day and later cited Hoi Tran and Hong Kien for practice of massage without a license. Both pleaded guilty this summer.

The most high-profile unlicensed massage incident occurred months before that. Li Li, 45, was charged with prostitution and practicing massage without a license in December 2014 for allegedly offering erotic massages at Happy Dragon in Sioux Falls.

Letters of complaint don’t offer much to work with, according to Minnehaha County State’s Attorney Aaron McGowan. Complaints generally contain incomplete information, he said, no arrest takes place, and there is no affidavit in support of arrest from a certified law enforcement officer – all necessary parts of building a criminal case provable beyond a reasonable doubt.

“There have been cases over the years where the investigation was completed by law enforcement where we were able to proceed with formal charges,” McGowan said.

Lt. Mixell has become the contact person for massage complaints, but Mixell admits that when he was first contacted about the issue last year, he wasn’t fully cognizant of law enforcement’s role in enforcing the rules.

When Heller first called him, Mixell said, he referred her to the state board of massage therapy.

“She said, ‘Well, they don’t enforce it,’ ” Mixell said.

Since then, Mixell said, officers with the street crimes division investigate complaints actively, both from calls through citizens such as Heller and through referrals by the board.

In terms of inspections of the sort that took place when the city licensed massage therapists, Mixell said such actions would step outside the realm of law enforcement.

“If a new restaurant opens up, the Sioux Falls Police Department doesn’t go in there and inspect them to see if their food temperatures are right,” Mixell said.

Future authority could come from legislators

Herrmann, a 15-year business owner in Sioux Falls, doesn’t think enforcement should fall on the shoulders of other therapists.

“I really wish there was something we could do about it,” Herrmann said. “We feel like we’re doing all the legwork.”

The board has worked on an amendment to the state’s massage therapy law that would return the ability to inspect without a formal complaint, and the proposal is posted online for potential stakeholders to review before the legislative session.

It’s unclear how much support a bill would have in the Legislature, however. The 2013 session’s attempt to remove licensing as a requirement had the backing of Daugaard, and Chief of Staff Tony Venhuizen said last week the governor still feels that the practice needn’t be handled at the state level.

“If there is evidence of prostitution, our position is that is a matter for law enforcement, not for the licensure board,” Venhuizen said.

The governor hasn’t taken a position on the proposed changes, Venhuizen said, but he “will carefully consider them.”

The Government Operations and Audit Committee has called upon the board to question it about its finances, as well. For the past two years, the board has taken in less money from licensing than it has spent. That hearing is scheduled to place Friday in Pierre.

Pommer sees licensing and a board strong enough to insure legitimacy as important for practitioners and to those who would spend their money on massage.

People with certain health conditions can be put at risk if they get a massage, she said. A therapist not trained in “contraindications,” as they’re known in the business, might not know the right questions to ask a potential client and cause unintended damage.

“A lot of people don’t want the government regulating, but when you don’t have the government regulating, it’s buyer beware,” Pommer said. “I feel like we need to have some people policing. We’re working on human beings and with human health.”

John Hult is the Reader's Watchdog reporter for Argus Leader Media. Contact him with questions and concerns at 605-331-2301, 605-370-8617. You can tweet him@ArgusJHultor find him on Facebook at www.Facebook.com/ArgusReadersWatchdog

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