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328 East 1st Street N.
Wichita, Kansas 67202

Council Approves Massage License Appeal

Posted: 5/9/2017

Council Approves Massage License Appeal-Intext

 

The Derby City Council authorized providing a local massage business owner with a one-year temporary license after she appealed the denial of her permanent license.

Jennifer Gaylord will be able to provide massages and run her business, Sage Sisters Massage Therapy, 838 N. Baltimore, for at least the next year, the council ruled. The ruling is subject to conditions, including following the current city code. The approval also is open to future review.

The action took place Feb. 22 at an unusual meeting of the body.

The special meeting was termed a quasi-judicial hearing and at least three attorneys were present along with the city’s police chief and deputy chief.

Gaylord had her denial of application for a massage therapist license and a massage therapy business license denied in late January due to a recent felony charge of criminal damage to property.

Her attorney, Jonathan W. McConnell of Wichita, who also handled that case, argued that the conviction, which came from a plea of guilty, was due to a domestic situation in which his client did not have her proper medication.

That case was unrelated to her business operation, he said.

In addition, part of the plea strategy, he said, was to be able to allow Gaylord to get treatment at Comcare, the county’s mental health services provider.

The court date was May 20, 2016, months before the council passed a massage ordinance. Had they known that action was to take place, the plea would have been different, McConnell said.

Gaylord filed her application Jan. 9 and it was denied Jan. 12.

The appeal was filed Jan. 27. City code requires an appeal hearing to be held within 30 days of that action.

In making Gaylord’s case to the council, McConnell stressed that Gaylord and her business was not involved in any moral or sexual crimes, activities the licensing process was designed to stop.

By denying Gaylord a license, the city would be stopping her from earning a living, along with stopping the tax revenue from her business and any other related economic benefits for the city, he said.

“It’s the only livelihood she has and knows,” he said. “She pays taxes and has employees.”

McConnell also made it clear that, if the appeal was rejected, further action would be in store, including using his original argument, made to the city in a two-page letter, that the denial is unconstitutional.

Among his arguments is that the denial violates Gaylord’s Fourth Amendment rights, denies her a right to substantive due process and her right to equal protection.

McConnell wrote that the ordinance must be “narrowly tailored to serve an important city interest, which is to prevent sexual acts with clients.”

The city ordinance states that a massage applicant must not have been convicted of a felony or crime involving what it terms “moral turpitude.” The legal definition of that is: “an act or behavior that gravely violates the sentiment or accepted standard of the community.”

Gaylord also has a felony drug conviction from July 26, 2010; however, the code states that the action must be within the past five years, thus it didn’t factor into her case.

Member Cheryl Bannon wanted to know if anyone was hurt in the criminal damage incident and was told no one was.

Council members wanted to pose a variety of questions to their attorney, Jacque Butler, who informed them that they were within their rights to call for an executive session to discuss them as attorney-client privilege.

The council did just that, calling for a 25-minute session, followed by another 15-minute session, before Butler proclaimed their intent to grant the conditional license.

On hearing that, Gaylord smiled in relief. Both Gaylord and McConnell declined to comment after the proceedings.

The council adopted an ordinance regarding the licensing of massage therapy businesses and massage therapists within the city Sept. 13. Since then, it has been receiving and processing applications for them. Gaylord’s case has been the only appeal on a denial so far.

Jonathan W. McConnell
328 East 1st Street N.
Wichita, Kansas 67202
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