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Giving a massage for money without a license could land a Utahn in jail for up to a year, along with a $2,500 fine.
Soliciting or performing a sex act for money could bring a jail term of up to six months and a $1,000 fine.
That severity gap is a big worry for escort services. They believe it creates a loophole regulators and police will use to crack down on sexually oriented businesses (SOBs), particularly with a rule change that appears to widen the definition of a massage.
Under a rule adopted in 2012, massage subject to licensing requirements includes any "contact with movement," done systematically on a clothed or unclothed person for a fee.
Andrew McCullough, a Midvale attorney for several escort services, is convinced Utah regulators are poised to embark on a "moral crusade" armed with the rule. He warns potential abuse of the expansive regulation could spell trouble not only for SOBs but also others doing jobs that have nothing to do with massage.
A waitress rubbing the arm of a paying customer, a personal trainer in a gym guiding someone through an exercise: He insists all could be in jeopardy of being swept up in an illegal-massage dragnet.
Assistant Attorney General Laurie Noda dismisses the claims as nonsensical.
"There's been a really wild allegation … that the division is just out to get escorts, is out to get anyone who is out touching and rubbing skin, and that just really is not the case."
A client of McCullough Beaches Bodyworks, which describes itself as a "relaxation studio" employing young bikini-clad "specialists" has gone to court to seek pre-emptive relief. The lawsuit not only seeks to overturn citations against the Salt Lake County business, but also asks for a declaratory judgment throwing out the rule as unconstitutionally broad.
"Quite frankly, we're scared to death," McCullough said of "regulation run amok."
But a recent two-day trial in 3rd District Court ended badly for Beaches Bodyworks. Judge Barry Lawrence flatly rejected arguments that state regulators have inappropriately expanded rules to "catch SOB operators in their net," saying "that position is completely unsupported by the evidence."
He also said it was not his place to question the law's disparity in dealing with unlicensed massage versus an illegal sex act.
"It is not this court's role to challenge the wisdom of penalizing people more for a licensure violation as compared to certain lewd acts," the judge said in his Nov. 13 ruling.
The state agency in charge of massage-licensing enforcement, the Division of Occupational and Professional Licensing (DOPL), "has no authority to regulate SOBs; other authorities such as local cities or police departments have that role," Lawrence ruled. "It defies logic that DOPL would seek to increase its caseload by trying to regulate another field, for example the SOB field, particularly when that field is already within the authority of law enforcement."
In the case at hand, Beaches Bodyworks was investigated by a vice officer from the Unified Police Department.
Lt. Mike Cupello testified during the trial that he checked out the business located in an office-complex suite on the 500 East block of 4500 South as a possible front for prostitution.
"My case resulted in nothing. We didn't issue citations. We were done," Cupello said. "Law enforcement it's not our purview to enforce any type of Massage Therapy Act. … Nothing I saw there would have been in my area of responsibility."
At the same time, Allyson Pettley, the head of the DOPL bureau overseeing massage professionals, testified she has no interest in cracking down on SOBs and, in fact, had never cited anyone for a lap dance or similar activity of a sexual nature. She said she's not aware of any such enforcement by DOPL investigators.
Pettley did acknowledge once citing a yoga instructor but that was because the person was trying to lengthen a client's muscle to help them achieve a position in what she said was a clear case of unlicensed massage.
DOPL has no interest in being drafted as an arm of local police to go after SOBs, Pettley testified.
"We have so many unlicensed massage therapists that me and other investigators have had a very full caseload."
McCullough acknowledges the district court ruling was a setback for his client. But he said he'll appeal the case all the way to the Utah Supreme Court because the issue is an important one.
"We'll fight it out as long as it takes," the attorney said.
Regulators and police may not be using the massage licensing rule now to wholesale prosecute SOBs, but McCullough believes it's just a matter of time before that happens.
"Why would [investigators] make an effort to try and get evidence of a sex act, which is a class B misdemeanor, when for one-tenth of the effort, they can get touch plus movement and arrest them for a class A?"