Local Government Entity Ordinance Review and Massage Facility Background Checks

Per House Bill HB24-1371, Colorado Revised Statute (CRS) 30-15-401.4 referred to completing background checks for massage facility owners, operators and employees, specified in Section (1)(a)(IV) that:
 

"...local governments have significant discretion to address in accordance with local needs, it is necessary, appropriate, and in the best interest of all Coloradans to:

(A) Require, uniformly throughout the state as a matter of statewide policy, that every current and prospective operator, owner, and employee of a massage facility submit to a background check, which generally means a fingerprint-based criminal history record check, as required by this section; and

(B) Require every local government in the state that has a massage facility within its jurisdictional boundaries to establish a local process that ensures that the background checks are conducted throughout the state in accordance with the requirements and limitations set forth in this section."

However, the Federal Bureau of Investigation (FBI) did not approve of CRS 30-15-401.4 as part of their review of HB24-1371.  In response to this denial, new legislature was passed with Senate Bill SB25-146, which established CRS 24-33.5-424.5.

Senate Bill SB25-146, which established CRS 24-33.5-424.5, was approved by the FBI and specifies in Section (1)(a) that:

"A local government entity that requires by ordinance or resolution, in accordance with 34 U.S.C. SEC.41101, that an applicant or licensee submit to a fingerprint-based criminal history record check shall submit the applicant's or licensee's fingerprints to the Colorado Bureau of Investigation for the purpose of conducting the fingerprint-based criminal history record check." 

This new "umbrella" statute allows for a local government entity to create their own local ordinance or resolution to establish fingerprint-based background checks for any profession or occupation that the local government entity wants to have both state and national fingerprint background checks completed for.  

Senate Bill SB25-146 also updated CRS 30-15-401.4 to more specifically state the requirements of local government agencies to enact ordinances or resolutions to have massage facility operators, owners and employees fingerprint background checked in Section 3.5:

"...a local government shall establish a process in accordance with 34 U.S.C. sec. 41101, which must be established by ordinance or resolution, in accordance with 34 U.S.C. sec. 41101; must meet the criteria established by the federal bureau of investigation in implementing 34 U.S.C. sec. 41101; and must be performed in accordance with section 24-33.5-424.5, to require that, as a condition for a person remaining as or becoming an operator, owner, or employee:

(a) An operator, owner, or employee on the effective date of the resolution or ordinance submit to a background check performed in accordance with section 24-33.5-424.5 on or before the earlier of July 1, 2026, or any other date specified by a local government in its process;

(b) A prospective employee submit to a background check performed in accordance with section 24-33.5-424.5 before commencing employment with a massage facility; and

(c) A prospective operator or owner submit to a background check performed in accordance with section 24-33.5-424.5 at least thirty days before, as applicable, being granted a license to operate a massage facility or assuming an ownership interest in a massage facility that would make the prospective owner an owner."
 

So, for any county or municipality that sets forth to establish a program to conduct fingerprint-based background checks for massage facility owners, operators and employees, as CRS 30-15-401.4 specified, or any other profession, as CRS 24-33.5-424.5 allows for, then they should adopt a local ordinance or resolution to do so.  The local government entity would submit their ordinance or resolution to the CBI for review and then the CBI would submit to the FBI for review.  It is recommended that any ordinance or resolution be submitted to the CBI in draft form prior to being enacted by local legislators.  
 

The local ordinance or resolution would need to meet the 6 criteria required by the FBI pertaining to Public Law (Pub. L.) 92-544:
 

a. The statute must exist as a result of a legislative enactment;

b. It must require the fingerprinting of applicants who are to be subjected to a national criminal history background check;

c. It must expressly or by implication authorize the use of FBI records for the screening of applicants;

d. It must identify the specific category of applicants/licensees falling within its purview, thereby avoiding overbreadth;

e. It must not be against public policy; and

f. It must not authorize receipt of the CHRI by a private entity

If the FBI approves of the local ordinance or resolution, then the local government entity can begin submitting fingerprints to the CBI for state and national background checks. Agencies would need to create a new account for each ordinance or resolution that is approved for monitoring and regulatory purposes.  

If you have any questions on how to write the ordinance or resolution, or wish to submit a draft of an ordinance or resolution for the CBI to review, please send such inquiries to CDPS.CBI.BIRU.Ordinance_Review@state.co.us.