Whether or not to provide services and treatments to children is a question confronting almost every spa owner, and because so many factors come into play, there’s no clear-cut answer. Some choose to forego that income stream because of (legitimate) fears surrounding liability and the necessary paperwork, but in doing so they may be missing out on a lucrative slice of the profit pie. Do the positives outweigh the negatives? We think so, but there are a few things to consider before the decision is made.
Let’s assume that two 14-year-old girls come into your spa and ask for pedicures. After the services are provided they give you a credit card for payment, which goes through without a problem. The following month, the mother of one of the girls calls you to question the charge. You check your records and confirm that the girls did visit your spa and did receive the pedicures. The mother says she is disputing the charge and is refusing to pay.
Where do you stand legally? Not in a very good spot, I’m afraid. You learned from attending a seminar a long time ago that every time a customer appears, and the spa provides that customer a service, a contract is formed. But what does this example have to do with contracts, you ask? This is not an oral contract, nor is it a written contract; instead, it is a contract implied-in-fact. Contracts implied-in-fact occur where there is an unspoken mutual agreement. In this case, the agreement was to provide a pedicure in return for payment. These kinds of contracts are implied from the circumstances showing a mutual intent to contract and can arise by the conduct of the parties. Here, the girls appeared at your spa, ask for pedicures, you provided the pedicures and the girls paid for the services. Thus, this set of circumstances and conduct formed a contract implied- in-fact. So where’s the rub?
It is a generally accepted rule of law in the U.S. that minors—in most states, those persons under the age of 18—lack the capacity to make a contract. (Others who lack this capacity are people suffering from mental incapacity and those under the influence of drugs and alcohol.) So if you contract with anyone who lacks the capacity to contract, you do so at your own risk. The central issue is that these kinds of people may not have the ability to understand binding terms of the contract. There are exceptions, though. In most states, minors cannot avoid a contract for the necessities of life like food, clothing and lodging. Is a pedicure a necessity of life? Some may suggest it is, but a judge is unlikely to agree. Luckily, spa owners can easily avoid falling into this trap.
Spa owners have two choices: They can either provide services to minors or they can choose not to. Of course, whether spa treatments are even appropriate for young people is a matter of debate. On the “pro” side of the argument is practically every mother who has set foot in a spa. Many people feel that spa treatments contribute to mental and physical health as it relates to well-being. There’s no question that children are under more stress than previous generations, so a relaxing massage, pedicure or anything that can help reduce stress must surely good for them, right? Whichever side of the debate you adopt, the trend is clearly moving toward providing spa services to younger clients. It’s a solid moneymaker that many spas can’t afford to ignore.
When offering spa services to minors, contract issues are just one consideration. The younger the client, the greater the liability. Everything from causing an injury to sexual misconduct on the part of an employee can result in astronomical liability and monetary judgments. If, as a spa owner, you’d like to benefit from this profit center but want to minimize your liability, there are several practices and procedures you can implement.
First, decide the age below which your spa will simply not take a customer. Policies and procedures vary from business to business, and the cuto point may be as high as 18 or as low as 8. Next, decide if there are any treatments from which children under a certain age should be excluded.
Almost all spas schedule treatments with a same-gender therapist. As much as you want to be sensitive to gender issues, this is a point that simply must yield to concerns about liability. Another threshold question is whether a parent should be required to accompany a minor throughout the service. Again, this may be age-specific: It might be wholly appropriate for a parent to accompany a 9- or 10-year-old during the child’s spa experience, but the same might not be true for a 15- or 16-year-old. Irrespective, I think it’s wise for spas to require a parent to accompany any minor to their first appointment at least. At that time the parent can sign an authorization form allowing the minor to receive services, as well as accepting responsibility for the cost of those services. Further, the parent can initial checkboxes that specify which services can be received. A dollar limit on ancillary purchases such as makeup or body lotion can also be established.
–by Michael L. Antoline, JD