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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
Senate Bill 786
By Senator Rucker
[Introduced February 14, 2024; referred
to the Committee on the Judiciary]
A BILL to amend and reenact §30-37-13 of the Code of West Virginia, 1931, as amended; and by amending said code adding thereto a new section, designated §30-37-14, all relating to massage therapy establishments; modifying implementation dates; establishing reasonable cause for inspection; providing authority for the board to issue emergency orders halting operations for violations of establishment regulations; describing posting of emergency orders; requiring summary and written notice; proscribing prohibitions of sanctioned establishments; and providing penalties for certain violations.
Be it enacted by the Legislature of West Virginia:
(a) A place of business that is not a sole practitioner, that advertises or offers massage therapy or other massage services must be licensed by the board as a massage establishment as provided by §30-37-1 et seq. of this code.
(b) A massage establishment shall employ or contract only with massage therapists licensed in this state to perform massage therapy or other massage services. Documentation of the employment or contract relationship and verification that the licensed massage therapist is a United States citizen or a legal permanent resident with a valid work permit shall be maintained by the massage establishment, and shall be made available during any inspection or investigation. Required documentation for each person providing massage therapy or other massage services shall include:
(1) A copy of the current active West Virginia massage therapist license;
(2) Proof of eligibility to work in the United States; and
(3) If an employee, a completed I-9 form, or if under an independent contractor or contract labor agreement, a copy of the contract signed by both the owner or operator of the establishment and the licensed massage therapist.
(c) An adult oriented business may not obtain a license from the board or operate as a massage establishment.
(d) Each applicant for a massage establishment shall:
(1) Submit a completed application on a board approved form; and
(2) Pay the appropriate fee as prescribed by the board by legislative rule.
(e) Exemptions:
(1) A place of business is not required to hold a massage establishment license under this article if:
(A) The place of business is owned by the federal government, the state, or a political subdivision of the state, or otherwise offers massage services as authorized under any other state issued professional or occupational license; or
(B) At the place of business, a licensed massage therapist practices as a sole practitioner.
(2) The sole practitioner does not use a business name or assumed name; or
(3) Uses a business name or an assumed name and provides the massage therapist's full legal name or license number in each advertisement and each time the business name or assumed name appears in writing.
(f) A massage establishment license shall be renewed biennially on a form prescribed by the board, with the appropriate fee.
(g) Massage establishment requirements:
(1) A massage establishment shall post, in a prominent location, the board administered establishment license, the state license of each licensed massage therapist employed by the establishment, and any business licenses required by any state, municipality or local governmental entity.
(2) Properly maintain and secure for each client the initial consultation documents, all session notes, written consent documents, and related billing records; and
(3) Maintain a current list of all establishment employees and/or contractors on the premises at all times which includes:
(A) The full name; and
(B) License number and expiration date of the licensed as a massage therapist.
(h) A massage establishment may not:
(1) Employ or contract with an individual to perform massage services who is not a licensed massage therapist in this state and who is not a United States citizen or a legal resident with a valid work permit;
(2) Allow a nude or partially nude employee to provide massage therapy or other massage services to a customer;
(3) Allow any individual, including a client, license holder, or employee, to engage in sexual contact in the massage establishment;
(4) Allow any individual, including a license holder, employee, or contract employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual; or
(5) Allow any individual, including a license holder, employee, or contract employee to reside on the premises of the massage establishment.
(i) A licensee of a massage establishment may be disciplined, including the suspension or revocation of the license for cause:
(1) Pursuant to the general provisions of §30-1-1 et seq. and §30-37-1 et seq. of this code;
(2) For violating any provision of this article;
(3) For violating any applicable state law, rule, or policy; and
(4) For violating any applicable local ordinance.
(j) A license to operate a massage establishment shall be required, starting on October 1, 2023 July 1, 2025, upon the enactment of this section by the regular session of the Legislature, 2023 2025.
(k) All establishment license holders who are not licensed massage therapists, shall, beginning July 1, 2025, obtain two hours of continuing education on the laws and rules of massage therapy every two years and shall provide the certificate of completion to the board by October 1, 2025, and with the application for biennial renewal of the establishment license.
(l) The board shall propose emergency legislative rules pursuant to §29A-3-1 et seq. of this code to establish reasonable fees for the licensure of massage establishments, including the fee for the establishment license and any establishment inspection fees as deemed necessary by the board.
(a) The executive director may issue an emergency order halting the operation of a massage establishment if:
(1) A law enforcement agency provides notice to the board, that the law enforcement agency is investigating the massage establishment for an offense pursuant to §61-8-1 et seq., §61-14-1 et seq., or §30-37-13 of this code; or
(2) The board has reasonable cause to believe that an offense pursuant to §30-37-13 of this code is being committed at the massage establishment, and upon inspection by the board, where one or more violations of the establishment regulations are observed; or
(3) Upon inspection of a massage establishment, where one or more violations of §30-37-13 of this code are observed, the executive director shall issue an emergency order; and
(4) Upon inspection, where the board believes the massage establishment may be in violation of a local, municipal, or other applicable law, the board shall notify law enforcement of its observations.
(b) Emergency Orders shall identify the massage establishment by its business name, state that the massage establishment is closed by Order of the WV Massage Therapy Licensing Board pursuant to §30-37-1 et seq. of this code, and shall remain closed to the public until the massage establishment is in compliance with the provisions of §30-37-1 et seq. of this code. The board shall provide the massage establishment with a written summary of the findings of the inspection resulting in the emergency order, describing what compliance measures are necessary, and within three business days provide to the establishment, in writing, the board complaint resulting in the emergency order halting the operation of the establishment, and describe what compliance measures must be taken for the emergency order to be rescinded.
(c) The emergency order shall be noticed by being printed on 8 ½" x 11" paper, taped to the front door of the massage establishment, clearly visible to the public.
(d) A massage establishment may not remove the notice of order halting its operations until the establishment is in compliance with §30-37-1 et seq. of this code, as verified by a board inspection.
(e) A massage establishment may not open for business until in compliance with §30-37-1 et seq. of this code, as verified by a board inspection.
(f) A massage establishment that opens its business to the public while subjected to an emergency order halting its operations, shall be fined $1,000 per day, for each day of the violation.
(g) Where the board has to take legal action against a massage establishment for continued violations of §30-37-1 et seq. of this code, the court may triple the applicable fines and order the massage establishment to reimburse the board for all legal fees, and all administrative costs.
(h) An establishment may appeal the action of the executive director to the board pursuant to the provisions of §30-1-8 of this code.
NOTE: The purpose of this bill is to modify the date for implementing massage establishment licensure, and to provide authority for the board to issue an emergency order halting establishment operation until the establishment is in compliance with §30-37-1 et seq. of this code.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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