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WEST virginia legislature
2024 regular session
Enrolled
Committee Substitute
for
Senate Bill 786
By Senator Rucker
[Passed March 7, 2024; in effect 90 days from passage]
AN ACT to amend and reenact §30-37-13 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-37-14, all relating to changing the date that massage therapy establishments are required to be licensed; setting a maximum license fee; authorizing the executive director of the board to issue an emergency order suspending the operations of a massage therapy establishment under certain conditions; establishing reasonable cause for inspection; setting forth requirements for emergency orders; requiring issuance of a complaint describing required compliance measures; setting forth prohibitions regarding massage establishments under an emergency order; providing penalties for certain violations; and providing for appeals.
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 July 1, 2025, upon the enactment of this section by the regular session of the Legislature, 2024.
(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 determined necessary by the board. The fee for a biennial establishment license may not exceed $100.
(a) The executive director of the board may issue an emergency order suspending 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 §30-37-1 et seq. of this code, and rules promulgated thereunder; or
(2) The board has reasonable cause to believe that an offense pursuant to §30-37-1 et seq. of this code, or the rules promulgated thereunder is being committed at the massage establishment, and upon inspection by the board, one or more violations of §30-37-1 et seq. of this code or rules promulgated thereunder are observed; or
(3) Upon inspection of a massage establishment, one or more violations of §30-37-1 et seq. of this code or rules promulgated thereunder are observed.
(b) After an inspection where violations were observed, the executive director of the board shall issue an emergency order. If 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 the possible violations.
(c) An emergency order 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 rules promulgated thereunder. The massage establishment shall remain closed to the public until the it is in compliance with the provisions of §30-37-1 et seq. of this code and rules promulgated thereunder. 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. Within three business days the board shall provide to the massage establishment a written complaint resulting in the emergency order suspending the operation of the massage establishment, which describes the compliance measures which must be taken for the emergency order to be rescinded.
(d) The emergency order shall be noticed by being printed on 8 1/2" x 11" paper and taped to the front door of the massage establishment where it is clearly visible to the public.
(e) A massage establishment may not remove the emergency order notice suspending its operations or open for business until it is in compliance with §30-37-1 et seq. of this code, and rules promulgated thereunder as verified by a board inspection.
(f) A massage establishment that opens its business to the public while subjected to an emergency order suspending its operations, shall be fined $1,000 per day, for each day of the violation.
(g) If the board has to take legal action against a massage establishment for continued violations of §30-37-1 et seq. of this code, and rules promulgated thereunder, 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) A massage establishment may appeal the action of the executive director of the board to the board pursuant to the provisions of §30-1-8 of this code.
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