Florida Senate - 2023                             CS for SB 1338
       
       
        
       By the Committee on Health Policy; and Senator Martin
       
       
       
       
       
       588-03490-23                                          20231338c1
    1                        A bill to be entitled                      
    2         An act relating to massage establishments; amending s.
    3         456.074, F.S.; authorizing the Department of Health to
    4         immediately suspend the license of massage therapists
    5         and massage establishments if the massage therapist or
    6         certain individuals connected to the massage
    7         establishment are arrested for, convicted or found
    8         guilty of, or enter criminal pleas to specified
    9         violations; amending s. 480.033, F.S.; providing and
   10         revising definitions; amending s. 480.035, F.S.;
   11         revising quorum requirements for the Board of Massage
   12         Therapy; amending s. 480.039, F.S.; authorizing
   13         specified enforcement officers to perform inspections
   14         and investigations of massage establishments for
   15         specified purposes; requiring code enforcement
   16         officers, and authorizing law enforcement officers, to
   17         submit affidavits with specified photos and other
   18         evidence and documentation to the department within a
   19         specified timeframe; requiring certain law enforcement
   20         agencies to notify the department within a specified
   21         timeframe after discovering certain violations by a
   22         massage therapist or massage establishment; requiring
   23         the department to inspect a massage establishment
   24         within a specified timeframe for specified violations
   25         and to initiate disciplinary proceedings if violations
   26         are discovered; amending s. 480.043, F.S.; revising
   27         certain rules the board is required to adopt;
   28         prohibiting sexual activity and certain devices in
   29         massage establishments; specifying prohibited conduct
   30         by massage establishment owners and employees;
   31         providing requirements for outside windows and signs
   32         in massage establishments; providing exceptions;
   33         providing employee dress code requirements; requiring
   34         establishments to maintain certain employment records
   35         in English or Spanish; requiring that specified
   36         information be recorded before an employee may provide
   37         services or treatment; requiring massage
   38         establishments to conspicuously display a photo and
   39         specified information for each employee; requiring
   40         that such photos and information be displayed before
   41         an employee may provide services or treatment;
   42         providing for such requirements in massage
   43         establishments within public lodging establishments;
   44         requiring massage establishments to maintain customer
   45         and patient records for services and treatment
   46         provided in the massage establishment in English or
   47         Spanish; providing that medical records satisfy this
   48         requirement if they contain specified information;
   49         requiring massage establishments to maintain such
   50         records for a specified timeframe; requiring massage
   51         establishments to collect and record specified
   52         information and confirm the identification of a
   53         customer or patient before providing services or
   54         treatment; amending s. 480.0465, F.S.; revising
   55         advertising requirements for massage therapists and
   56         massage establishments; amending s. 480.0475, F.S.;
   57         revising hours during which a massage establishment
   58         may operate; requiring that all customer and patient
   59         services and treatment be performed within specified
   60         hours; prohibiting establishments from sheltering or
   61         harboring, or being used as sleeping quarters for, any
   62         person; providing criminal penalties; amending s.
   63         480.0485, F.S.; specifying additional conduct that
   64         constitutes sexual misconduct in the practice of
   65         massage therapy; amending s. 480.0535, F.S.; requiring
   66         department investigators to request valid government
   67         identification from all employees while in a massage
   68         establishment; specifying additional documents a
   69         person operating a massage establishment must
   70         immediately present, upon request, to department
   71         investigators and law enforcement officers; requiring
   72         the department to notify a federal immigration office
   73         if specified persons fail to provide valid government
   74         identification; amending s. 847.001, F.S.; revising
   75         the definitions of the terms “adult entertainment
   76         establishment” and “unlicensed massage establishment”
   77         for purposes of certain criminal conduct; providing an
   78         effective date.
   79          
   80  Be It Enacted by the Legislature of the State of Florida:
   81  
   82         Section 1. Subsection (4) of section 456.074, Florida
   83  Statutes, is amended, and subsection (7) is added to that
   84  section, to read:
   85         456.074 Certain health care practitioners; immediate
   86  suspension of license.—
   87         (4) The department shall issue an emergency order
   88  suspending the license of a massage therapist and or
   89  establishment as those terms are defined in chapter 480 upon
   90  receipt of information that the massage therapist, the
   91  designated establishment manager as defined in chapter 480, an
   92  employee of the establishment, a person with an ownership
   93  interest in the establishment, or, for a corporation that has
   94  more than $250,000 of business assets in this state, the owner,
   95  officer, or individual directly involved in the management of
   96  the establishment has been arrested for committing or
   97  attempting, soliciting, or conspiring to commit, or convicted or
   98  found guilty of, or has entered a plea of guilty or nolo
   99  contendere to, regardless of adjudication, a violation of s.
  100  796.07 s. 796.07(2)(a) which is reclassified under s. 796.07(7)
  101  or a felony offense under any of the following provisions of
  102  state law or a similar provision in another jurisdiction:
  103         (a) Section 787.01, relating to kidnapping.
  104         (b) Section 787.02, relating to false imprisonment.
  105         (c) Section 787.025, relating to luring or enticing a
  106  child.
  107         (d) Section 787.06, relating to human trafficking.
  108         (e) Section 787.07, relating to human smuggling.
  109         (f) Section 794.011, relating to sexual battery.
  110         (g) Section 794.08, relating to female genital mutilation.
  111         (h) Former s. 796.03, relating to procuring a person under
  112  the age of 18 for prostitution.
  113         (i) Former s. 796.035, relating to the selling or buying of
  114  minors into prostitution.
  115         (j) Section 796.04, relating to forcing, compelling, or
  116  coercing another to become a prostitute.
  117         (k) Section 796.05, relating to deriving support from the
  118  proceeds of prostitution.
  119         (l) Section 796.07(4)(a)3., relating to a felony of the
  120  third degree for a third or subsequent violation of s. 796.07,
  121  relating to prohibiting prostitution and related acts.
  122         (m) Section 800.04, relating to lewd or lascivious offenses
  123  committed upon or in the presence of persons less than 16 years
  124  of age.
  125         (n) Section 825.1025(2)(b), relating to lewd or lascivious
  126  offenses committed upon or in the presence of an elderly or
  127  disabled person.
  128         (o) Section 827.071, relating to sexual performance by a
  129  child.
  130         (p) Section 847.0133, relating to the protection of minors.
  131         (q) Section 847.0135, relating to computer pornography.
  132         (r) Section 847.0138, relating to the transmission of
  133  material harmful to minors to a minor by electronic device or
  134  equipment.
  135         (s) Section 847.0145, relating to the selling or buying of
  136  minors.
  137         (7)The department shall issue an emergency order
  138  suspending the license of any licensee upon a finding of the
  139  State Surgeon General that probable cause exists to believe that
  140  the licensee has committed sexual misconduct as defined and
  141  prohibited in s. 456.063(1), or the applicable practice act, and
  142  that such violation constitutes an immediate danger to the
  143  public.
  144         Section 2. Present subsections (1) through (6) and (7)
  145  through (12) of section 480.033, Florida Statutes, are
  146  redesignated as subsections (2) through (7) and (9) through
  147  (14), respectively, new subsections (1) and (8) and subsection
  148  (15) are added to that section, and present subsection (6) of
  149  that section is amended, to read:
  150         480.033 Definitions.—As used in this act:
  151         (1)“Advertising medium” means any newspaper; airwave or
  152  computer transmission; telephone directory listing, other than
  153  an in-column listing consisting only of a name, physical
  154  address, and telephone number; business card; handbill; flyer;
  155  sign, other than a building directory listing all building
  156  tenants and their room or suite numbers; or other form of
  157  written or electronic advertisement.
  158         (7)(6) “Designated establishment manager” means a massage
  159  therapist, a health care practitioner licensed under chapter
  160  457, or a physician licensed under chapter 458, chapter 459, or
  161  chapter 460 who holds a clear and active license without
  162  restriction, who is responsible for the operation of a massage
  163  establishment in accordance with the provisions of this chapter,
  164  and who is designated the manager by the rules or practices at
  165  the establishment.
  166         (8)“Employee” means any person, including independent
  167  contractors or lessees of the massage establishment, whose
  168  duties involve any aspect of the massage establishment
  169  regardless of whether such person is compensated for the
  170  performance of such duties. The term does not include a person
  171  exclusively engaged in the repair or maintenance of the massage
  172  establishment or the delivery of goods to the massage
  173  establishment. This definition applies to chapter 480 only.
  174         (15)“Sexual activity” means any direct or indirect contact
  175  by any employee or person, or between any employees or persons,
  176  with the intent to abuse, humiliate, harass, degrade, or arouse,
  177  or gratify the sexual desire of, any employee or person, or
  178  which is likely to cause such abuse, humiliation, harassment,
  179  degradation, or arousal, or sexual gratification:
  180         (a)With or without the consent of the employee or person;
  181         (b)With or without verbal or nonverbal communication that
  182  the sexual activity is undesired;
  183         (c)With or without the use of any device or object;
  184         (d)With or without the occurrence of penetration, orgasm,
  185  or ejaculation;
  186         (e)Including, but not limited to, intentional contact with
  187  the genitalia, groin, femoral triangle, anus, buttocks, gluteal
  188  cleft, breast or nipples, mouth, or tongue; and
  189         (f)Including, but not limited to, the intentional removal
  190  of any drape without written specific informed consent of the
  191  patient.
  192         Section 3. Subsection (5) of section 480.035, Florida
  193  Statutes, is amended to read:
  194         480.035 Board of Massage Therapy.—
  195         (5) The board shall hold such meetings during the year as
  196  it may determine to be necessary, one of which shall be the
  197  annual meeting. The chair of the board shall have the authority
  198  to call other meetings at her or his discretion. A quorum of the
  199  board shall consist of not less than a majority of the current
  200  membership of the board four members.
  201         Section 4. Section 480.039, Florida Statutes, is amended to
  202  read:
  203         480.039 Investigative services; reporting.—
  204         (1) The department shall provide all investigative services
  205  required in carrying out the provisions of this act. A code
  206  enforcement officer may perform inspections regarding a massage
  207  establishment’s compliance with s. 480.043(14)(a), (b), and (c),
  208  and a law enforcement officer may perform inspections and
  209  investigations regarding a massage establishment’s compliance
  210  with ss. 480.043(12) and (14)(a)-(f), 480.0465(3), 480.0475(1)
  211  and (2), and 480.0535. Code enforcement officers shall, and law
  212  enforcement officers may, submit to the department an executed
  213  affidavit with photos and any other evidence or documentation
  214  obtained during the inspection or investigation within 5
  215  business days after the inspection or investigation that finds
  216  there is a violation of s. 480.043(12) or (14)(a), (b), (c),
  217  (d), (e), or (f), s. 480.0465(3), s. 480.0475(1) or (2), or s.
  218  480.0535. For violations of s. 480.043(14)(a) or (f), s.
  219  480.0465(3), s. 480.0475(2), or s. 480.0535, within 20 business
  220  days after receipt of such executed affidavit, the department
  221  shall issue an emergency order suspending the license of the
  222  massage establishment. For violations of s. 480.043(12) or
  223  (14)(b), (c), (d), or (e) or s. 480.0475(1), within 30 business
  224  days after receipt of an executed affidavit, the department
  225  shall inspect the massage establishment to ensure the massage
  226  establishment’s compliance with this chapter, and, if the
  227  massage establishment is not in compliance with this chapter,
  228  the department shall initiate a disciplinary proceeding.
  229         (2)If a law enforcement officer arrests a massage
  230  therapist for any violation of this chapter or determines that a
  231  massage establishment continues to operate following the
  232  issuance of an emergency suspension or restriction by the
  233  department, the officer’s employing law enforcement agency shall
  234  notify the department within 5 business days after the arrest or
  235  determination of unlawful continued operation.
  236         Section 5. Present subsection (14) of section 480.043,
  237  Florida Statutes, is redesignated as subsection (15) and
  238  amended, a new subsection (14) is added to that section, and
  239  subsection (3) of that section is amended, to read:
  240         480.043 Massage establishments; requisites; licensure;
  241  inspection; human trafficking awareness training and policies;
  242  prohibited acts.—
  243         (3) The board shall adopt rules governing the operation of
  244  establishments and their facilities, employees personnel, safety
  245  and sanitary requirements, financial responsibility, insurance
  246  coverage, and the license application and granting process.
  247         (14)(a)Sexual activity in any massage establishment is
  248  prohibited. An establishment owner or employee may not engage in
  249  or allow any person to engage in sexual activity in the massage
  250  establishment or use the establishment to make arrangements to
  251  engage in sexual activity in another location. Prophylactic
  252  devices are prohibited in a massage establishment.
  253         (b)If there is an outside window or windows into the
  254  massage establishment’s reception area, the outside window or
  255  windows must allow for at least 35 percent light penetration,
  256  and no more than 50 percent of the outside window or windows may
  257  be obstructed with signage, blinds, curtains, or other
  258  obstructions, thus allowing the public to see the massage
  259  establishment’s reception area. A sign must be posted on the
  260  front window of the massage establishment and include the name
  261  of the massage establishment, its license number, and the
  262  telephone number that has been provided to the department as
  263  part of the licensing of the massage establishment. This
  264  paragraph does not apply to a massage establishment within a
  265  public lodging establishment as defined in s. 509.013(4). This
  266  paragraph does not apply to a massage establishment located
  267  within a county or municipality that has an ordinance that
  268  prescribes requirements related to business window light
  269  penetration or signage limitations if compliance with this
  270  paragraph would result in noncompliance with such ordinance.
  271         (c)All employees within the massage establishment must be
  272  fully clothed and such clothing must be fully opaque and made of
  273  nontransparent material that does not expose the employee’s
  274  genitalia, undergarments, or lingerie.
  275         (d)A massage establishment must maintain a complete set of
  276  legible records in English or Spanish, which must include each
  277  employee’s start date of employment, full legal name, date of
  278  birth, home address, telephone number, and employment position
  279  and a copy of the employee’s government identification required
  280  under s. 480.0535. All information required under this paragraph
  281  must be recorded before the employee may provide any service or
  282  treatment to a customer or patient.
  283         (e)A massage establishment must conspicuously display a 2
  284  inch by 2-inch photo for each employee, which, for massage
  285  therapists, must be attached to the massage therapist’s license.
  286  Such display must also include the employee’s full legal name
  287  and employment position. All information required under this
  288  paragraph must be displayed before the employee may provide any
  289  service or treatment to a customer or patient. A massage
  290  establishment within a public lodging establishment as defined
  291  in s. 509.013(4) may satisfy this requirement by displaying the
  292  photos and required information in an employee break room or
  293  other room that is used by employees but is not used by
  294  customers or patients.
  295         (f)A massage establishment must maintain a complete set of
  296  legible records in English or Spanish, which must include the
  297  date, time, and type of service or treatment provided; the full
  298  legal name of the employee who provided the service or
  299  treatment; and the full legal name, home address, and telephone
  300  number of the customer or patient. Medical records may satisfy
  301  this requirement if the records include the specified
  302  information. A copy of the customer’s or patient’s photo
  303  identification may be used to provide the full legal name and
  304  home address of the customer or patient. Records required under
  305  this paragraph must be maintained for at least 1 year after the
  306  provision of the service or treatment. All information required
  307  under this paragraph must be collected and recorded before the
  308  provision of any service or treatment to a customer or patient.
  309  The massage establishment must confirm the identification of the
  310  customer or patient before the provision of any service or
  311  treatment to the customer or patient.
  312         (15)(14) Except for the requirements of subsection (13),
  313  this section does not apply to a practitioner physician licensed
  314  under chapter 457 or a physician licensed under, chapter 458,
  315  chapter 459, or chapter 460 who employs a licensed massage
  316  therapist to perform massage therapy on the practitioner’s or
  317  physician’s patients at his or her the physician’s place of
  318  practice. This subsection does not restrict investigations by
  319  the department for violations of chapter 456 or this chapter.
  320         Section 6. Section 480.0465, Florida Statutes, is amended
  321  to read:
  322         480.0465 Advertisement; prohibitions.—
  323         (1) Each massage therapist or massage establishment
  324  licensed under this act shall include the number of the license
  325  in any advertisement of massage therapy services appearing in
  326  any advertising medium, including a newspaper, airwave
  327  transmission, telephone directory, Internet, or other
  328  advertising medium. Pending licensure of a new massage
  329  establishment under s. 480.043(7), the license number of a
  330  licensed massage therapist who is an owner or principal officer
  331  of the establishment may be used in lieu of the license number
  332  for the establishment. The advertisement must also include the
  333  physical address of the massage establishment and the telephone
  334  number that has been provided to the department as part of the
  335  licensing of the massage establishment. However, the inclusion
  336  of the physical address and telephone number is not required for
  337  an advertisement by a massage establishment whose establishment
  338  owner operates more than five locations in this state.
  339         (2)An establishment owner or employee may not place,
  340  publish, or distribute, or cause to be placed, published, or
  341  distributed, any advertisement in any advertising medium which
  342  states prostitution services, escort services, or sexual
  343  services are available.
  344         (3)A massage therapist or a massage establishment or its
  345  employees may not place, publish, or distribute, or cause to be
  346  placed, published, or distributed, any online advertisement on
  347  any website known for advertising prostitution services, escort
  348  services, or sexual services.
  349         Section 7. Section 480.0475, Florida Statutes, is amended
  350  to read:
  351         480.0475 Massage establishments; prohibited practices;
  352  penalties.—
  353         (1) A massage establishment may only be operated person may
  354  not operate a massage establishment between the hours of 5 a.m.
  355  and midnight and all customer and patient services and treatment
  356  must be performed between the hours of 5 a.m. and 10 p.m. This
  357  subsection does not apply to a massage establishment:
  358         (a) Located on the premises of a health care facility as
  359  defined in s. 408.07; a health care clinic as defined in s.
  360  400.9905(4); a hotel, motel, or bed and breakfast inn, as those
  361  terms are defined in s. 509.242; a timeshare property as defined
  362  in s. 721.05; a public airport as defined in s. 330.27; or a
  363  pari-mutuel facility as defined in s. 550.002;
  364         (b) In which every massage performed between the hours of
  365  10 p.m. midnight and 5 a.m. is performed by a massage therapist
  366  acting under the prescription of a physician or physician
  367  assistant licensed under chapter 458, an osteopathic physician
  368  or physician assistant licensed under chapter 459, a
  369  chiropractic physician licensed under chapter 460, a podiatric
  370  physician licensed under chapter 461, an advanced practice
  371  registered nurse licensed under part I of chapter 464, or a
  372  dentist licensed under chapter 466; or
  373         (c) Operating during a special event if the county or
  374  municipality in which the establishment operates has approved
  375  such operation during the special event.
  376         (2) A person operating a massage establishment may not use
  377  or permit the establishment to be used as a principal domicile
  378  for, to shelter or harbor, or as sleeping quarters for any
  379  person unless the establishment is zoned for residential use
  380  under a local ordinance.
  381         (3) A person violating the provisions of this section
  382  commits a misdemeanor of the first degree, punishable as
  383  provided in s. 775.082 or s. 775.083. A second or subsequent
  384  violation of this section is a felony of the third degree,
  385  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  386         Section 8. Section 480.0485, Florida Statutes, is amended
  387  to read:
  388         480.0485 Sexual misconduct in the practice of massage
  389  therapy.—The massage therapist-patient relationship is founded
  390  on mutual trust. Sexual misconduct in the practice of massage
  391  therapy means violation of the massage therapist-patient
  392  relationship through which the massage therapist uses that
  393  relationship to induce or attempt to induce the patient to
  394  engage, or to engage or attempt to engage the patient, in sexual
  395  activity outside the scope of practice or the scope of generally
  396  accepted examination or treatment of the patient. Sexual
  397  misconduct in the practice of massage therapy includes requiring
  398  patient nudity as part of any massage service or any other
  399  service in the massage establishment or the intentional removal
  400  of any drape without the written specific informed consent of
  401  the patient. Sexual misconduct in the practice of massage
  402  therapy is prohibited.
  403         Section 9. Section 480.0535, Florida Statutes, is amended
  404  to read:
  405         480.0535 Documents required while working in a massage
  406  establishment; penalties; reporting requirement.—
  407         (1) In order to provide the department and law enforcement
  408  agencies the means to more effectively identify, investigate,
  409  and arrest persons engaging in human trafficking, an employee a
  410  person employed by a massage establishment and any person
  411  performing massage therapy in a massage establishment therein
  412  must immediately present, upon the request of an investigator of
  413  the department or a law enforcement officer, valid government
  414  identification while in the establishment. An investigator of
  415  the department must request valid government identification from
  416  all employees while in the establishment. A valid government
  417  identification for the purposes of this section is:
  418         (a) A valid, unexpired driver license issued by any state,
  419  territory, or district of the United States;
  420         (b) A valid, unexpired identification card issued by any
  421  state, territory, or district of the United States;
  422         (c) A valid, unexpired United States passport;
  423         (d) A naturalization certificate issued by the United
  424  States Department of Homeland Security;
  425         (e) A valid, unexpired alien registration receipt card
  426  (green card); or
  427         (f) A valid, unexpired employment authorization card issued
  428  by the United States Department of Homeland Security.
  429         (2) A person operating a massage establishment must:
  430         (a) Immediately present, upon the request of an
  431  investigator of the department or a law enforcement officer:
  432         1. Valid government identification while in the
  433  establishment.
  434         2. A copy of the documentation specified in paragraph
  435  (1)(a) for each employee and any person performing massage
  436  therapy in the establishment.
  437         3.A copy of the documents required under s. 480.043(14)(d)
  438  and (f).
  439         (b) Ensure that each employee and any person performing
  440  massage therapy in the massage establishment is able to
  441  immediately present, upon the request of an investigator of the
  442  department or a law enforcement officer, valid government
  443  identification while in the establishment.
  444         (3) A person who violates any provision of this section
  445  commits:
  446         (a) For a first violation, a misdemeanor of the second
  447  degree, punishable as provided in s. 775.082 or s. 775.083.
  448         (b) For a second violation, a misdemeanor of the first
  449  degree, punishable as provided in s. 775.082 or s. 775.083.
  450         (c) For a third or subsequent violation, a felony of the
  451  third degree, punishable as provided in s. 775.082, s. 775.083,
  452  or s. 775.084.
  453         (4)The department shall notify a federal immigration
  454  office if a person operating a massage establishment, an
  455  employee, or any person performing massage therapy in a massage
  456  establishment fails to provide a valid government identification
  457  as required under this section.
  458         Section 10. Paragraph (d) of subsection (2) of section
  459  847.001, Florida Statutes, is amended to read:
  460         847.001 Definitions.—As used in this chapter, the term:
  461         (2) “Adult entertainment establishment” means the following
  462  terms as defined:
  463         (d) “Unlicensed massage establishment” means any business
  464  or enterprise that offers, sells, or provides, or that holds
  465  itself out as offering, selling, or providing, massages that
  466  include bathing, physical massage, rubbing, kneading, anointing,
  467  stroking, manipulating, or other tactile stimulation of the
  468  human body by either male or female employees or attendants,
  469  including employees or attendants who are massage therapists
  470  licensed under s. 480.041, by hand or by any electrical or
  471  mechanical device, on or off the premises. The term “unlicensed
  472  massage establishment” does not include an establishment
  473  licensed under s. 480.043 which routinely provides medical
  474  services by state-licensed health care practitioners and massage
  475  therapists licensed under s. 480.041.
  476         Section 11. This act shall take effect July 1, 2023.