Florida Senate - 2023                                    SB 1338
       
       
        
       By Senator Martin
       
       
       
       
       
       33-00568C-23                                          20231338__
    1                        A bill to be entitled                      
    2         An act relating to massage establishments; amending s.
    3         480.033, F.S.; providing and revising definitions;
    4         amending s. 480.035, F.S.; revising quorum
    5         requirements for the Board of Massage Therapy;
    6         amending s. 480.039, F.S.; authorizing specified
    7         enforcement officers to perform inspections and
    8         investigations of massage establishments for specified
    9         purposes; requiring code enforcement officers, and
   10         authorizing law enforcement officers, to submit
   11         affidavits with specified photos and other evidence to
   12         the Department of Health within a specified timeframe;
   13         requiring the department to issue a summary suspension
   14         of a massage establishment license within a specified
   15         timeframe after an investigation finds that a
   16         specified violation occurred; requiring certain law
   17         enforcement agencies to notify the department within a
   18         specified timeframe after discovering certain
   19         violations by a massage therapist or massage
   20         establishment; amending s. 480.043, F.S.; prohibiting
   21         sexual activity and certain devices in massage
   22         establishments; specifying prohibited conduct by
   23         massage establishment owners and employees; providing
   24         requirements for outside windows and signs in massage
   25         establishments; providing exceptions; providing
   26         employee dress code requirements; requiring
   27         establishments to maintain certain employment records
   28         in English and Spanish; requiring specified
   29         information be recorded before an employee may provide
   30         services or treatment; requiring massage
   31         establishments to conspicuously display a photo and
   32         specified information for each employee; providing
   33         that such photos and information must be displayed
   34         before an employee may provide services or treatment;
   35         providing for such requirements in massage
   36         establishments within public lodging establishments;
   37         requiring massage establishments to maintain customer
   38         and patient records for services and treatment
   39         provided in the massage establishment in English and
   40         Spanish; providing that medical records satisfy this
   41         requirement if they contain specified information;
   42         requiring massage establishments to maintain such
   43         records for a specified timeframe; requiring massage
   44         establishments to collect and record specified
   45         information and confirm the identification of a
   46         customer or patient before providing services or
   47         treatment; requiring the board to adopt certain rules;
   48         providing for summary suspension of massage
   49         establishment licenses under certain circumstances;
   50         amending s. 480.0465, F.S.; revising advertising
   51         requirements for massage therapists and massage
   52         establishments; amending s. 480.0475, F.S.; revising
   53         hours during which a massage establishment may
   54         operate; requiring all customer and patient services
   55         and treatment to be performed within specified hours;
   56         prohibiting establishments from sheltering or
   57         harboring, or being used as sleeping quarters for, any
   58         person; providing criminal penalties; providing for
   59         summary suspension of massage establishment licenses
   60         under certain circumstances; amending s. 480.0485,
   61         F.S.; specifying additional conduct that constitutes
   62         sexual misconduct in the practice of massage therapy;
   63         amending s. 480.0535, F.S.; requiring department
   64         investigators to request valid government
   65         identification from all employees while in a massage
   66         establishment; specifying additional documents a
   67         person operating a massage establishment must
   68         immediately present, upon request, to department
   69         investigators and law enforcement officers; providing
   70         for summary suspension of massage establishment
   71         licenses under certain circumstances; requiring the
   72         department to notify a federal immigration office if
   73         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
   78         severability; providing an effective date.
   79          
   80  Be It Enacted by the Legislature of the State of Florida:
   81  
   82         Section 1. Present subsections (1) through (6) and (7)
   83  through (12) of section 480.033, Florida Statutes, are
   84  redesignated as subsections (2) through (7) and (9) through
   85  (14), respectively, new subsections (1) and (8) and subsection
   86  (15) are added to that section, and present subsection (6) of
   87  that section is amended, to read:
   88         480.033 Definitions.—As used in this act:
   89         (1)“Advertising medium” means any newspaper; airwave or
   90  computer transmission; telephone directory listing, other than
   91  an in-column listing consisting only of a name, physical
   92  address, and telephone number; business card; handbill; flyer;
   93  sign, other than a building directory listing all building
   94  tenants and their room or suite numbers; or other form of
   95  written or electronic advertisement.
   96         (7)(6) “Designated establishment manager” means a massage
   97  therapist or a physician licensed under chapter 457, chapter
   98  458, chapter 459, or chapter 460 who holds a clear and active
   99  license without restriction, who is responsible for the
  100  operation of a massage establishment in accordance with the
  101  provisions of this chapter, and who is designated the manager by
  102  the rules or practices at the establishment.
  103         (8)“Employee” means any person, including independent
  104  contractors or lessees of the massage establishment, whose
  105  duties involve any aspect of the massage establishment
  106  regardless of whether such person is compensated for the
  107  performance of such duties. The term does not include a person
  108  exclusively engaged in the repair or maintenance of the massage
  109  establishment or the delivery of goods to the massage
  110  establishment.
  111         (15)“Sexual activity” means any direct or indirect contact
  112  by any employee or person, or between any employees or persons,
  113  with the intent to abuse, humiliate, harass, degrade, or arouse,
  114  or gratify the sexual desire of, any employee or person, or
  115  which is likely to cause such abuse, humiliation, harassment,
  116  degradation, or arousal, or sexual gratification:
  117         (a)With or without the consent of the employee or person;
  118         (b)With or without verbal or nonverbal communication that
  119  the sexual activity is undesired;
  120         (c)With or without the use of any device or object;
  121         (d)With or without the occurrence of penetration, orgasm,
  122  or ejaculation;
  123         (e)Including, but not limited to, intentional contact with
  124  the genitalia, groin, femoral triangle, anus, buttocks, gluteal
  125  cleft, breast or nipples, mouth, or tongue; and
  126         (f)Including, but not limited to, the intentional removal
  127  of any drape without written specific informed consent of the
  128  patient.
  129         Section 2. Subsection (5) of section 480.035, Florida
  130  Statutes, is amended to read:
  131         480.035 Board of Massage Therapy.—
  132         (5) The board shall hold such meetings during the year as
  133  it may determine to be necessary, one of which shall be the
  134  annual meeting. The chair of the board shall have the authority
  135  to call other meetings at her or his discretion. A quorum of the
  136  board shall consist of not less than a majority of the current
  137  membership of the board four members.
  138         Section 3. Section 480.039, Florida Statutes, is amended to
  139  read:
  140         480.039 Investigative services; summary suspensions;
  141  reporting.—
  142         (1) The department shall provide all investigative services
  143  required in carrying out the provisions of this act. A code
  144  enforcement officer may perform inspections regarding a massage
  145  establishment’s compliance with s. 480.043(14)(a), (b), and (c),
  146  and a law enforcement officer may perform inspections and
  147  investigations regarding a massage establishment’s compliance
  148  with s. 480.043(12) and (14)(a)-(f), s. 480.0465(3), s.
  149  480.0475(1) and (2), and s. 480.0535. Code enforcement officers
  150  shall, and law enforcement officers may, submit to the
  151  department an executed affidavit with photos and any other
  152  evidence obtained during the inspection or investigation within
  153  5 business days after the inspection or investigation that finds
  154  there is a violation of s. 480.043(12) or (14)(a), (b), (c),
  155  (d), (e), or (f), s. 480.0465(3), s. 480.0475(1) or (2), or s.
  156  480.0535. Within 20 business days after receipt of such executed
  157  affidavit, the department shall issue a summary suspension of
  158  the massage establishment license as described in s. 120.60(6)
  159  or s. 456.073(8).
  160         (2)If a law enforcement officer arrests a massage
  161  therapist for any violation of this chapter or determines that a
  162  massage establishment continues to operate following the
  163  issuance of a summary suspension by the department, the
  164  officer’s employing law enforcement agency shall notify the
  165  department within 5 business days after the arrest or
  166  determination of unlawful continued operation.
  167         Section 4. Present subsection (14) of section 480.043,
  168  Florida Statutes, is redesignated as subsection (15), and a new
  169  subsection (14) is added to that section, to read:
  170         480.043 Massage establishments; requisites; licensure;
  171  inspection; human trafficking awareness training and policies;
  172  prohibited acts.—
  173         (14)(a)Sexual activity in any massage establishment is
  174  prohibited. An establishment owner or employee may not engage in
  175  or allow any person to engage in sexual activity in the massage
  176  establishment or use the establishment to make arrangements to
  177  engage in sexual activity in another location. Prophylactic
  178  devices are prohibited in a massage establishment.
  179         (b)If there is an outside window or windows into the
  180  massage establishment’s reception area, the outside window or
  181  windows must allow for at least 35 percent light penetration,
  182  and no more than 50 percent of the outside window or windows may
  183  be obstructed with signage, thus allowing the public to see the
  184  massage establishment’s reception area. A sign must be posted on
  185  the front window of the massage establishment and include the
  186  name of the massage establishment, its license number, and the
  187  telephone number that has been provided to the department as
  188  part of the licensing of the massage establishment. This
  189  paragraph does not apply to a massage establishment within a
  190  public lodging establishment as defined in s. 509.013(4). This
  191  paragraph does not apply to a massage establishment located
  192  within a county or municipality that has an ordinance that
  193  prescribes requirements related to business window light
  194  penetration or signage limitations if compliance with this
  195  paragraph would result in noncompliance with such ordinance.
  196         (c)All employees within the massage establishment must be
  197  fully clothed and such clothing must be fully opaque and made of
  198  nontransparent material that does not expose the employee’s
  199  genitalia, undergarments, or lingerie.
  200         (d)A massage establishment must maintain a complete set of
  201  legible records in English or Spanish, which must include each
  202  employee’s start date of employment, full legal name, date of
  203  birth, home address, telephone number, and employment position
  204  and a copy of the employee’s government identification required
  205  under s. 480.0535. All information required under this paragraph
  206  must be recorded before the employee may provide any service or
  207  treatment to a customer or patient.
  208         (e)A massage establishment must conspicuously display a 2
  209  inch by 2-inch photo for each employee, which, for massage
  210  therapists, must be attached to the massage therapist’s license.
  211  Such display must also include the employee’s full legal name
  212  and employment position. All information required under this
  213  paragraph must be displayed before the employee may provide any
  214  service or treatment to a customer or patient. A massage
  215  establishment within a public lodging establishment as defined
  216  in s. 509.013(4) may satisfy this requirement by displaying the
  217  photos and required information in an employee break room or
  218  other room that is used by employees but is not used by
  219  customers or patients.
  220         (f)A massage establishment must maintain a complete set of
  221  legible records in English or Spanish, which must include the
  222  date, time, and type of service or treatment provided; the full
  223  legal name of the employee who provided the service or
  224  treatment; and the full legal name, home address, and telephone
  225  number of the customer or patient. Medical records may satisfy
  226  this requirement if the records include the specified
  227  information. A copy of the customer’s or patient’s photo
  228  identification may be used to provide the full legal name and
  229  home address of the customer or patient. Records required under
  230  this paragraph must be maintained for at least 1 year after the
  231  provision of the service or treatment. All information required
  232  under this paragraph must be collected and recorded before the
  233  provision of any service or treatment to a customer or patient.
  234  The massage establishment must confirm the identification of the
  235  customer or patient before the provision of any service or
  236  treatment to the customer or patient.
  237         (g)The board shall adopt rules governing the operation of
  238  massage establishments and their facilities, personnel, safety
  239  and sanitary requirements, financial responsibility, insurance
  240  coverage, and license application and granting process.
  241         (h)Failure to comply with this subsection shall result in
  242  summary suspension of the massage establishment license as
  243  described in s. 120.60(6) or s. 456.073(8).
  244         Section 5. Section 480.0465, Florida Statutes, is amended
  245  to read:
  246         480.0465 Advertisement; prohibitions.—
  247         (1) Each massage therapist or massage establishment
  248  licensed under this act shall include the number of the license
  249  in any advertisement of massage therapy services appearing in
  250  any advertising medium, including a newspaper, airwave
  251  transmission, telephone directory, Internet, or other
  252  advertising medium. Pending licensure of a new massage
  253  establishment under s. 480.043(7), the license number of a
  254  licensed massage therapist who is an owner or principal officer
  255  of the establishment may be used in lieu of the license number
  256  for the establishment. The advertisement must also include the
  257  physical address of the massage establishment and the telephone
  258  number that has been provided to the department as part of the
  259  licensing of the massage establishment. However, the inclusion
  260  of the physical address and telephone number is not required for
  261  an advertisement by a massage establishment whose establishment
  262  owner operates more than five locations in this state.
  263         (2)An establishment owner or employee may not place,
  264  publish, or distribute, or cause to be placed, published, or
  265  distributed, any advertisement in any advertising medium that
  266  states prostitution services, escort services, or sexual
  267  services are available.
  268         (3)A massage therapist or a massage establishment or its
  269  employees may not place, publish, or distribute, or cause to be
  270  placed, published, or distributed, any online advertisement on
  271  any website known for advertising prostitution services, escort
  272  services, or sexual services.
  273         Section 6. Section 480.0475, Florida Statutes, is amended
  274  to read:
  275         480.0475 Massage establishments; prohibited practices;
  276  penalties.—
  277         (1) A massage establishment may only be operated person may
  278  not operate a massage establishment between the hours of 5 a.m.
  279  and midnight and all customer and patient services and treatment
  280  must be performed between the hours of 5 a.m. and 10 p.m. This
  281  subsection does not apply to a massage establishment:
  282         (a) Located on the premises of a health care facility as
  283  defined in s. 408.07; a health care clinic as defined in s.
  284  400.9905(4); a hotel, motel, or bed and breakfast inn, as those
  285  terms are defined in s. 509.242; a timeshare property as defined
  286  in s. 721.05; a public airport as defined in s. 330.27; or a
  287  pari-mutuel facility as defined in s. 550.002;
  288         (b) In which every massage performed between the hours of
  289  10 p.m. midnight and 5 a.m. is performed by a massage therapist
  290  acting under the prescription of a physician or physician
  291  assistant licensed under chapter 458, an osteopathic physician
  292  or physician assistant licensed under chapter 459, a
  293  chiropractic physician licensed under chapter 460, a podiatric
  294  physician licensed under chapter 461, an advanced practice
  295  registered nurse licensed under part I of chapter 464, or a
  296  dentist licensed under chapter 466; or
  297         (c) Operating during a special event if the county or
  298  municipality in which the establishment operates has approved
  299  such operation during the special event.
  300         (2) A person operating a massage establishment may not use
  301  or permit the establishment to be used as a principal domicile
  302  for, to shelter or harbor, or as sleeping quarters for any
  303  person unless the establishment is zoned for residential use
  304  under a local ordinance.
  305         (3) A person violating the provisions of this section
  306  commits a misdemeanor of the first degree, punishable as
  307  provided in s. 775.082 or s. 775.083. A second or subsequent
  308  violation of this section is a felony of the third degree,
  309  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  310  Failure to comply with subsection (1) or subsection (2) shall
  311  result in summary suspension of the massage establishment
  312  license as described in s. 120.60(6) or s. 456.073(8).
  313         Section 7. Section 480.0485, Florida Statutes, is amended
  314  to read:
  315         480.0485 Sexual misconduct in the practice of massage
  316  therapy.—The massage therapist-patient relationship is founded
  317  on mutual trust. Sexual misconduct in the practice of massage
  318  therapy means violation of the massage therapist-patient
  319  relationship through which the massage therapist uses that
  320  relationship to induce or attempt to induce the patient to
  321  engage, or to engage or attempt to engage the patient, in sexual
  322  activity outside the scope of practice or the scope of generally
  323  accepted examination or treatment of the patient. Sexual
  324  misconduct in the practice of massage therapy includes requiring
  325  patient nudity as part of any massage service or any other
  326  service in the massage establishment or the intentional removal
  327  of any drape without the written specific informed consent of
  328  the patient. Sexual misconduct in the practice of massage
  329  therapy is prohibited.
  330         Section 8. Section 480.0535, Florida Statutes, is amended
  331  to read:
  332         480.0535 Documents required while working in a massage
  333  establishment; penalties; reporting requirement.—
  334         (1) In order to provide the department and law enforcement
  335  agencies the means to more effectively identify, investigate,
  336  and arrest persons engaging in human trafficking, an employee a
  337  person employed by a massage establishment and any person
  338  performing massage therapy in a massage establishment therein
  339  must immediately present, upon the request of an investigator of
  340  the department or a law enforcement officer, valid government
  341  identification while in the establishment. An investigator of
  342  the department must request valid government identification from
  343  all employees while in the establishment. A valid government
  344  identification for the purposes of this section is:
  345         (a) A valid, unexpired driver license issued by any state,
  346  territory, or district of the United States;
  347         (b) A valid, unexpired identification card issued by any
  348  state, territory, or district of the United States;
  349         (c) A valid, unexpired United States passport;
  350         (d) A naturalization certificate issued by the United
  351  States Department of Homeland Security;
  352         (e) A valid, unexpired alien registration receipt card
  353  (green card); or
  354         (f) A valid, unexpired employment authorization card issued
  355  by the United States Department of Homeland Security.
  356         (2) A person operating a massage establishment must:
  357         (a) Immediately present, upon the request of an
  358  investigator of the department or a law enforcement officer:
  359         1. Valid government identification while in the
  360  establishment.
  361         2. A copy of the documentation specified in paragraph
  362  (1)(a) for each employee and any person performing massage
  363  therapy in the establishment.
  364         3.A copy of the documents required under s. 480.043(14)(d)
  365  and (f).
  366         (b) Ensure that each employee and any person performing
  367  massage therapy in the massage establishment is able to
  368  immediately present, upon the request of an investigator of the
  369  department or a law enforcement officer, valid government
  370  identification while in the establishment.
  371         (3) A person who violates any provision of this section
  372  commits:
  373         (a) For a first violation, a misdemeanor of the second
  374  degree, punishable as provided in s. 775.082 or s. 775.083.
  375         (b) For a second violation, a misdemeanor of the first
  376  degree, punishable as provided in s. 775.082 or s. 775.083.
  377         (c) For a third or subsequent violation, a felony of the
  378  third degree, punishable as provided in s. 775.082, s. 775.083,
  379  or s. 775.084.
  380         (4)Failure to comply with this section shall result in
  381  summary suspension of the massage establishment license as
  382  described in s. 120.60(6) or s. 456.073(8).
  383         (5)The department shall notify a federal immigration
  384  office if a person operating a massage establishment, an
  385  employee, or any person performing massage therapy in a massage
  386  establishment fails to provide a valid government identification
  387  as required under this section.
  388         Section 9. Paragraph (d) of subsection (2) of section
  389  847.001, Florida Statutes, is amended to read:
  390         847.001 Definitions.—As used in this chapter, the term:
  391         (2) “Adult entertainment establishment” means the following
  392  terms as defined:
  393         (d) “Unlicensed massage establishment” means any business
  394  or enterprise that offers, sells, or provides, or that holds
  395  itself out as offering, selling, or providing, massages that
  396  include bathing, physical massage, rubbing, kneading, anointing,
  397  stroking, manipulating, or other tactile stimulation of the
  398  human body by either male or female employees or attendants,
  399  including employees or attendants who are massage therapists
  400  licensed under s. 480.041, by hand or by any electrical or
  401  mechanical device, on or off the premises. The term “unlicensed
  402  massage establishment” does not include an establishment
  403  licensed under s. 480.043 which routinely provides medical
  404  services by state-licensed health care practitioners and massage
  405  therapists licensed under s. 480.041.
  406         Section 10. If any provision of this act or its application
  407  to any person or circumstance is held invalid, the invalidity
  408  does not affect other provisions or applications of the act
  409  which can be given effect without the invalid provision or
  410  application, and to this end the provisions of this act are
  411  severable.
  412         Section 11. This act shall take effect July 1, 2023.