Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. SB 1338
       
       
       
       
       
       
                                Ì535992LÎ535992                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/04/2023           .                                
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       The Committee on Health Policy (Martin) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (4) of section 456.074, Florida
    6  Statutes, is amended, and subsection (7) is added to that
    7  section, to read:
    8         456.074 Certain health care practitioners; immediate
    9  suspension of license.—
   10         (4) The department shall issue an emergency order
   11  suspending the license of a massage therapist and or
   12  establishment as those terms are defined in chapter 480 upon
   13  receipt of information that the massage therapist, the
   14  designated establishment manager as defined in chapter 480, an
   15  employee of the establishment, a person with an ownership
   16  interest in the establishment, or, for a corporation that has
   17  more than $250,000 of business assets in this state, the owner,
   18  officer, or individual directly involved in the management of
   19  the establishment has been arrested for committing or
   20  attempting, soliciting, or conspiring to commit, or convicted or
   21  found guilty of, or has entered a plea of guilty or nolo
   22  contendere to, regardless of adjudication, a violation of s.
   23  796.07 s. 796.07(2)(a) which is reclassified under s. 796.07(7)
   24  or a felony offense under any of the following provisions of
   25  state law or a similar provision in another jurisdiction:
   26         (a) Section 787.01, relating to kidnapping.
   27         (b) Section 787.02, relating to false imprisonment.
   28         (c) Section 787.025, relating to luring or enticing a
   29  child.
   30         (d) Section 787.06, relating to human trafficking.
   31         (e) Section 787.07, relating to human smuggling.
   32         (f) Section 794.011, relating to sexual battery.
   33         (g) Section 794.08, relating to female genital mutilation.
   34         (h) Former s. 796.03, relating to procuring a person under
   35  the age of 18 for prostitution.
   36         (i) Former s. 796.035, relating to the selling or buying of
   37  minors into prostitution.
   38         (j) Section 796.04, relating to forcing, compelling, or
   39  coercing another to become a prostitute.
   40         (k) Section 796.05, relating to deriving support from the
   41  proceeds of prostitution.
   42         (l) Section 796.07(4)(a)3., relating to a felony of the
   43  third degree for a third or subsequent violation of s. 796.07,
   44  relating to prohibiting prostitution and related acts.
   45         (m) Section 800.04, relating to lewd or lascivious offenses
   46  committed upon or in the presence of persons less than 16 years
   47  of age.
   48         (n) Section 825.1025(2)(b), relating to lewd or lascivious
   49  offenses committed upon or in the presence of an elderly or
   50  disabled person.
   51         (o) Section 827.071, relating to sexual performance by a
   52  child.
   53         (p) Section 847.0133, relating to the protection of minors.
   54         (q) Section 847.0135, relating to computer pornography.
   55         (r) Section 847.0138, relating to the transmission of
   56  material harmful to minors to a minor by electronic device or
   57  equipment.
   58         (s) Section 847.0145, relating to the selling or buying of
   59  minors.
   60         (7)The department shall issue an emergency order
   61  suspending the license of any licensee upon a finding of the
   62  State Surgeon General that probable cause exists to believe that
   63  the licensee has committed sexual misconduct as defined and
   64  prohibited in s. 456.063(1), or the applicable practice act, and
   65  that such violation constitutes an immediate danger to the
   66  public.
   67         Section 2. Present subsections (1) through (6) and (7)
   68  through (12) of section 480.033, Florida Statutes, are
   69  redesignated as subsections (2) through (7) and (9) through
   70  (14), respectively, new subsections (1) and (8) and subsection
   71  (15) are added to that section, and present subsection (6) of
   72  that section is amended, to read:
   73         480.033 Definitions.—As used in this act:
   74         (1)“Advertising medium” means any newspaper; airwave or
   75  computer transmission; telephone directory listing, other than
   76  an in-column listing consisting only of a name, physical
   77  address, and telephone number; business card; handbill; flyer;
   78  sign, other than a building directory listing all building
   79  tenants and their room or suite numbers; or other form of
   80  written or electronic advertisement.
   81         (7)(6) “Designated establishment manager” means a massage
   82  therapist, a health care practitioner licensed under chapter
   83  457, or a physician licensed under chapter 458, chapter 459, or
   84  chapter 460 who holds a clear and active license without
   85  restriction, who is responsible for the operation of a massage
   86  establishment in accordance with the provisions of this chapter,
   87  and who is designated the manager by the rules or practices at
   88  the establishment.
   89         (8)“Employee” means any person, including independent
   90  contractors or lessees of the massage establishment, whose
   91  duties involve any aspect of the massage establishment
   92  regardless of whether such person is compensated for the
   93  performance of such duties. The term does not include a person
   94  exclusively engaged in the repair or maintenance of the massage
   95  establishment or the delivery of goods to the massage
   96  establishment. This definition applies to chapter 480 only.
   97         (15)“Sexual activity” means any direct or indirect contact
   98  by any employee or person, or between any employees or persons,
   99  with the intent to abuse, humiliate, harass, degrade, or arouse,
  100  or gratify the sexual desire of, any employee or person, or
  101  which is likely to cause such abuse, humiliation, harassment,
  102  degradation, or arousal, or sexual gratification:
  103         (a)With or without the consent of the employee or person;
  104         (b)With or without verbal or nonverbal communication that
  105  the sexual activity is undesired;
  106         (c)With or without the use of any device or object;
  107         (d)With or without the occurrence of penetration, orgasm,
  108  or ejaculation;
  109         (e)Including, but not limited to, intentional contact with
  110  the genitalia, groin, femoral triangle, anus, buttocks, gluteal
  111  cleft, breast or nipples, mouth, or tongue; and
  112         (f)Including, but not limited to, the intentional removal
  113  of any drape without written specific informed consent of the
  114  patient.
  115         Section 3. Subsection (5) of section 480.035, Florida
  116  Statutes, is amended to read:
  117         480.035 Board of Massage Therapy.—
  118         (5) The board shall hold such meetings during the year as
  119  it may determine to be necessary, one of which shall be the
  120  annual meeting. The chair of the board shall have the authority
  121  to call other meetings at her or his discretion. A quorum of the
  122  board shall consist of not less than a majority of the current
  123  membership of the board four members.
  124         Section 4. Section 480.039, Florida Statutes, is amended to
  125  read:
  126         480.039 Investigative services; reporting.—
  127         (1) The department shall provide all investigative services
  128  required in carrying out the provisions of this act. A code
  129  enforcement officer may perform inspections regarding a massage
  130  establishment’s compliance with s. 480.043(14)(a), (b), and (c),
  131  and a law enforcement officer may perform inspections and
  132  investigations regarding a massage establishment’s compliance
  133  with ss. 480.043(12) and (14)(a)-(f), 480.0465(3), 480.0475(1)
  134  and (2), and 480.0535. Code enforcement officers shall, and law
  135  enforcement officers may, submit to the department an executed
  136  affidavit with photos and any other evidence or documentation
  137  obtained during the inspection or investigation within 5
  138  business days after the inspection or investigation that finds
  139  there is a violation of s. 480.043(12) or (14)(a), (b), (c),
  140  (d), (e), or (f), s. 480.0465(3), s. 480.0475(1) or (2), or s.
  141  480.0535. For violations of s. 480.043(14)(a) or (f), s.
  142  480.0465(3), s. 480.0475(2), or s. 480.0535, within 20 business
  143  days after receipt of such executed affidavit, the department
  144  shall issue an emergency order suspending the license of the
  145  massage establishment. For violations of s. 480.043(12) or
  146  (14)(b), (c), (d), or (e) or s. 480.0475(1), within 30 business
  147  days after receipt of an executed affidavit, the department
  148  shall inspect the massage establishment to ensure the massage
  149  establishment’s compliance with this chapter, and, if the
  150  massage establishment is not in compliance with this chapter,
  151  the department shall initiate a disciplinary proceeding.
  152         (2)If a law enforcement officer arrests a massage
  153  therapist for any violation of this chapter or determines that a
  154  massage establishment continues to operate following the
  155  issuance of an emergency suspension or restriction by the
  156  department, the officer’s employing law enforcement agency shall
  157  notify the department within 5 business days after the arrest or
  158  determination of unlawful continued operation.
  159         Section 5. Present subsection (14) of section 480.043,
  160  Florida Statutes, is redesignated as subsection (15) and
  161  amended, a new subsection (14) is added to that section, and
  162  subsection (3) of that section is amended, to read:
  163         480.043 Massage establishments; requisites; licensure;
  164  inspection; human trafficking awareness training and policies;
  165  prohibited acts.—
  166         (3) The board shall adopt rules governing the operation of
  167  establishments and their facilities, employees personnel, safety
  168  and sanitary requirements, financial responsibility, insurance
  169  coverage, and the license application and granting process.
  170         (14)(a)Sexual activity in any massage establishment is
  171  prohibited. An establishment owner or employee may not engage in
  172  or allow any person to engage in sexual activity in the massage
  173  establishment or use the establishment to make arrangements to
  174  engage in sexual activity in another location. Prophylactic
  175  devices are prohibited in a massage establishment.
  176         (b)If there is an outside window or windows into the
  177  massage establishment’s reception area, the outside window or
  178  windows must allow for at least 35 percent light penetration,
  179  and no more than 50 percent of the outside window or windows may
  180  be obstructed with signage, blinds, curtains, or other
  181  obstructions, thus allowing the public to see the massage
  182  establishment’s reception area. A sign must be posted on the
  183  front window of the massage establishment and include the name
  184  of the massage establishment, its license number, and the
  185  telephone number that has been provided to the department as
  186  part of the licensing of the massage establishment. This
  187  paragraph does not apply to a massage establishment within a
  188  public lodging establishment as defined in s. 509.013(4). This
  189  paragraph does not apply to a massage establishment located
  190  within a county or municipality that has an ordinance that
  191  prescribes requirements related to business window light
  192  penetration or signage limitations if compliance with this
  193  paragraph would result in noncompliance with such ordinance.
  194         (c)All employees within the massage establishment must be
  195  fully clothed and such clothing must be fully opaque and made of
  196  nontransparent material that does not expose the employee’s
  197  genitalia, undergarments, or lingerie.
  198         (d)A massage establishment must maintain a complete set of
  199  legible records in English or Spanish, which must include each
  200  employee’s start date of employment, full legal name, date of
  201  birth, home address, telephone number, and employment position
  202  and a copy of the employee’s government identification required
  203  under s. 480.0535. All information required under this paragraph
  204  must be recorded before the employee may provide any service or
  205  treatment to a customer or patient.
  206         (e)A massage establishment must conspicuously display a 2
  207  inch by 2-inch photo for each employee, which, for massage
  208  therapists, must be attached to the massage therapist’s license.
  209  Such display must also include the employee’s full legal name
  210  and employment position. All information required under this
  211  paragraph must be displayed before the employee may provide any
  212  service or treatment to a customer or patient. A massage
  213  establishment within a public lodging establishment as defined
  214  in s. 509.013(4) may satisfy this requirement by displaying the
  215  photos and required information in an employee break room or
  216  other room that is used by employees but is not used by
  217  customers or patients.
  218         (f)A massage establishment must maintain a complete set of
  219  legible records in English or Spanish, which must include the
  220  date, time, and type of service or treatment provided; the full
  221  legal name of the employee who provided the service or
  222  treatment; and the full legal name, home address, and telephone
  223  number of the customer or patient. Medical records may satisfy
  224  this requirement if the records include the specified
  225  information. A copy of the customer’s or patient’s photo
  226  identification may be used to provide the full legal name and
  227  home address of the customer or patient. Records required under
  228  this paragraph must be maintained for at least 1 year after the
  229  provision of the service or treatment. All information required
  230  under this paragraph must be collected and recorded before the
  231  provision of any service or treatment to a customer or patient.
  232  The massage establishment must confirm the identification of the
  233  customer or patient before the provision of any service or
  234  treatment to the customer or patient.
  235         (15)(14) Except for the requirements of subsection (13),
  236  this section does not apply to a practitioner physician licensed
  237  under chapter 457 or a physician licensed under, chapter 458,
  238  chapter 459, or chapter 460 who employs a licensed massage
  239  therapist to perform massage therapy on the practitioner’s or
  240  physician’s patients at the his or her physician’s place of
  241  practice. This subsection does not restrict investigations by
  242  the department for violations of chapter 456 or this chapter.
  243         Section 6. Section 480.0465, Florida Statutes, is amended
  244  to read:
  245         480.0465 Advertisement; prohibitions.—
  246         (1) Each massage therapist or massage establishment
  247  licensed under this act shall include the number of the license
  248  in any advertisement of massage therapy services appearing in
  249  any advertising medium, including a newspaper, airwave
  250  transmission, telephone directory, Internet, or other
  251  advertising medium. Pending licensure of a new massage
  252  establishment under s. 480.043(7), the license number of a
  253  licensed massage therapist who is an owner or principal officer
  254  of the establishment may be used in lieu of the license number
  255  for the establishment. The advertisement must also include the
  256  physical address of the massage establishment and the telephone
  257  number that has been provided to the department as part of the
  258  licensing of the massage establishment. However, the inclusion
  259  of the physical address and telephone number is not required for
  260  an advertisement by a massage establishment whose establishment
  261  owner operates more than five locations in this state.
  262         (2)An establishment owner or employee may not place,
  263  publish, or distribute, or cause to be placed, published, or
  264  distributed, any advertisement in any advertising medium which
  265  states prostitution services, escort services, or sexual
  266  services are available.
  267         (3)A massage therapist or a massage establishment or its
  268  employees may not place, publish, or distribute, or cause to be
  269  placed, published, or distributed, any online advertisement on
  270  any website known for advertising prostitution services, escort
  271  services, or sexual services.
  272         Section 7. Section 480.0475, Florida Statutes, is amended
  273  to read:
  274         480.0475 Massage establishments; prohibited practices;
  275  penalties.—
  276         (1) A massage establishment may only be operated person may
  277  not operate a massage establishment between the hours of 5 a.m.
  278  and midnight and all customer and patient services and treatment
  279  must be performed between the hours of 5 a.m. and 10 p.m. This
  280  subsection does not apply to a massage establishment:
  281         (a) Located on the premises of a health care facility as
  282  defined in s. 408.07; a health care clinic as defined in s.
  283  400.9905(4); a hotel, motel, or bed and breakfast inn, as those
  284  terms are defined in s. 509.242; a timeshare property as defined
  285  in s. 721.05; a public airport as defined in s. 330.27; or a
  286  pari-mutuel facility as defined in s. 550.002;
  287         (b) In which every massage performed between the hours of
  288  10 p.m. midnight and 5 a.m. is performed by a massage therapist
  289  acting under the prescription of a physician or physician
  290  assistant licensed under chapter 458, an osteopathic physician
  291  or physician assistant licensed under chapter 459, a
  292  chiropractic physician licensed under chapter 460, a podiatric
  293  physician licensed under chapter 461, an advanced practice
  294  registered nurse licensed under part I of chapter 464, or a
  295  dentist licensed under chapter 466; or
  296         (c) Operating during a special event if the county or
  297  municipality in which the establishment operates has approved
  298  such operation during the special event.
  299         (2) A person operating a massage establishment may not use
  300  or permit the establishment to be used as a principal domicile
  301  for, to shelter or harbor, or as sleeping quarters for any
  302  person unless the establishment is zoned for residential use
  303  under a local ordinance.
  304         (3) A person violating the provisions of this section
  305  commits a misdemeanor of the first degree, punishable as
  306  provided in s. 775.082 or s. 775.083. A second or subsequent
  307  violation of this section is a felony of the third degree,
  308  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  309         Section 8. Section 480.0485, Florida Statutes, is amended
  310  to read:
  311         480.0485 Sexual misconduct in the practice of massage
  312  therapy.—The massage therapist-patient relationship is founded
  313  on mutual trust. Sexual misconduct in the practice of massage
  314  therapy means violation of the massage therapist-patient
  315  relationship through which the massage therapist uses that
  316  relationship to induce or attempt to induce the patient to
  317  engage, or to engage or attempt to engage the patient, in sexual
  318  activity outside the scope of practice or the scope of generally
  319  accepted examination or treatment of the patient. Sexual
  320  misconduct in the practice of massage therapy includes requiring
  321  patient nudity as part of any massage service or any other
  322  service in the massage establishment or the intentional removal
  323  of any drape without the written specific informed consent of
  324  the patient. Sexual misconduct in the practice of massage
  325  therapy is prohibited.
  326         Section 9. Section 480.0535, Florida Statutes, is amended
  327  to read:
  328         480.0535 Documents required while working in a massage
  329  establishment; penalties; reporting requirement.—
  330         (1) In order to provide the department and law enforcement
  331  agencies the means to more effectively identify, investigate,
  332  and arrest persons engaging in human trafficking, an employee a
  333  person employed by a massage establishment and any person
  334  performing massage therapy in a massage establishment therein
  335  must immediately present, upon the request of an investigator of
  336  the department or a law enforcement officer, valid government
  337  identification while in the establishment. An investigator of
  338  the department must request valid government identification from
  339  all employees while in the establishment. A valid government
  340  identification for the purposes of this section is:
  341         (a) A valid, unexpired driver license issued by any state,
  342  territory, or district of the United States;
  343         (b) A valid, unexpired identification card issued by any
  344  state, territory, or district of the United States;
  345         (c) A valid, unexpired United States passport;
  346         (d) A naturalization certificate issued by the United
  347  States Department of Homeland Security;
  348         (e) A valid, unexpired alien registration receipt card
  349  (green card); or
  350         (f) A valid, unexpired employment authorization card issued
  351  by the United States Department of Homeland Security.
  352         (2) A person operating a massage establishment must:
  353         (a) Immediately present, upon the request of an
  354  investigator of the department or a law enforcement officer:
  355         1. Valid government identification while in the
  356  establishment.
  357         2. A copy of the documentation specified in paragraph
  358  (1)(a) for each employee and any person performing massage
  359  therapy in the establishment.
  360         3.A copy of the documents required under s. 480.043(14)(d)
  361  and (f).
  362         (b) Ensure that each employee and any person performing
  363  massage therapy in the massage establishment is able to
  364  immediately present, upon the request of an investigator of the
  365  department or a law enforcement officer, valid government
  366  identification while in the establishment.
  367         (3) A person who violates any provision of this section
  368  commits:
  369         (a) For a first violation, a misdemeanor of the second
  370  degree, punishable as provided in s. 775.082 or s. 775.083.
  371         (b) For a second violation, a misdemeanor of the first
  372  degree, punishable as provided in s. 775.082 or s. 775.083.
  373         (c) For a third or subsequent violation, a felony of the
  374  third degree, punishable as provided in s. 775.082, s. 775.083,
  375  or s. 775.084.
  376         (4)The department shall notify a federal immigration
  377  office if a person operating a massage establishment, an
  378  employee, or any person performing massage therapy in a massage
  379  establishment fails to provide a valid government identification
  380  as required under this section.
  381         Section 10. Paragraph (d) of subsection (2) of section
  382  847.001, Florida Statutes, is amended to read:
  383         847.001 Definitions.—As used in this chapter, the term:
  384         (2) “Adult entertainment establishment” means the following
  385  terms as defined:
  386         (d) “Unlicensed massage establishment” means any business
  387  or enterprise that offers, sells, or provides, or that holds
  388  itself out as offering, selling, or providing, massages that
  389  include bathing, physical massage, rubbing, kneading, anointing,
  390  stroking, manipulating, or other tactile stimulation of the
  391  human body by either male or female employees or attendants,
  392  including employees or attendants who are massage therapists
  393  licensed under s. 480.041, by hand or by any electrical or
  394  mechanical device, on or off the premises. The term “unlicensed
  395  massage establishment” does not include an establishment
  396  licensed under s. 480.043 which routinely provides medical
  397  services by state-licensed health care practitioners and massage
  398  therapists licensed under s. 480.041.
  399         Section 11. This act shall take effect July 1, 2023.
  400  
  401  ================= T I T L E  A M E N D M E N T ================
  402  And the title is amended as follows:
  403         Delete everything before the enacting clause
  404  and insert:
  405                        A bill to be entitled                      
  406         An act relating to massage establishments; amending s.
  407         456.074, F.S.; authorizing the Department of Health to
  408         immediately suspend the license of massage therapists
  409         and massage establishments if the massage therapist or
  410         certain individuals connected to the massage
  411         establishment are arrested for, convicted or found
  412         guilty of, or enter criminal pleas to specified
  413         violations; amending s. 480.033, F.S.; providing and
  414         revising definitions; amending s. 480.035, F.S.;
  415         revising quorum requirements for the Board of Massage
  416         Therapy; amending s. 480.039, F.S.; authorizing
  417         specified enforcement officers to perform inspections
  418         and investigations of massage establishments for
  419         specified purposes; requiring code enforcement
  420         officers, and authorizing law enforcement officers, to
  421         submit affidavits with specified photos and other
  422         evidence and documentation to the department within a
  423         specified timeframe; requiring certain law enforcement
  424         agencies to notify the department within a specified
  425         timeframe after discovering certain violations by a
  426         massage therapist or massage establishment; requiring
  427         the department to inspect a massage establishment
  428         within a specified timeframe for specified violations
  429         and to initiate disciplinary proceedings if violations
  430         are discovered; amending s. 480.043, F.S.; revising
  431         certain rules the board is required to adopt;
  432         prohibiting sexual activity and certain devices in
  433         massage establishments; specifying prohibited conduct
  434         by massage establishment owners and employees;
  435         providing requirements for outside windows and signs
  436         in massage establishments; providing exceptions;
  437         providing employee dress code requirements; requiring
  438         establishments to maintain certain employment records
  439         in English and Spanish; requiring that specified
  440         information be recorded before an employee may provide
  441         services or treatment; requiring massage
  442         establishments to conspicuously display a photo and
  443         specified information for each employee; requiring
  444         that such photos and information be displayed before
  445         an employee may provide services or treatment;
  446         providing for such requirements in massage
  447         establishments within public lodging establishments;
  448         requiring massage establishments to maintain customer
  449         and patient records for services and treatment
  450         provided in the massage establishment in English and
  451         Spanish; providing that medical records satisfy this
  452         requirement if they contain specified information;
  453         requiring massage establishments to maintain such
  454         records for a specified timeframe; requiring massage
  455         establishments to collect and record specified
  456         information and confirm the identification of a
  457         customer or patient before providing services or
  458         treatment; amending s. 480.0465, F.S.; revising
  459         advertising requirements for massage therapists and
  460         massage establishments; amending s. 480.0475, F.S.;
  461         revising hours during which a massage establishment
  462         may operate; requiring that all customer and patient
  463         services and treatment be performed within specified
  464         hours; prohibiting establishments from sheltering or
  465         harboring, or being used as sleeping quarters for, any
  466         person; providing criminal penalties; amending s.
  467         480.0485, F.S.; specifying additional conduct that
  468         constitutes sexual misconduct in the practice of
  469         massage therapy; amending s. 480.0535, F.S.; requiring
  470         department investigators to request valid government
  471         identification from all employees while in a massage
  472         establishment; specifying additional documents a
  473         person operating a massage establishment must
  474         immediately present, upon request, to department
  475         investigators and law enforcement officers; requiring
  476         the department to notify a federal immigration office
  477         if specified persons fail to provide valid government
  478         identification; amending s. 847.001, F.S.; revising
  479         the definitions of the terms “adult entertainment
  480         establishment” and “unlicensed massage establishment”
  481         for purposes of certain criminal conduct; providing an
  482         effective date.