Florida Senate - 2023 CS for CS for SB 1338
By the Appropriations Committee on Health and Human Services;
the Committee on Health Policy; and Senator Martin
603-03950-23 20231338c2
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; revising
28 the timeframe in which massage establishment owners
29 must report specified information to the department;
30 prohibiting sexual activity and certain devices in
31 massage establishments; specifying prohibited conduct
32 by massage establishment owners and employees;
33 providing requirements for outside windows and signs
34 in massage establishments; providing exceptions;
35 providing employee dress code requirements; requiring
36 establishments to maintain certain employment records
37 in English or Spanish; requiring that specified
38 information be recorded before an employee may provide
39 services or treatment; requiring massage
40 establishments to conspicuously display a photo and
41 specified information for each employee; requiring
42 that such photos and information be displayed before
43 an employee may provide services or treatment;
44 providing for such requirements in massage
45 establishments within public lodging establishments;
46 requiring massage establishments to maintain customer
47 and patient records for services and treatment
48 provided in the massage establishment in English or
49 Spanish; providing that medical records satisfy this
50 requirement if they contain specified information;
51 requiring massage establishments to maintain such
52 records for a specified timeframe; requiring massage
53 establishments to collect and record specified
54 information and confirm the identification of a
55 customer or patient before providing services or
56 treatment; amending s. 480.0465, F.S.; revising
57 advertising requirements for massage therapists and
58 massage establishments; amending s. 480.0475, F.S.;
59 revising hours during which a massage establishment
60 may operate; requiring that all customer and patient
61 services and treatment be performed within specified
62 hours; prohibiting establishments from sheltering or
63 harboring, or being used as sleeping quarters for, any
64 person; providing criminal penalties; amending s.
65 480.0485, F.S.; specifying additional conduct that
66 constitutes sexual misconduct in the practice of
67 massage therapy; amending s. 480.0535, F.S.; requiring
68 department investigators to request valid government
69 identification from all employees while in a massage
70 establishment; specifying additional documents a
71 person operating a massage establishment must
72 immediately present, upon request, to department
73 investigators and law enforcement officers; requiring
74 the department to notify a federal immigration office
75 if specified persons fail to provide valid government
76 identification; amending s. 847.001, F.S.; revising
77 the definitions of the terms “adult entertainment
78 establishment” and “unlicensed massage establishment”
79 for purposes of certain criminal conduct; providing an
80 appropriation; providing an effective date.
81
82 Be It Enacted by the Legislature of the State of Florida:
83
84 Section 1. Subsection (4) of section 456.074, Florida
85 Statutes, is amended, and subsection (7) is added to that
86 section, to read:
87 456.074 Certain health care practitioners; immediate
88 suspension of license.—
89 (4) The department shall issue an emergency order
90 suspending the license of a massage therapist and or
91 establishment as those terms are defined in chapter 480 upon
92 receipt of information that the massage therapist, the
93 designated establishment manager as defined in chapter 480, an
94 employee of the establishment, a person with an ownership
95 interest in the establishment, or, for a corporation that has
96 more than $250,000 of business assets in this state, the owner,
97 officer, or individual directly involved in the management of
98 the establishment has been arrested for committing or
99 attempting, soliciting, or conspiring to commit, or convicted or
100 found guilty of, or has entered a plea of guilty or nolo
101 contendere to, regardless of adjudication, a violation of s.
102 796.07 s. 796.07(2)(a) which is reclassified under s. 796.07(7)
103 or a felony offense under any of the following provisions of
104 state law or a similar provision in another jurisdiction:
105 (a) Section 787.01, relating to kidnapping.
106 (b) Section 787.02, relating to false imprisonment.
107 (c) Section 787.025, relating to luring or enticing a
108 child.
109 (d) Section 787.06, relating to human trafficking.
110 (e) Section 787.07, relating to human smuggling.
111 (f) Section 794.011, relating to sexual battery.
112 (g) Section 794.08, relating to female genital mutilation.
113 (h) Former s. 796.03, relating to procuring a person under
114 the age of 18 for prostitution.
115 (i) Former s. 796.035, relating to the selling or buying of
116 minors into prostitution.
117 (j) Section 796.04, relating to forcing, compelling, or
118 coercing another to become a prostitute.
119 (k) Section 796.05, relating to deriving support from the
120 proceeds of prostitution.
121 (l) Section 796.07(4)(a)3., relating to a felony of the
122 third degree for a third or subsequent violation of s. 796.07,
123 relating to prohibiting prostitution and related acts.
124 (m) Section 800.04, relating to lewd or lascivious offenses
125 committed upon or in the presence of persons less than 16 years
126 of age.
127 (n) Section 825.1025(2)(b), relating to lewd or lascivious
128 offenses committed upon or in the presence of an elderly or
129 disabled person.
130 (o) Section 827.071, relating to sexual performance by a
131 child.
132 (p) Section 847.0133, relating to the protection of minors.
133 (q) Section 847.0135, relating to computer pornography.
134 (r) Section 847.0138, relating to the transmission of
135 material harmful to minors to a minor by electronic device or
136 equipment.
137 (s) Section 847.0145, relating to the selling or buying of
138 minors.
139 (7) The department shall issue an emergency order
140 suspending the license of any licensee upon a finding of the
141 State Surgeon General that probable cause exists to believe that
142 the licensee has committed sexual misconduct as defined and
143 prohibited in s. 456.063(1), or the applicable practice act, and
144 that such violation constitutes an immediate danger to the
145 public.
146 Section 2. Present subsections (1) through (6) and (7)
147 through (12) of section 480.033, Florida Statutes, are
148 redesignated as subsections (2) through (7) and (9) through
149 (14), respectively, new subsections (1) and (8) and subsection
150 (15) are added to that section, and present subsection (6) of
151 that section is amended, to read:
152 480.033 Definitions.—As used in this act:
153 (1) “Advertising medium” means any newspaper; airwave or
154 computer transmission; telephone directory listing, other than
155 an in-column listing consisting only of a name, physical
156 address, and telephone number; business card; handbill; flyer;
157 sign, other than a building directory listing all building
158 tenants and their room or suite numbers; or other form of
159 written or electronic advertisement.
160 (7)(6) “Designated establishment manager” means a massage
161 therapist, a health care practitioner licensed under chapter
162 457, or a physician licensed under chapter 458, chapter 459, or
163 chapter 460 who holds a clear and active license without
164 restriction, who is responsible for the operation of a massage
165 establishment in accordance with the provisions of this chapter,
166 and who is designated the manager by the rules or practices at
167 the establishment.
168 (8) “Employee” means any person, including independent
169 contractors or lessees of the massage establishment, whose
170 duties involve any aspect of the massage establishment
171 regardless of whether such person is compensated for the
172 performance of such duties. The term does not include a person
173 exclusively engaged in the repair or maintenance of the massage
174 establishment or the delivery of goods to the massage
175 establishment. This definition applies to chapter 480 only.
176 (15) “Sexual activity” means any direct or indirect contact
177 by any employee or person, or between any employees or persons,
178 with the intent to abuse, humiliate, harass, degrade, or arouse,
179 or gratify the sexual desire of, any employee or person, or
180 which is likely to cause such abuse, humiliation, harassment,
181 degradation, or arousal, or sexual gratification:
182 (a) With or without the consent of the employee or person;
183 (b) With or without verbal or nonverbal communication that
184 the sexual activity is undesired;
185 (c) With or without the use of any device or object;
186 (d) With or without the occurrence of penetration, orgasm,
187 or ejaculation;
188 (e) Including, but not limited to, intentional contact with
189 the genitalia, groin, femoral triangle, anus, buttocks, gluteal
190 cleft, breast or nipples, mouth, or tongue; and
191 (f) Including, but not limited to, the intentional removal
192 of any drape without written specific informed consent of the
193 patient.
194 Section 3. Subsection (5) of section 480.035, Florida
195 Statutes, is amended to read:
196 480.035 Board of Massage Therapy.—
197 (5) The board shall hold such meetings during the year as
198 it may determine to be necessary, one of which shall be the
199 annual meeting. The chair of the board shall have the authority
200 to call other meetings at her or his discretion. A quorum of the
201 board shall consist of not less than a majority of the current
202 membership of the board four members.
203 Section 4. Section 480.039, Florida Statutes, is amended to
204 read:
205 480.039 Investigative services; reporting.—
206 (1) The department shall provide all investigative services
207 required in carrying out the provisions of this act. A code
208 enforcement officer may perform inspections regarding a massage
209 establishment’s compliance with s. 480.043(14)(a), (b), and (c),
210 and a law enforcement officer may perform inspections and
211 investigations regarding a massage establishment’s compliance
212 with ss. 480.043(12) and (14)(a)-(f), 480.0465(3), 480.0475(1)
213 and (2), and 480.0535. Code enforcement officers shall, and law
214 enforcement officers may, submit to the department an executed
215 affidavit with photos and any other evidence or documentation
216 obtained during the inspection or investigation within 5
217 business days after the inspection or investigation that finds
218 there is a violation of s. 480.043(12) or (14)(a), (b), (c),
219 (d), (e), or (f), s. 480.0465(3), s. 480.0475(1) or (2), or s.
220 480.0535. For violations of s. 480.043(14)(a) or (f), s.
221 480.0465(3), s. 480.0475(2), or s. 480.0535, within 20 business
222 days after receipt of such executed affidavit, the department
223 shall issue an emergency order suspending the license of the
224 massage establishment. For violations of s. 480.043(12) or
225 (14)(b), (c), (d), or (e) or s. 480.0475(1), within 30 business
226 days after receipt of an executed affidavit, the department
227 shall inspect the massage establishment to ensure the massage
228 establishment’s compliance with this chapter, and, if the
229 massage establishment is not in compliance with this chapter,
230 the department shall initiate a disciplinary proceeding.
231 (2) If a law enforcement officer arrests a massage
232 therapist for any violation of this chapter or determines that a
233 massage establishment continues to operate following the
234 issuance of an emergency suspension or restriction by the
235 department, the officer’s employing law enforcement agency shall
236 notify the department within 5 business days after the arrest or
237 determination of unlawful continued operation.
238 Section 5. Present subsection (14) of section 480.043,
239 Florida Statutes, is redesignated as subsection (15) and
240 amended, a new subsection (14) is added to that section, and
241 subsections (3) and (12) of that section are amended, to read:
242 480.043 Massage establishments; requisites; licensure;
243 inspection; human trafficking awareness training and policies;
244 prohibited acts.—
245 (3) The board shall adopt rules governing the operation of
246 establishments and their facilities, employees personnel, safety
247 and sanitary requirements, financial responsibility, insurance
248 coverage, and the license application and granting process.
249 (12) As a condition of licensure, a massage establishment
250 must have a designated establishment manager. The designated
251 establishment manager is responsible for complying with all
252 requirements related to operating the establishment in this
253 section and shall practice at the establishment for which he or
254 she has been designated. Within 30 10 days after termination of
255 a designated establishment manager, the establishment owner must
256 notify the department of the identity of another designated
257 establishment manager. Failure to have a designated
258 establishment manager practicing at the location of the
259 establishment shall result in summary suspension of the
260 establishment license as described in s. 456.073(8) or s.
261 120.60(6). An establishment licensed before July 1, 2019, must
262 identify a designated establishment manager by January 1, 2020.
263 (14)(a) Sexual activity in any massage establishment is
264 prohibited. An establishment owner or employee may not engage in
265 or allow any person to engage in sexual activity in the massage
266 establishment or use the establishment to make arrangements to
267 engage in sexual activity in another location. Prophylactic
268 devices are prohibited in a massage establishment.
269 (b) If there is an outside window or windows into the
270 massage establishment’s reception area, the outside window or
271 windows must allow for at least 35 percent light penetration,
272 and no more than 50 percent of the outside window or windows may
273 be obstructed with signage, blinds, curtains, or other
274 obstructions, thus allowing the public to see the massage
275 establishment’s reception area. A sign must be posted on the
276 front window of the massage establishment and include the name
277 of the massage establishment, its license number, and the
278 telephone number that has been provided to the department as
279 part of the licensing of the massage establishment. This
280 paragraph does not apply to a massage establishment within a
281 public lodging establishment as defined in s. 509.013(4). This
282 paragraph does not apply to a massage establishment located
283 within a county or municipality that has an ordinance that
284 prescribes requirements related to business window light
285 penetration or signage limitations if compliance with this
286 paragraph would result in noncompliance with such ordinance.
287 (c) All employees within the massage establishment must be
288 fully clothed and such clothing must be fully opaque and made of
289 nontransparent material that does not expose the employee’s
290 genitalia, undergarments, or lingerie.
291 (d) A massage establishment must maintain a complete set of
292 legible records in English or Spanish, which must include each
293 employee’s start date of employment, full legal name, date of
294 birth, home address, telephone number, and employment position
295 and a copy of the employee’s government identification required
296 under s. 480.0535. All information required under this paragraph
297 must be recorded before the employee may provide any service or
298 treatment to a customer or patient.
299 (e) A massage establishment must conspicuously display a 2
300 inch by 2-inch photo for each employee, which, for massage
301 therapists, must be attached to the massage therapist’s license.
302 Such display must also include the employee’s full legal name
303 and employment position. All information required under this
304 paragraph must be displayed before the employee may provide any
305 service or treatment to a customer or patient. A massage
306 establishment within a public lodging establishment as defined
307 in s. 509.013(4) may satisfy this requirement by displaying the
308 photos and required information in an employee break room or
309 other room that is used by employees but is not used by
310 customers or patients.
311 (f) A massage establishment must maintain a complete set of
312 legible records in English or Spanish, which must include the
313 date, time, and type of service or treatment provided; the full
314 legal name of the employee who provided the service or
315 treatment; and the full legal name, home address, and telephone
316 number of the customer or patient. Medical records may satisfy
317 this requirement if the records include the specified
318 information. A copy of the customer’s or patient’s photo
319 identification may be used to provide the full legal name and
320 home address of the customer or patient. Records required under
321 this paragraph must be maintained for at least 1 year after the
322 provision of the service or treatment. All information required
323 under this paragraph must be collected and recorded before the
324 provision of any service or treatment to a customer or patient.
325 The massage establishment must confirm the identification of the
326 customer or patient before the provision of any service or
327 treatment to the customer or patient.
328 (15)(14) Except for the requirements of subsection (13),
329 this section does not apply to a practitioner physician licensed
330 under chapter 457 or a physician licensed under, chapter 458,
331 chapter 459, or chapter 460 who employs a licensed massage
332 therapist to perform massage therapy on the practitioner’s or
333 physician’s patients at his or her the physician’s place of
334 practice. This subsection does not restrict investigations by
335 the department for violations of chapter 456 or this chapter.
336 Section 6. Section 480.0465, Florida Statutes, is amended
337 to read:
338 480.0465 Advertisement; prohibitions.—
339 (1) Each massage therapist or massage establishment
340 licensed under this act shall include the number of the license
341 in any advertisement of massage therapy services appearing in
342 any advertising medium, including a newspaper, airwave
343 transmission, telephone directory, Internet, or other
344 advertising medium. Pending licensure of a new massage
345 establishment under s. 480.043(7), the license number of a
346 licensed massage therapist who is an owner or principal officer
347 of the establishment may be used in lieu of the license number
348 for the establishment. The advertisement must also include the
349 physical address of the massage establishment and the telephone
350 number that has been provided to the department as part of the
351 licensing of the massage establishment. However, the inclusion
352 of the physical address and telephone number is not required for
353 an advertisement by a massage establishment whose establishment
354 owner operates more than five locations in this state.
355 (2) An establishment owner or employee may not place,
356 publish, or distribute, or cause to be placed, published, or
357 distributed, any advertisement in any advertising medium which
358 states prostitution services, escort services, or sexual
359 services are available.
360 (3) A massage therapist or a massage establishment or its
361 employees may not place, publish, or distribute, or cause to be
362 placed, published, or distributed, any online advertisement on
363 any website known for advertising prostitution services, escort
364 services, or sexual services.
365 Section 7. Section 480.0475, Florida Statutes, is amended
366 to read:
367 480.0475 Massage establishments; prohibited practices;
368 penalties.—
369 (1) A massage establishment may only be operated person may
370 not operate a massage establishment between the hours of 5 a.m.
371 and midnight and all customer and patient services and treatment
372 must be performed between the hours of 5 a.m. and 10 p.m. This
373 subsection does not apply to a massage establishment:
374 (a) Located on the premises of a health care facility as
375 defined in s. 408.07; a health care clinic as defined in s.
376 400.9905(4); a hotel, motel, or bed and breakfast inn, as those
377 terms are defined in s. 509.242; a timeshare property as defined
378 in s. 721.05; a public airport as defined in s. 330.27; or a
379 pari-mutuel facility as defined in s. 550.002;
380 (b) In which every massage performed between the hours of
381 10 p.m. midnight and 5 a.m. is performed by a massage therapist
382 acting under the prescription of a physician or physician
383 assistant licensed under chapter 458, an osteopathic physician
384 or physician assistant licensed under chapter 459, a
385 chiropractic physician licensed under chapter 460, a podiatric
386 physician licensed under chapter 461, an advanced practice
387 registered nurse licensed under part I of chapter 464, or a
388 dentist licensed under chapter 466; or
389 (c) Operating during a special event if the county or
390 municipality in which the establishment operates has approved
391 such operation during the special event.
392 (2) A person operating a massage establishment may not use
393 or permit the establishment to be used as a principal domicile
394 for, to shelter or harbor, or as sleeping quarters for any
395 person unless the establishment is zoned for residential use
396 under a local ordinance.
397 (3) A person violating the provisions of this section
398 commits a misdemeanor of the first degree, punishable as
399 provided in s. 775.082 or s. 775.083. A second or subsequent
400 violation of this section is a felony of the third degree,
401 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
402 Section 8. Section 480.0485, Florida Statutes, is amended
403 to read:
404 480.0485 Sexual misconduct in the practice of massage
405 therapy.—The massage therapist-patient relationship is founded
406 on mutual trust. Sexual misconduct in the practice of massage
407 therapy means violation of the massage therapist-patient
408 relationship through which the massage therapist uses that
409 relationship to induce or attempt to induce the patient to
410 engage, or to engage or attempt to engage the patient, in sexual
411 activity outside the scope of practice or the scope of generally
412 accepted examination or treatment of the patient. Sexual
413 misconduct in the practice of massage therapy includes requiring
414 patient nudity as part of any massage service or any other
415 service in the massage establishment or the intentional removal
416 of any drape without the written specific informed consent of
417 the patient. Sexual misconduct in the practice of massage
418 therapy is prohibited.
419 Section 9. Section 480.0535, Florida Statutes, is amended
420 to read:
421 480.0535 Documents required while working in a massage
422 establishment; penalties; reporting requirement.—
423 (1) In order to provide the department and law enforcement
424 agencies the means to more effectively identify, investigate,
425 and arrest persons engaging in human trafficking, an employee a
426 person employed by a massage establishment and any person
427 performing massage therapy in a massage establishment therein
428 must immediately present, upon the request of an investigator of
429 the department or a law enforcement officer, valid government
430 identification while in the establishment. An investigator of
431 the department must request valid government identification from
432 all employees while in the establishment. A valid government
433 identification for the purposes of this section is:
434 (a) A valid, unexpired driver license issued by any state,
435 territory, or district of the United States;
436 (b) A valid, unexpired identification card issued by any
437 state, territory, or district of the United States;
438 (c) A valid, unexpired United States passport;
439 (d) A naturalization certificate issued by the United
440 States Department of Homeland Security;
441 (e) A valid, unexpired alien registration receipt card
442 (green card); or
443 (f) A valid, unexpired employment authorization card issued
444 by the United States Department of Homeland Security.
445 (2) A person operating a massage establishment must:
446 (a) Immediately present, upon the request of an
447 investigator of the department or a law enforcement officer:
448 1. Valid government identification while in the
449 establishment.
450 2. A copy of the documentation specified in paragraph
451 (1)(a) for each employee and any person performing massage
452 therapy in the establishment.
453 3. A copy of the documents required under s. 480.043(14)(d)
454 and (f).
455 (b) Ensure that each employee and any person performing
456 massage therapy in the massage establishment is able to
457 immediately present, upon the request of an investigator of the
458 department or a law enforcement officer, valid government
459 identification while in the establishment.
460 (3) A person who violates any provision of this section
461 commits:
462 (a) For a first violation, a misdemeanor of the second
463 degree, punishable as provided in s. 775.082 or s. 775.083.
464 (b) For a second violation, a misdemeanor of the first
465 degree, punishable as provided in s. 775.082 or s. 775.083.
466 (c) For a third or subsequent violation, a felony of the
467 third degree, punishable as provided in s. 775.082, s. 775.083,
468 or s. 775.084.
469 (4) The department shall notify a federal immigration
470 office if a person operating a massage establishment, an
471 employee, or any person performing massage therapy in a massage
472 establishment fails to provide a valid government identification
473 as required under this section.
474 Section 10. Paragraph (d) of subsection (2) of section
475 847.001, Florida Statutes, is amended to read:
476 847.001 Definitions.—As used in this chapter, the term:
477 (2) “Adult entertainment establishment” means the following
478 terms as defined:
479 (d) “Unlicensed massage establishment” means any business
480 or enterprise that offers, sells, or provides, or that holds
481 itself out as offering, selling, or providing, massages that
482 include bathing, physical massage, rubbing, kneading, anointing,
483 stroking, manipulating, or other tactile stimulation of the
484 human body by either male or female employees or attendants,
485 including employees or attendants who are massage therapists
486 licensed under s. 480.041, by hand or by any electrical or
487 mechanical device, on or off the premises. The term “unlicensed
488 massage establishment” does not include an establishment
489 licensed under s. 480.043 which routinely provides medical
490 services by state-licensed health care practitioners and massage
491 therapists licensed under s. 480.041.
492 Section 11. For the 2023-2024 fiscal year, the sums of
493 $837,991 in recurring funds and $38,712 in nonrecurring funds
494 from the Department of Health Medical Quality Assurance Trust
495 Fund are appropriated to the Division of Medical Quality
496 Assurance of the Department of Health, and eight full-time
497 equivalent positions with associated salary rate of 544,600 are
498 authorized, for the purpose of implementing this act.
499 Section 12. This act shall take effect July 1, 2023.