Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                  Enrolled Committee Substitute for Senate Bill 786
                By Senator Rucker [Passed March 7, 2024; in effect 90 days from passage]
     Enr CS for SB 786
  AN ACT to amend and reenact §30-37-13 of the Code of West Virginia, 1931, as amended; and to
         amend said code by adding thereto a new section, designated §30-37-14, all relating to
         changing the date that massage therapy establishments are required to be licensed;
         setting a maximum license fee; authorizing the executive director of the board to issue an
         emergency order suspending the operations of a massage therapy establishment under
         certain conditions; establishing reasonable cause for inspection; setting forth requirements
         for emergency orders; requiring issuance of a complaint describing required compliance
         measures; setting forth prohibitions regarding massage establishments under an
         emergency order; providing penalties for certain violations; and providing for appeals.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 37. MASSAGE THERAPISTS.
     §30-37-13. Massage establishment license required; exemptions; renewals; suspension and revocation;          and emergency rule-making authority.
         (a) A place of business that is not a sole practitioner, that advertises or offers massage
  therapy or other massage services must be licensed by the board as a massage establishment as
  provided by §30-37-1 et seq. of this code.
         (b) A massage establishment shall employ or contract only with massage therapists
  licensed in this state to perform massage therapy or other massage services. Documentation of
  the employment or contract relationship and verification that the licensed massage therapist is a
  United States citizen or a legal permanent resident with a valid work permit shall be maintained by
  the massage establishment and shall be made available during any inspection or investigation.
  Required documentation for each person providing massage therapy or other massage services
 shall include:
        (1) A copy of the current active West Virginia massage therapist license;
        (2) Proof of eligibility to work in the United States; and
        (3) If an employee, a completed I-9 form, or if under an independent contractor or contract
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     Enr CS for SB 786
 labor agreement, a copy of the contract signed by both the owner or operator of the establishment
 and the licensed massage therapist.
          (c) An adult oriented business may not obtain a license from the board or operate as a
 massage establishment.
          (d) Each applicant for a massage establishment shall:
          (1) Submit a completed application on a board approved form; and
          (2) Pay the appropriate fee as prescribed by the board by legislative rule.
          (e) Exemptions:
          (1) A place of business is not required to hold a massage establishment license under this
 article if:
          (A) The place of business is owned by the federal government, the state, or a political
 subdivision of the state, or otherwise offers massage services as authorized under any other state
 issued professional or occupational license; or
          (B) At the place of business, a licensed massage therapist practices as a sole practitioner;
          (2) The sole practitioner does not use a business name or assumed name; or
          (3) Uses a business name or an assumed name and provides the massage therapist’s full
 legal name or license number in each advertisement and each time the business name or
 assumed name appears in writing.
          (f) A massage establishment license shall be renewed biennially on a form prescribed by
 the board, with the appropriate fee.
          (g) Massage establishment requirements:
          (1) A massage establishment shall post, in a prominent location, the board administered
 establishment license, the state license of each licensed massage therapist employed by the
 establishment, and any business licenses required by any state, municipality or local
 governmental entity;
          (2) Properly maintain and secure for each client the initial consultation documents, all
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     Enr CS for SB 786
 session notes, written consent documents, and related billing records; and
        (3) Maintain a current list of all establishment employees and/or contractors on the
 premises at all times which includes:
        (A) The full name; and
        (B) License number and expiration date of the licensed as a massage therapist.
        (h) A massage establishment may not:
        (1) Employ or contract with an individual to perform massage services who is not a
 licensed massage therapist in this state and who is not a United States citizen or a legal resident
 with a valid work permit;
        (2) Allow a nude or partially nude employee to provide massage therapy or other massage
 services to a customer;
        (3) Allow any individual, including a client, license holder, or employee, to engage in sexual
 contact in the massage establishment;
        (4) Allow any individual, including a license holder, employee, or contract employee, to
 practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire
 of any individual; or
        (5) Allow any individual, including a license holder, employee, or contract employee to
 reside on the premises of the massage establishment.
        (i) A licensee of a massage establishment may be disciplined, including the suspension or
 revocation of the license for cause:
        (1) Pursuant to the general provisions of §30-1-1 et seq. and §30-37-1 et seq. of this code;
        (2) For violating any provision of this article;
        (3) For violating any applicable state law, rule, or policy; and
        (4) For violating any applicable local ordinance.
        (j) A license to operate a massage establishment shall be required, starting on July 1,
 2025, upon the enactment of this section by the regular session of the Legislature, 2024.
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     Enr CS for SB 786
        (k) All establishment license holders who are not licensed massage therapists, shall,
 beginning July 1, 2025, obtain two hours of continuing education on the laws and rules of massage
 therapy every two years and shall provide the certificate of completion to the board by October 1,
 2025, and with the application for biennial renewal of the establishment license.
        (l) The board shall propose emergency legislative rules pursuant to §29A-3-1 et seq. of this
 code to establish reasonable fees for the licensure of massage establishments, including the fee
 for the establishment license and any establishment inspection fees as determined necessary by
 the board. The fee for a biennial establishment license may not exceed $100.
     §30-37-14. Emergency orders for establishment violations; penalty for continued violation.
         (a) The executive director of the board may issue an emergency order suspending the
  operation of a massage establishment if:
         (1) A law-enforcement agency provides notice to the board, that the law-enforcement
  agency is investigating the massage establishment for an offense pursuant to §61-8-1 et seq.,
  §61-14-1 et seq., or §30-37-1 et seq. of this code, and rules promulgated thereunder; or
         (2) The board has reasonable cause to believe that an offense pursuant to §30-37-1 et
  seq. of this code, or the rules promulgated thereunder is being committed at the massage
  establishment, and upon inspection by the board, one or more violations of §30-37-1 et seq. of this
  code or rules promulgated thereunder are observed; or
        (3) Upon inspection of a massage establishment, one or more violations of §30-37-1 et
 seq. of this code or rules promulgated thereunder are observed.
        (b) After an inspection where violations were observed, the executive director of the board
 shall issue an emergency order. If the board believes the massage establishment may be in
 violation of a local, municipal, or other applicable law, the board shall notify law enforcement of the
 possible violations.
        (c) An emergency order shall identify the massage establishment by its business name,
 state that the massage establishment is closed by order of the WV Massage Therapy Licensing
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     Enr CS for SB 786
 Board pursuant to §30-37-1 et seq. of this code, and rules promulgated thereunder. The massage
 establishment shall remain closed to the public until the it is in compliance with the provisions of
 §30-37-1 et seq. of this code and rules promulgated thereunder. The board shall provide the
 massage establishment with a written summary of the findings of the inspection resulting in the
 emergency order, describing what compliance measures are necessary. Within three business
 days the board shall provide to the massage establishment a written complaint resulting in the
 emergency order suspending the operation of the massage establishment, which describes the
 compliance measures which must be taken for the emergency order to be rescinded.
         (d) The emergency order shall be noticed by being printed on 8 1/2" x 11" paper and taped
 to the front door of the massage establishment where it is clearly visible to the public.
         (e) A massage establishment may not remove the emergency order notice suspending its
 operations or open for business until it is in compliance with §30-37-1 et seq. of this code, and
 rules promulgated thereunder as verified by a board inspection.
         (f) A massage establishment that opens its business to the public while subjected to an
 emergency order suspending its operations, shall be fined $1,000 per day, for each day of the
 violation.
         (g) If the board has to take legal action against a massage establishment for continued
 violations of §30-37-1 et seq. of this code, and rules promulgated thereunder, the court may triple
 the applicable fines and order the massage establishment to reimburse the board for all legal fees,
 and all administrative costs.
         (h) A massage establishment may appeal the action of the executive director of the board
 to the board pursuant to the provisions of §30-1-8 of this code.
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Statutes affected: 
Introduced Version: 30-37-13, 30-37-14
Committee Substitute: 30-37-13, 30-7-14
Enrolled Committee Substitute: 30-37-13, 30-7-14