Statutory Authority: §480.043 Massage establishments; requisites; licensure; inspection; human trafficking awareness training and policies, .0475 Massage establishments; prohibited practices , .052 Power of county or municipality to regulate massage. & .0535 Documents required while working in a massage establishment
480.043 Massage establishments; requisites; licensure; inspection.
(1) No massage establishment shall be allowed to operate without a license granted by the department in accordance with rules adopted by the board.
(2) A person who has an ownership interest in an establishment shall submit to the background screening requirements under s. 456.0135. However, if a corporation submits proof of having more than $250,000 of business assets in this state, the department shall require the owner, officer, or individual directly involved in the management of the establishment to submit to the background screening requirements of s. 456.0135. The department may adopt rules regarding the type of proof that may be submitted by a corporation.
(3) The board shall adopt rules governing the operation of establishments and their facilities, personnel, safety and sanitary requirements, financial responsibility, insurance coverage, and the license application and granting process.
(4) Any person, firm, or corporation desiring to operate a massage establishment in the state shall submit to the department an application, upon forms provided by the department, accompanied by any information requested by the department and an application fee.
(5) Upon receiving the application, the department may cause an investigation to be made of the proposed massage establishment.
(6) If, based upon the application and any necessary investigation, the department determines that the proposed establishment would fail to meet the standards adopted by the board under subsection (3), the department shall deny the application for license. Such denial shall be in writing and shall list the reasons for denial. Upon correction of any deficiencies, an applicant previously denied permission to operate a massage establishment may reapply for licensure.
(7) If, based upon the application and any necessary investigation, the department determines that the proposed massage establishment may reasonably be expected to meet the standards adopted by the department under subsection (3), the department shall grant the license under such restrictions as it shall deem proper as soon as the original licensing fee is paid.
(8) The department shall deny an application for a new or renewal license if a person with an ownership interest in the establishment or, for a corporation that has more than $250,000 of business assets in this state, the owner, officer, or individual directly involved in the management of the establishment has been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, regardless of adjudication, a violation of s. 796.07(2)(a) which is reclassified under s. 796.07(7) or a felony offense under any of the following provisions of state law or a similar provision in another jurisdiction:
(a) Section 787.01, relating to kidnapping.
(b) Section 787.02, relating to false imprisonment.
(c) Section 787.025, relating to luring or enticing a child.
(d) Section 787.06, relating to human trafficking.
(e) Section 787.07, relating to human smuggling.
(f) Section 794.011, relating to sexual battery.
(g) Section 794.08, relating to female genital mutilation.
(h) Former s.1 796.03, relating to procuring a person under the age of 18 for prostitution.
(i) Former s. 1 796.035, relating to selling or buying of minors into prostitution.
(j) Section 796.04, relating to forcing, compelling, or coercing another to become a prostitute.
(k) Section 796.05, relating to deriving support from the proceeds of prostitution.
(l) Section 796.07(4)(a)3., relating to a felony of the third degree for a third or subsequent violation of s. 796.07, relating to prohibiting prostitution and related acts.
(m) Section 800.04, relating to lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.
(n) Section 825.1025(2)(b), relating to lewd or lascivious offenses committed upon or in the presence of an elderly or disabled person.
(o) Section 827.071, relating to sexual performance by a child.
(p) Section 847.0133, relating to the protection of minors.
(q) Section 847.0135, relating to computer pornography.
(r) Section 847.0138, relating to the transmission of material harmful to minors to a minor by electronic device or equipment.
(s) Section 847.0145, relating to the selling or buying of minors.
(9)(a) Once issued, no license for operation of a massage establishment may be transferred from one owner to another.
(b) A license may be transferred from one location to another only after inspection and approval by the board and receipt of an application and inspection fee set by rule of the board, not to exceed $125.
(c) A license may be transferred from one business name to another after approval by the board and receipt of an application fee set by rule of the board, not to exceed $25.
(10) Renewal of license registration for massage establishments shall be accomplished pursuant to rules adopted by the board. The board is further authorized to adopt rules governing delinquent renewal of licenses and may impose penalty fees for delinquent renewal.
(11) The board is authorized to adopt rules governing the periodic inspection of massage establishments licensed under this act.
(12) A person with an ownership interest in or, for a corporation that has more than $250,000 of business assets in this state, the owner, officer, or individual directly involved in the management of an establishment that was issued a license before July 1, 2014, shall submit to the background screening requirements of s. 456.0135 before January 31, 2015.
(13) This section does not apply to a physician licensed under chapter 458, chapter 459, or chapter 460 who employs a licensed massage therapist to perform massage on the physician’s patients at the physician’s place of practice. This subsection does not restrict investigations by the department for violations of chapter 456 or this chapter.
History.—s. 12, ch. 78-436; ss. 13, 15, 25, 30, 34, 54, 62, ch. 80-406; s. 2, ch. 81-318; ss. 6, 12, 13, ch. 85-280; s. 4, ch. 91-429; s. 156, ch. 97-264; s. 4, ch. 2014-139; s. 60, ch. 2015-2; s. 64, ch. 2016-10.
1Note.—Repealed by s. 10, ch. 2014-160.
480.0475 Massage establishments; prohibited practices.
(1) A person may not operate a massage establishment between the hours of midnight and 5 a.m. This subsection does not apply to a massage establishment:
(a) Located on the premises of a health care facility as defined in s. 408.07; a health care clinic as defined in s. 400.9905(4); a hotel, motel, or bed and breakfast inn, as those terms are defined in s. 509.242; a timeshare property as defined in s. 721.05; a public airport as defined in s. 330.27; or a pari-mutuel facility as defined in s. 550.002;
(b) In which every massage performed between the hours of midnight and 5 a.m. is performed by a massage therapist acting under the prescription of a physician or physician assistant licensed under chapter 458, an osteopathic physician or physician assistant licensed under chapter 459, a chiropractic physician licensed under chapter 460, a podiatric physician licensed under chapter 461, an advanced registered nurse practitioner licensed under part I of chapter 464, or a dentist licensed under chapter 466; or
(c) Operating during a special event if the county or municipality in which the establishment operates has approved such operation during the special event.
(2) A person operating a massage establishment may not use or permit the establishment to be used as a principal domicile unless the establishment is zoned for residential use under a local ordinance.
(3) A person violating the provisions of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A second or subsequent violation of this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 4, ch. 2013-212.
480.052 Power of county or municipality to regulate massage.
A county or municipality, within its jurisdiction, may regulate persons and establishments licensed under this chapter. Such regulation shall not exceed the powers of the state under this act or be inconsistent with this act. This section shall not be construed to prohibit a county or municipality from enacting any regulation of persons or establishments not licensed pursuant to this act.
History.—s. 20, ch. 78-436; ss. 13, 15, 25, 30, 34, 56, 62, ch. 80-406; s. 2, ch. 81-318; ss. 12, 13, ch. 85-280; s. 4, ch. 91-429.
480.0535 Documents required while working in a massage establishment.
(1) In order to provide the department and law enforcement agencies the means to more effectively identify, investigate, and arrest persons engaging in human trafficking, a person employed by a massage establishment and any person performing massage therein must immediately present, upon the request of an investigator of the department or a law enforcement officer, valid government identification while in the establishment. A valid government identification for the purposes of this section is:
(a) A valid, unexpired driver license issued by any state, territory, or district of the United States;
(b) A valid, unexpired identification card issued by any state, territory, or district of the United States;
(c) A valid, unexpired United States passport;
(d) A naturalization certificate issued by the United States Department of Homeland Security;
(e) A valid, unexpired alien registration receipt card (green card); or
(f) A valid, unexpired employment authorization card issued by the United States Department of Homeland Security.
(2) A person operating a massage establishment must:
(a) Immediately present, upon the request of an investigator of the department or a law enforcement officer:
1. Valid government identification while in the establishment.
2. A copy of the documentation specified in paragraph (1)(a) for each employee and any person performing massage in the establishment.
(b) Ensure that each employee and any person performing massage in the massage establishment is able to immediately present, upon the request of an investigator of the department or a law enforcement officer, valid government identification while in the establishment.
(3) A person who violates any provision of this section commits:
(a) For a first violation, a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) For a second violation, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) For a third or subsequent violation, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [History.—s. 2, ch. 2012-97.]
Administrative Regulations: 64B7-26
(1) The term “owner” means the sole proprietor, partnership, limited partnership or corporation that operates the massage establishment.
(2) The term “business name” means the name under which the owner applies for the establishment license to provide massage therapy, if different from the name of the owner.
Rulemaking Authority 480.035(7) FS. Law Implemented 480.043(7) FS. History–New 7-16-98, Amended 8-5-03, 2-26-12.
64B7-26.002 Licensure of Massage Establishments.
(1) Each establishment, shall obtain a license from the Department as required by Section 480.043(1), F.S., by submitting a completed form DH-MQA 1263, “Massage Establishment Licensure Application” (Rev. 11/15), incorporated herein by reference, together with the fee set forth in subsection 64B7-27.100(2), F.A.C. The form and the attached instructions may be obtained from the Board office at 4052 Bald Cypress Way, Bin C-06, Tallahassee, Florida 32399 or from the website located at http://floridasmassagetherapy.gov/applications/app-bus-original-mt.pdf or http://www.flrules.org/Gateway/reference.asp?No=Ref- .
(2) The application for licensure shall be submitted in the name of the owner or owners of the establishment. If the owner is a partnership, limited partnership or corporation, the application shall be submitted in the name of the business entity and shall be signed by an authorized representative.
(3) An owner operating an establishment under a fictitious name as defined in s. 865.09, F.S., must provide such name to the Board on the application for licensure. Any advertisement by the establishment of massage therapy must include the fictitious name, and must comply with Rule 64B7-33.001, F.A.C.
(4) The applicant shall submit proof confirming property damage and bodily injury liability insurance coverage for the proposed establishment. If the establishment is operated under a business name, the proof of insurance shall include both the name of the owner and the business name.
Rulemaking Authority 480.035(7), 480.043(2) FS. Law Implemented 480.043, 456.0635 FS. History–New 11-27-79, Formerly 21L-26.02, Amended 1-7-86, Formerly 21L-26.002, Amended 3-9-95, 9-25-95, Formerly 61G11-26.002, Amended 7-16-98, 1-26-00, 4-2-09, 10-7-14, 3-14-16.
64B7-26.003 Massage Establishment Operations.
(1) Facilities, Each establishment shall meet the following facility requirements:
(a) Comply with all local building code requirements.
(b) Provide for the use of clients a bathroom with at least one toilet and one sink with running water. Such facilities shall be equipped with toilet tissue, soap dispenser with soap or other hand cleaning materials, sanitary towels or other hand-drying device such as a wall-mounted electric blow dryer, and waste receptacle.
(c) Maintain toilet facilities in a common area of the establishment. Establishments located in buildings housing multiple businesses under one roof such as arcades, shopping malls, terminals, hotels, etc., may substitute centralized toilet facilities. Such central facilities shall be within three hundred (300) feet of the massage establishment.
(d) If equipped with a whirlpool bath, sauna, steam cabinet and/or steam room, maintain clean shower facilities on the premises.
(2) Personnel. A licensed massage therapist must be on the premises of the establishment if a client is in a treatment room for the purpose of receiving massage therapy.
(3) Safety and sanitary requirements. Each establishment shall:
(a) Provide for safe and unobstructed human passage in the public areas of the premises; provide for removal of garbage and refuse; and provide for safe storage or removal of flammable materials.
(b) Maintain a fire extinguisher in good working condition on the premises. As used herein “good working condition” means meeting the standards for approval by the State Fire Marshal. Such standards are presently contained in Chapter 69A-21, F.A.C.
(c) Exterminate all vermin, insects, termites, and rodents on the premises.
(d) Maintain all equipment used to perform massage services on the premises in a safe and sanitary condition, including the regular application of cleansers and bactericidal agents to the massage table. Unless clean sheets, towels, or other coverings are used to cover the massage table for each client, “regular application,” as used herein, means after the massage of each client. If clean coverings are used for each client, then “regular application” shall mean at least one time a day and also whenever oils or other substances visibly accumulate on the massage table surface.
(e) Maintain a sufficient supply of clean drapes for the purpose of draping each client while the client is being massaged, and launder before reuse all materials furnished for the personal use of the client, such as drapes, towels and linens. As used herein “drapes” means towels, gowns, or sheets.
(f) Maintain lavatories for hand cleansing and/or a chemical germicidal designed to disinfect and cleanse hands without the use of a lavatory in the treatment room itself or within 20 feet of the treatment area.
(g) Maintain all bathroom and shower facilities and fixtures in good repair, well-lighted and ventilated.
(4) Financial responsibility and insurance coverage. Each establishment shall maintain property damage and bodily injury liability insurance coverage. The original or a copy of such policy shall be available on the premises of the establishment.
Rulemaking Authority 480.035(7), 480.043(2) FS. Law Implemented 480.043(2) FS. History–New 11-27-79, Amended 10-13-81, 9-10-84, 9-25-85, Formerly 21L-26.03, Amended 4-30-87, 6-12-89, 8-15-89, 5-31-92, 11-2-92, Formerly 21L-26.003, 61G11-26.003, Amended 2-16-99, 11-4-99, 6-8-00.
64B7-26.004 Inspection Upon Application for License.
Upon receipt of an application for a massage establishment license, employees of the Department shall cause an inspection to be made of the site. Such inspection shall be to confirm that the site is to be utilized for “massage” as defined by Section 480.033(4), F.S., and that the criteria enunciated in Rule 64B7-26.003, F.A.C., are satisfied.
Rulemaking Authority 480.043(1), (2) FS. Law Implemented 480.043(2), (4) FS. History–New 11-27-79, Formerly 21L-26.04, 21L-26.004, Amended 1-9-95, 3-9-95, Formerly 61G11-26.004.
64B7-26.005 Periodic Inspections.
The Department shall make periodic inspections of all massage establishments licensed in this state no less than once each year. Such inspection shall include, but not be limited to, whether the establishment is in compliance with Rule 64B7-26.003, F.A.C., governing the establishment’s operation facilities, personnel, safety, sanitary requirements, and a review of existing insurance coverage.
Rulemaking Authority 480.043(2), (9) FS. Law Implemented 480.043 FS. History–New 11-27-79, Formerly 21L-26.05, Amended 4-30-87, Formerly 21L-26.005, 61G11-26.005, Amended 1-26-00.
64B7-26.007 Transfer of Massage Establishment License.
(1) When there is no change of ownership or location, the owner may change the business name of the establishment. The owner shall apply for a change of business name by submitting a completed Form DH-MQA 1264 “Massage Establishment Change of Location/Name Application” (Rev. 6/14), incorporated herein by reference, accompanied by the application fee provided in paragraph 64B7-27.100(2)(d), F.A.C. The form and the attached instructions may be obtained from the Board Office at 4052 Bald Cypress Way, Bin C-06, Tallahassee, Florida 32399 or from the website located at http://floridasmassagetherapy.gov or http://www.flrules.org/Gateway/reference.asp?No=Ref-04618. When a massage establishment business name is changed, without a change in ownership or location, a new establishment inspection is not required.
(2) When there is no change of ownership, the owner of a massage establishment may transfer the license from one location to another. The owner shall apply for a change of location by submitting a completed Form DH-MQA 1264 “Massage Establishment Change of Location/Name Application” (Rev. 6/14), accompanied by the application fee provided in paragraph 64B7-27.100(2)(e), F.A.C. A massage establishment license may not be transferred from one location to another until after inspection by the department.
Rulemaking Authority 480.035(7), 480.043(2), (9) FS. Law Implemented 480.043(2), (7), (9), 456.0635 FS. History–New 5-17-90, Formerly 21L-26.007, 61G11-26.007, Amended 9-14-98, 10-8-14.
64B7-26.010 Sexual Activity Prohibited.
(1) Sexual activity by any person or persons in any massage establishment is absolutely prohibited.
(2) No massage establishment owner shall engage in or permit any person or persons to engage in sexual activity in such owner’s massage establishment or use such establishment to make arrangements to engage in sexual activity in any other place.
(3) No licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client.
(4) As used in this rule, “sexual activity” means any direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. For purposes of this subsection, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. Nothing herein shall be interpreted to prohibit a licensed massage therapist, duly qualified under Rule 64B7-31.001, F.A.C, from practicing colonic irrigation.
Rulemaking Authority 480.035(7), 480.043(2) FS. Law Implemented 480.043(2), 480.046(1)(h) FS. History–New 5-31-92, Formerly 21L-26.010, 61G11-26.010.