H 4793 Session 110 (1993-1994)
H 4793 General Bill, By Sharpe
A Bill to amend Section 1-30-65, Code of Laws of South Carolina, 1976,
relating to agencies and boards under the Department of Labor, Licensing and
Regulation, so as to add the Board of Massage; and to amend Chapter 30, Title
40, relating to masseurs and masseuses, so as to create the South Carolina
Board of Massage, to provide for its members, powers, and duties, to provide
licensing requirements, to establish fees, and to provide grounds for
disciplinary action and penalties.
02/22/94 House Introduced and read first time HJ-5
02/22/94 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-6
04/19/94 House Committee report: Favorable with amendment
Medical, Military, Public and Municipal Affairs HJ-3
05/04/94 House Debate adjourned until Thursday, July 7, 1994 HJ-26
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 19, 1994
H. 4793
Introduced by REP. Sharpe
S. Printed 4/19/94--H.
Read the first time February 22, 1994.
THE COMMITTEE ON MEDICAL,
MILITARY, PUBLIC AND MUNICIPAL
AFFAIRS
To whom was referred a Bill (H. 4793), to amend Section 1-30-65,
Code of Laws of South Carolina, 1976, relating to agencies and boards
under the Department of Labor, Licensing and Regulation, etc.,
respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting
words and inserting:
/SECTION 1. Section 1-30-65(C) of the 1976 Code, as added by Act
181 of 1993, is amended by adding in the appropriate place
alphabetically:
"Massage Board, provided for at Section 40-30-02 et
seq."
SECTION 2. Chapter 30, Title 40 of the 1976 Code is amended to
read:
"Chapter 30
Massage Practice
Massage Therapists
Section 40-30-10. The General Assembly finds that the provisions
of this chapter are necessary to protect the general health, safety,
welfare, and morals of the citizens of this State.
Section 40-30-20. For purposes of this chapter: (A)
"Masseur" means a male person and "masseuse"
means a female person who apply manual or mechanical massages or
similar treatment to the human trunk or limbs. (B)
"Division" means the South Carolina Law Enforcement
Division.
Section 40-30-30. A masseur or masseuse or any person or party
engaging in any business, trade, profession, occupation, or calling may
do business only between the hours of 10:00 a.m. and 10:00 p.m.,
Monday through Saturday. Any operator of a massage parlor or
establishment, or business above enumerated and not specifically
exempted under the provisions of this chapter, may only operate
between the hours provided in this chapter.
Section 40-30-40. It is unlawful for any masseur or masseuse to treat
a person of the opposite sex, except upon the signed order of a licensed
physician, osteopath, or chiropractor, which order must be dated and
shall specifically state the number of treatments, not to exceed ten. The
date and hour of each treatment given and the name of the operator must
be entered on the order by the establishment where the treatments are
given and is subject to inspection by the division at any reasonable time.
The requirements of this section do not apply to treatments given in the
residence of a patient, the office of a licensed physician, osteopath,
chiropractor, or in a regularly established and licensed hospital or
sanitarium.
Section 40-30-50. (A) It is unlawful for any person under the age of
eighteen to patronize any massage parlor or similar establishment unless
the person carries with him at the time of the patronage a written order
directing the treatment to be given signed by a regularly licensed
physician. (B) It is the duty of the operator of the massage parlor or
similar establishment to determine and have verification of the age of the
person patronizing the establishment.
Section 40-30-60. Any establishment employing a masseur or
masseuse is subject to the following restrictions: (A) Prices charged
for all services rendered must be posted inside the entrance; and (B)
All persons administering massages shall obtain a health certificate from
the county health department prior to working as a massager and shall
obtain a renewal every six months thereafter.
Section 40-30-70. The division is authorized to promulgate such
regulations as it may consider necessary to carry out the purposes of this
chapter and design and distribute such forms as may be required.
Section 40-30-80. The provisions of this chapter do not apply to a
regularly established and licensed hospital, sanitarium, nursing home, or
medical clinic, nor to the office or clinic operated by a duly qualified
and licensed medical practitioner, osteopath, or chiropractor in
connection with his practice of medicine, chiropractic, or osteopathy, or
employees thereof, nor to YMCA's or YWCA's. However, the office or
clinic must be regularly used by the medical practitioner, chiropractor,
or osteopath as his principal location for his practice of medicine,
chiropractic, or osteopathy.
Section 40-30-90. Any person violating the provisions of this chapter
is guilty of a misdemeanor and upon conviction must be fined not more
than one thousand dollars or imprisoned not more than one year, or
both.
Section 40-30-02. This chapter may be cited as the `Massage
Practice Act'.
Section 40-30-05. The Legislature recognizes that the practice of
massage is potentially harmful to the public in that massage therapists
must have a knowledge of anatomy and physiology and an
understanding of the relationship between the structure and the function
of the tissues being treated and the total function of the body. Massage
is therapeutic, and regulations are necessary to protect the public from
unqualified practitioners. It is therefore necessary in the interest of
public health, safety, and welfare to regulate the practice of massage in
this State; however, restrictions must be imposed to the extent necessary
to protect the public from significant and discernible danger to health
and yet not in such a manner which will unreasonably affect the
competitive market. Further, consumer protection for both health and
economic matters must be afforded the public through legal remedies
provided for in this chapter.
Section 40-30-10. As used in this chapter:
(1) `Board' means the Board of Massage.
(2) `Department' means the Department of Labor, Licensing and
Regulation.
(3) `Massage' means the manipulation of the superficial tissues of
the human body with the hand, foot, arm, or elbow, whether or not the
manipulation is aided by hydrotherapy, thermal therapy, an electrical or
mechanical device, or the application to the human body of a chemical
or herbal preparation.
(4) `Massage therapist' means a person licensed as required by this
chapter, who administers massage for compensation.
(5) `Licensure' means the procedure by which a person, referred to
in this chapter as a `practitioner', applies to the board for approval to
practice massage or to operate an establishment.
(6) `Board-approved massage school' means a facility which meets
minimum standards for training and curriculum as determined by
regulation of the board.
Section 40-30-15. (A) Athletic trainers employed by or on
behalf of a professional athletic team performing or training within this
State are exempt from this chapter.
(B) The State and its political subdivisions are exempt from the
registration requirements of this chapter.
(C) Treatments for the purpose of cleansing and beautifying the skin
or in conjunction with a weight loss program, including herbal wraps,
body scrubs, paraffin wax treatments, and seaweed wraps, are exempt
from this chapter.
(D) An exemption granted is effective to the extent that an exempted
person's practice or profession overlaps with the practice of massage.
Section 40-30-20. (A) The Board of Massage is created within
the Department of Labor, Licensing and Regulation. The board consists
of nine members, who must be appointed by the Governor and whose
function it is to carry out the provisions of this chapter.
(B) Six members of the board must be licensed massage therapists
and must have been engaged in the practice of massage for not fewer
than five consecutive years before appointment to the board. One
massage therapist must be appointed by the Governor from each
congressional district and must reside in and practice in the district the
massage therapist represents. Three members of the board must be
appointed by the Governor from the state at large and must be members
of the general public who are not licensed massage therapists nor have
any financial interest, direct or indirect, in the profession of massage
therapy. The Governor shall appoint each member, with the advice and
consent of the Senate, for a term of four years and until their successors
are appointed and qualify. Each board member must be a high school
graduate or shall have received a graduate equivalency diploma. Each
board member must be a citizen of the United States and a resident of
this State for not fewer than five years.
(C) The Governor may at any time fill a vacancy on the board for the
remainder of an unexpired term. No board member may serve more than
two terms, whether full or partial.
(D) In the month of January the board shall elect from its number a
chairman and a vice chairman.
(E) The board shall hold such meetings during the year as it may
determine to be necessary, one of which must be the annual meeting.
The chairman of the board may call other meetings at his discretion. A
quorum of the board consists of not fewer than five members.
(F) Board members shall receive per diem and mileage as provided
by law for members of boards and commissions.
(G) The board shall promulgate regulations as are necessary to
implement this chapter.
Section 40-30-25. Each board member is accountable to the
Governor for the proper performance of all duties and obligations of the
board member's office. The Governor shall cause to be investigated any
complaints or unfavorable reports received concerning the actions of the
board or its individual members and shall take appropriate action, which
may include removal of any board member for malfeasance,
misfeasance, neglect of duty, commission of a felony, incompetency, or
permanent inability to perform official duties.
Section 40-30-30. The department shall provide all investigative
services required in carrying out the provisions of this chapter.
Section 40-30-35. (A) A person is qualified for licensure as a
massage therapist under this chapter who:
(1) is at least eighteen years of age and has received a high school
diploma or graduate equivalency diploma;
(2) has completed a five-hundred hour course of supervised study
at a board-approved massage school which includes a curriculum as
approved by the board; and
(3) has received a passing grade on an examination approved by
the board or administered by the department.
(B) A person desiring to be examined for licensure as a massage
therapist shall apply to the department in writing upon forms prepared
and furnished by the department. The applicants are subject to Section
40-30-65(A). Applicants may take an examination approved by the
board or administered by the department only upon meeting the
requirements of this section as determined by the board.
(C) Upon an applicant's passing the examination and paying the
initial licensure fee, the department shall issue to the applicant a license,
valid until the next scheduled renewal date, to practice massage.
Section 40-30-40. The board shall promulgate regulations
specifying:
(1) standards and procedures for applications, examinations, and
issuance of initial, renewal, and provisional licenses;
(2) licensing procedures for practitioners desiring to be licensed in
this State who hold an active license and have practiced in another state
which has licensing standards substantially similar to, equivalent to, or
more stringent than the standards of this State.
Section 40-30-45. (A) The board shall prescribe by regulation the
method for renewal of biennial licensure which shall include continuing
education requirements not to exceed twelve classroom hours per
biennium. The board shall by regulation establish criteria for the
approval of continuing education programs or courses. The programs
or courses approved by the board may include correspondence courses
which meet the criteria for continuing education courses held in a
classroom setting.
(B) A massage therapist license which is not renewed at the end of
the biennium automatically reverts to an inactive status.
Section 40-30-50. The board shall specify by regulation the general
areas of competency to be covered by examinations for licensure. These
regulations shall include the relative weight assigned in grading each
area, the grading criteria to be used by the examiner, and the score
necessary to achieve a passing grade. The board shall ensure that
examinations adequately measure both an applicant's competency and
an applicant's knowledge of related statutory requirements. Professional
testing services may be utilized to formulate the examinations.
The board shall ensure that examinations comply with state and
federal equal employment opportunity guidelines.
The department, in accordance with regulations promulgated by the
board, shall examine persons who file applications for licensure under
this chapter in all matters pertaining to the practice of massage. A
written and a practical examination must be offered at least once yearly
and at such other times as the department considers necessary.
The board shall adopt regulations providing for reexamination of
applicants who have failed the examination.
All licensing examinations must be conducted in such manner that the
applicant must be known to the department by number until the
examination is completed and the proper grade determined. An accurate
record of each examination must be made; and that record, together with
all examination papers, must be filed with the director of the department
and must be kept for reference and inspection for a period of not fewer
than two years immediately following the examination.
Section 40-30-55. (A) A license which has become inactive may
be reactivated pursuant to Section 40-30-35 upon application to the
department. The board may prescribe by regulation continuing education
requirements as a condition of reactivating a license. The continuing
education requirements for reactivating a license may not exceed twelve
classroom hours for each year the license was inactive. The board shall
by regulation establish criteria for the approval of continuing education
programs or courses. The programs or courses approved by the board
may include correspondence courses which meet the criteria for
continuing education courses held in a classroom setting. A license
which has been inactive for more than four years automatically expires
if the licensee has not made application for renewal of the license. Once
a license expires, it becomes null and void without any further action by
the board or department. One year before expiration of the license, the
department shall give notice to the licensee.
(B) The board shall promulgate regulations relating to licenses which
have become inactive and for the renewal of inactive licenses. The
board shall prescribe by regulation a fee not to exceed fifty dollars for
the reactivation of an inactive license and a fee not to exceed fifty for the
renewal of an inactive license.
Section 40-30-60. (A) The board shall promulgate a fee schedule
for the purpose of carrying out the provisions of this chapter.
(B) The board may establish by regulation an application fee not to
exceed $100 for anyone seeking approval to provide continuing
education courses and may provide by regulation for a fee not to exceed
fifty dollars for renewal of providership.
(C) The department is authorized to charge the cost of an original
license or permit, as set forth in this chapter, for the issuance of a
duplicate license or permit requested by a massage therapist.
(D) All fees collected by the department authorized by this chapter
must be remitted to the state treasurer and deposited in the General Fund
of the State.
Section 40-30-65. (A) The following constitute grounds for which
disciplinary actions specified in subsection (B) may be taken against a
massage therapist licensed under this chapter:
(1) attempting to procure a license to practice massage by bribery
or fraudulent misrepresentation;
(2) having a license to practice massage revoked, suspended, or
otherwise acted against, including the denial of licensure, by the
licensing authority of another state, territory, or country;
(3) being convicted or found guilty, regardless of adjudication, of
a crime in any jurisdiction which directly relates to the practice of
massage or to the ability to practice massage. Any plea of nolo
contendere is considered a conviction for purposes of this chapter;
(4) false, deceptive, or misleading advertising;
(5) aiding, assisting, procuring, or advising an unlicensed person
to practice massage contrary to this chapter or to a regulation of the
department or the board;
(6) making deceptive, untrue, or fraudulent representations in the
practice of massage;
(7) being unable to practice massage with reasonable skill and
safety by reason of illness or use of alcohol, drugs, narcotics, chemicals,
or any other type of material or as a result of any mental or physical
condition. In enforcing this paragraph, the department, upon probable
cause, may compel a massage therapist to submit to a mental or physical
examination by physicians designated by the department. Failure of a
massage therapist to submit to an examination when so directed, unless
the failure was due to circumstances beyond the massage therapist's
control, constitutes an admission of the allegations against the massage
therapist, consequent upon which a default and final order may be
entered without the taking of testimony or presentation of evidence. A
massage therapist affected under this item at reasonable intervals must
be afforded an opportunity to demonstrate the ability to resume the
competent practice of massage with reasonable skill and safety to
clients;
(8) gross or repeated malpractice or the failure to practice
massage with that level of care, skill, and treatment which is recognized
by a reasonably prudent massage therapist as being acceptable under
similar conditions and circumstances;
(9) practicing or offering to practice beyond the scope permitted
by law or accepting and performing professional responsibilities which
the licensee knows or has reason to know that he is not competent to
perform;
(10) delegating professional responsibilities to a person when the
licensee delegating the responsibilities knows or has reason to know that
the person is not qualified by training, experience, or licensure to
perform;
(11) violating a provision of this chapter, a regulation of the board
or department, or a lawful order of the board or department previously
entered in a disciplinary hearing or failing to comply with a lawfully
issued subpoena of the department.
(B) When the board finds a person guilty of any of the grounds set
forth in subsection (A), it may enter an order imposing one or more of
the following penalties:
(1) refusal to license an applicant;
(2) revocation or suspension of a license;
(3) issuance of a reprimand or censure;
(4) imposition of an administrative fine not to exceed one
thousand dollars for each count or separate offense.
(C) Disciplinary proceedings must be conducted pursuant to
proceedings for a contested case under the Administrative Procedures
Act.
Section 40-30-70. A massage therapist licensed under this chapter
shall include the number of the license in an advertisement of massage
services appearing in a newspaper, airwave transmission, telephone
directory, or other advertising medium.
Section 40-30-75. (A) It is unlawful for a person to:
(1) hold himself out as a massage therapist unless licensed under
this chapter;
(2) permit an employed person to practice massage unless
licensed under this chapter;
(3) present as his own the license of another;
(4) allow the use of his license by an unlicensed person;
(5) give false or forged evidence to the department in obtaining
a license under this chapter;
(6) falsely impersonate another licenseholder of like or different
name;
(7) use or attempt to use a license that has been revoked;
(8) otherwise violate a provision of this chapter.
(B) Nothing in this chapter may be construed to prevent the teaching
of massage in this State at a board approved massage school.
(C) A person who violates this section is guilty of a misdemeanor
and, upon conviction, must be fined not more than one thousand dollars
or imprisoned not more than six months or both.
Section 40-35-80. As cumulative to any other remedy or criminal
prosecution, the department may initiate a proceeding in its own name
seeking a restraining order, injunction, or writ of mandamus against a
person who is or has been violating provisions of this chapter or the
lawful regulations or orders of the department. This proceeding must be
commenced and prosecuted before an Administrative Law Judge
pursuant to Article 5, Chapter 23, Title 1.
Section 40-35-85. A county or municipality, within its jurisdiction,
may regulate persons and establishments licensed under this chapter.
The regulation may not exceed the powers of the State under this chapter
or be inconsistent with this chapter. This section may not be construed
to prohibit a county or municipality from enacting any regulation of
persons or establishments not licensed pursuant to this
chapter."
SECTION 3. Notwithstanding any other provision of law, until a fee
schedule is promulgated by the Board of Massage, fees and other
applicable charges for massage therapists are as follows:
(1) massage therapist application and examination fee, not to exceed
two hundred and fifty dollars;
(2) massage therapist initial licensure fee, not to exceed one hundred
and fifty dollars;
(3) biennial massage therapist licensure renewal fee, not to exceed
two hundred dollars;
(4) massage therapist reexamination fee, not to exceed two hundred
and fifty dollars;
(5) application and provisional massage therapist licensure fee, not
to exceed fifty dollars;
(6) application and reactivation for inactive status of a massage
therapist license fee, not to exceed two hundred and fifty dollars;
(7) renewal fee for inactive status, not to exceed two hundred and
fifty dollars.
SECTION 4. Notwithstanding Section 40-30-35 of the 1976 Code,
as added by Section 1 of this act, if an applicant does not meet the
approved educational requirements or has not passed an approved
examination at the time the board is established, then for a period of one
year after the establishment of the Board of Massage, the board may
waive the educational requirements and allow a provisional license to be
issued. The applicant must meet the requirements pursuant to Section
40-30-60. The applicant must be practicing in the State at the time the
application is submitted and documentation of at least five hundred
hours of massage experience within a two-year period before application
is made must be provided to the board in the manner and form as the
board may require including, but not limited to:
(1) documentation establishing the professional practice of massage
as defined in Section 40-30-10(3) as a primary source of income for two
years preceding the application; and
(2) three letters of reference from sources approved by the board
attesting to the professional qualifications and competence of the
applicant. At the end of one year after the provisional license is issued,
the applicant must successfully pass an examination approved by the
board or administered by the department.
SECTION 5. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend title to conform.
DAVE C. WALDROP, JR., for Committee.
STATEMENT OF ESTIMATED FISCAL
IMPACT
1. Estimated Cost to State-First Year$See Below
2. Estimated Cost to State-Annually
Thereafter$See Below
House Bill 4793 amends Section 1-30-65, South Carolina Code of
Laws, 1976, by adding the "Board of Massage" and
amending Chapter 30, Title 40 creating the "South Carolina Board
of Massage".
Section 40-30-02 cites the Chapter as the "Massage Practice
Act".
Section 40-30-10 provides definitions and Section 40-30-15
exemptions.
Section 40-30-20 creates the "South Carolina Board of
Massage" within the Department of Labor, Licensing, and
Regulation (department). The board would be composed of seven
members, five licensed massage therapists and two lay persons. The
board may hold meetings as may be determined necessary and one
annual meeting. The board members would receive per diem and
mileage as provided by law for members of boards and commissions.
In Section 40-30-30, the department would provide all investigative
services.
Section 40-30-50 specifies that the board would prescribe by
regulation the method for renewal of biennial licensure.
Section 40-30-55 makes provisions for the examinations to be given
at least once yearly and other times as the department considers
necessary.
Section 40-30-70 sets and directs the fees collected by the department
must be remitted to the State Treasurer and deposited to the General
Fund of the State. As is common in the professional and occupational
licensing agencies, fees collected would offset any funding
appropriations.
The estimated costs for per diem and mileage is as follows:
Average
No. of PerFour
Meetings MeetingMeeting
Per Diem ($35) 7 $ 245$ 980
Mileage (76.50) 7 535 2,140
(300 miles @
25.5 cents/miles)
Lodging (65) 7 455 1,820
TOTAL ESTIMATED COST $1,235$4,940
The department and State Law
Enforcement Division have stated there is no available information as to
the number of masseurs and masseuses in South Carolina.
There is no cost to the General Fund
of the State since fees collected will offset any funding. However,
Section 40-30-70 in this legislation directs the fees collected by the
department to be deposited to the general fund. The professional and
occupational licensing agencies currently within the department are
other funded and they are required to generate revenue equal to 110%
of their expenditures.
Prepared By: Approved By:
Frances H. Barr George N. Dorn, Jr.
State Budget Analyst State Budget Division
A BILL
TO AMEND SECTION 1-30-65, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO AGENCIES AND BOARDS
UNDER THE DEPARTMENT OF LABOR, LICENSING AND
REGULATION, SO AS TO ADD THE BOARD OF MASSAGE; AND
TO AMEND CHAPTER 30, TITLE 40, RELATING TO MASSEURS
AND MASSEUSES, SO AS TO CREATE THE SOUTH CAROLINA
BOARD OF MASSAGE, TO PROVIDE FOR ITS MEMBERS,
POWERS, AND DUTIES, TO PROVIDE LICENSING
REQUIREMENTS, TO ESTABLISH FEES, AND TO PROVIDE
GROUNDS FOR DISCIPLINARY ACTION AND PENALTIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-30-65(C) of the 1976 Code, as added by Act
181 of 1993, is amended by adding in the appropriate place
alphabetically:
"Massage Board, provided for at Section 40-30-02 et
seq."
SECTION 2. Chapter 30, Title 40 of the 1976 Code is amended to
read:
"Chapter 30
Massage Practice
Masseurs and Masseuses
Section 40-30-10. The General Assembly finds that the
provisions of this chapter are necessary to protect the general health,
safety, welfare, and morals of the citizens of this State. Section
40-30-20. For purposes of this chapter: (A) "Masseur"
means a male person and "masseuse" means a female person
who apply manual or mechanical massages or similar treatment to the
human trunk or limbs. (B) "Division" means the South
Carolina Law Enforcement Division.
Section 40-30-30. A masseur or masseuse or any person or party
engaging in any business, trade, profession, occupation, or calling may
do business only between the hours of 10:00 a.m. and 10:00 p.m.,
Monday through Saturday. Any operator of a massage parlor or
establishment, or business above enumerated and not specifically
exempted under the provisions of this chapter, may only operate
between the hours provided in this chapter.
Section 40-30-40. It is unlawful for any masseur or masseuse to
treat a person of the opposite sex, except upon the signed order of a
licensed physician, osteopath, or chiropractor, which order must be
dated and shall specifically state the number of treatments, not to exceed
ten. The date and hour of each treatment given and the name of the
operator must be entered on the order by the establishment where the
treatments are given and is subject to inspection by the division at any
reasonable time. The requirements of this section do not apply to
treatments given in the residence of a patient, the office of a licensed
physician, osteopath, chiropractor, or in a regularly established and
licensed hospital or sanitarium.
Section 40-30-50. (A) It is unlawful for any person under the age
of eighteen to patronize any massage parlor or similar establishment
unless the person carries with him at the time of the patronage a written
order directing the treatment to be given signed by a regularly licensed
physician. (B) It is the duty of the operator of the massage parlor or
similar establishment to determine and have verification of the age of the
person patronizing the establishment.
Section 40-30-60. Any establishment employing a masseur or
masseuse is subject to the following restrictions: (A) Prices charged
for all services rendered must be posted inside the entrance; and (B)
All persons administering massages shall obtain a health certificate from
the county health department prior to working as a massager and shall
obtain a renewal every six months thereafter.
Section 40-30-70. The division is authorized to promulgate such
regulations as it may consider necessary to carry out the purposes of this
chapter and design and distribute such forms as may be required.
Section 40-30-80. The provisions of this chapter do not apply to a
regularly established and licensed hospital, sanitarium, nursing home, or
medical clinic, nor to the office or clinic operated by a duly qualified
and licensed medical practitioner, osteopath, or chiropractor in
connection with his practice of medicine, chiropractic, or osteopathy, or
employees thereof, nor to YMCA's or YWCA's. However, the office or
clinic must be regularly used by the medical practitioner, chiropractor,
or osteopath as his principal location for his practice of medicine,
chiropractic, or osteopathy.
Section 40-30-90. Any person violating the provisions of this chapter
is guilty of a misdemeanor and upon conviction must be fined not more
than one thousand dollars or imprisoned not more than one year, or
both.
Section 40-30-02. This chapter may be cited as the `Massage
Practice Act'.
Section 40-30-05. The Legislature recognizes that the practice of
massage is potentially dangerous to the public in that massage therapists
must have a knowledge of anatomy and physiology and an
understanding of the relationship between the structure and the function
of the tissues being treated and the total function of the body. Massage
is therapeutic, and regulations are necessary to protect the public from
unqualified practitioners. It is therefore necessary in the interest of
public health, safety, and welfare to regulate the practice of massage in
this State; however, restrictions must be imposed to the extent necessary
to protect the public from significant and discernible danger to health
and yet not in such a manner which will unreasonably affect the
competitive market. Further, consumer protection for both health and
economic matters must be afforded the public through legal remedies
provided for in this chapter.
Section 40-30-10. As used in this chapter:
(1) `Board' means the Board of Massage.
(2) `Department' means the Department of Labor, Licensing and
Regulation.
(3) `Massage' means the manipulation of the superficial tissues of
the human body with the hand, foot, arm, or elbow, whether or not the
manipulation is aided by hydrotherapy, including colonic irrigation, or
thermal therapy; an electrical or mechanical device; or the application
to the human body of a chemical or herbal preparation.
(4) `Massage therapist' means a person licensed as required by this
chapter, who administers massage for compensation.
(5) `Apprentice' means a person approved by the board to study
massage under the instruction of a licensed massage therapist.
(6) `Colonic irrigation' means a method of hydrotherapy used to
cleanse the colon with the aid of a mechanical device and water.
(7) `Establishment' means a site or premises or portion of a site or
premises in which a massage therapist practices massage.
(8) `Licensure' means the procedure by which a person, referred to
in this chapter as a `practitioner', applies to the board for approval to
practice massage or to operate an establishment.
(9) `Board-approved massage school' means a facility which meets
minimum standards for training and curriculum as determined by
regulation of the board.
Section 40-30-15. (A) Athletic trainers employed by or on
behalf of a professional athletic team performing or training within this
State are exempt from this chapter.
(B) The State and its political subdivisions are exempt from the
registration requirements of this chapter.
(C) Treatments for the purpose of cleansing and beautifying the skin
or in conjunction with a weight loss program, including herbal wraps,
body scrubs, paraffin wax treatments, and seaweed wraps, are exempt
from this chapter.
(D) An exemption granted is effective to the extent that an exempted
person's practice or profession overlaps with the practice of massage.
Section 40-30-20. (A) The Board of Massage is created within
the Department of Labor, Licensing and Regulation. The board consists
of seven members, who must be appointed by the Governor and whose
function it is to carry out the provisions of this chapter.
(B) Five members of the board must be licensed massage therapists
and must have been engaged in the practice of massage for not fewer
than five consecutive years before appointment to the board. The
Governor shall appoint each member, with the advice and consent of the
Senate, for a term of four years and until their successors are appointed
and qualify. Two members of the board must be lay persons. Each board
member must be a high school graduate or shall have received a
graduate equivalency diploma. Each board member must be a citizen of
the United States and a resident of this State for not fewer than five
years.
(C) The Governor may at any time fill a vacancy on the board for the
remainder of an unexpired term. No board member may serve more than
two terms, whether full or partial.
(D) In the month of January the board shall elect from its number a
chairman and a vice chairman.
(E) The board shall hold such meetings during the year as it may
determine to be necessary, one of which must be the annual meeting.
The chairman of the board may call other meetings at his discretion. A
quorum of the board consists of not fewer than four members.
(F) Board members shall receive per diem and mileage as provided
by law for members of boards and commissions.
(G) The board shall promulgate regulations as are necessary to
implement this chapter.
Section 40-30-25. Each board member is accountable to the
Governor for the proper performance of all duties and obligations of the
board member's office. The Governor shall cause to be investigated any
complaints or unfavorable reports received concerning the actions of the
board or its individual members and shall take appropriate action, which
may include removal of any board member for malfeasance,
misfeasance, neglect of duty, commission of a felony, incompetency, or
permanent inability to perform official duties.
Section 40-30-30. The department shall provide all investigative
services required in carrying out the provisions of this chapter.
Section 40-30-35. (A) A person is qualified for licensure as a
massage therapist under this chapter who:
(1) is at least sixteen years of age or has received a high
school diploma or graduate equivalency diploma;
(2) has completed a course of study at a board-approved massage
school or has completed an apprenticeship program that meets standards
adopted by the board; and
(3) has received a passing grade on an examination administered
by the department.
(B) A person desiring to be examined for licensure as a massage
therapist shall apply to the department in writing upon forms prepared
and furnished by the department. The applicants are subject to Section
40-30-75(A). Applicants may take an examination administered by the
department only upon meeting the requirements of this section as
determined by the board.
(C) Upon an applicant's passing the examination and paying the
initial licensure fee, the department shall issue to the applicant a license,
valid until the next scheduled renewal date, to practice massage.
Section 40-30-40. (A) The board may issue to an applicant,
without examination, a provisional license to practice massage, provided
the applicant meets all other conditions and requirements relating to
qualification for licensure and submits a fee pursuant to Section
40-30-70. The applicant for a provisional license must be associated
with a licensed massage therapist and shall practice only under the
supervision of the licensed massage therapist at a licensed establishment.
(B) A provisional license, when granted, shall include the name and
address of the licensed massage therapist with whom the applicant is
associated. No licensed massage therapist may supervise more than one
provisional licenseholder at the same time.
(C) The applicant must appear at the next examination for licensure
for which the applicant can be scheduled according to the regulations of
the board and department. The provisional license expires upon written
notification by the department that the applicant has failed the
examination or on the date of the scheduled examination, if the applicant
fails to appear. Acceptance of a provisional license by an applicant is
deemed to be consent for expiration of that license in accordance with
this chapter.
(D) No more than one provisional license may be issued to an
individual. No provisional license may be issued to an applicant who
has previously failed the examination.
Section 40-30-45. The board shall promulgate regulations:
(1) establishing a minimum training program for apprentices.
(2) specifying standards and procedures for issuance of a provisional
license;
(3) providing for educational standards, examination, and
certification for the practice of colonic irrigation by massage therapists.
(4) specifying licensing procedures for practitioners desiring to be
licensed in this State who hold an active license and have practiced in
another state which has licensing standards substantially similar to,
equivalent to, or more stringent than the standards of this State.
Section 40-30-50. (A) The board shall prescribe by regulation the
method for renewal of biennial licensure which shall include continuing
education requirements not to exceed twelve classroom hours per
biennium. The board shall by regulation establish criteria for the
approval of continuing education programs or courses. The
programs or courses approved by the board may include correspondence
courses which meet the criteria for continuing education courses held in
a classroom setting.
(B) A massage therapist license which is not renewed at the end of
the biennium automatically reverts to an inactive status.
Section 40-30-55. The board shall specify by regulation the general
areas of competency to be covered by examinations for licensure. These
regulations shall include the relative weight assigned in grading each
area, the grading criteria to be used by the examiner, and the score
necessary to achieve a passing grade. The board shall ensure that
examinations adequately measure both an applicant's competency and
an applicant's knowledge of related statutory requirements. Professional
testing services may be utilized to formulate the examinations.
The board shall ensure that examinations comply with state and
federal equal employment opportunity guidelines.
The department, in accordance with regulations promulgated by the
board, shall examine persons who file applications for licensure under
this chapter in all matters pertaining to the practice of massage. A
written and a practical examination must be offered at least once yearly
and at such other times as the department considers necessary.
The board shall adopt regulations providing for reexamination of
applicants who have failed the examination.
All licensing examinations must be conducted in such manner that the
applicant must be known to the department by number until the
examination is completed and the proper grade determined. An accurate
record of each examination must be made; and that record, together with
all examination papers, must be filed with the director of the department
and must be kept for reference and inspection for a period of not fewer
than two years immediately following the examination.
Section 40-30-60. (A) A license which has become inactive may
be reactivated pursuant to Section 40-30-35 upon application to the
department. The board may prescribe by regulation continuing education
requirements as a condition of reactivating a license. The continuing
education requirements for reactivating a license may not exceed twelve
classroom hours for each year the license was inactive. The board shall
by regulation establish criteria for the approval of continuing education
programs or courses. The programs or courses approved by the board
may include correspondence courses which meet the criteria for
continuing education courses held in a classroom setting. A license
which has been inactive for more than four years automatically expires
if the licensee has not made application for renewal of the license. Once
a license expires, it becomes null and void without any further action by
the board or department. One year before expiration of the license, the
department shall give notice to the licensee.
(B) The board shall promulgate regulations relating to licenses which
have become inactive and for the renewal of inactive licenses. The
board shall prescribe by regulation a fee not to exceed fifty dollars for
the reactivation of an inactive license and a fee not to exceed fifty for the
renewal of an inactive license.
Section 40-30-65. (A) No massage establishment may operate
without a license granted by the department in accordance with
regulations promulgated.
(B) The board shall adopt regulations governing the operation of
establishments and their facilities, personnel, safety and sanitary
requirements, financial responsibility, insurance coverage, and the
license application and granting process.
(C) A 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.
(D) Upon receiving the application, the department may cause an
investigation to be made of the proposed massage establishment.
(E) 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 (B), the
department shall deny the application for license. The denial must be in
writing and shall list the reasons for denial. Upon correction of the
deficiencies, an applicant previously denied permission to operate a
massage establishment may reapply for licensure.
(F) 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 (B), the department shall grant the license under such
restrictions as it considers proper as soon as the original licensing fee is
paid.
(G) Once issued, no license for operation of a massage establishment
may be transferred from one person, corporation, name, or location to
another.
(H) Renewal of license registration for massage establishments must
be accomplished pursuant to regulations promulgated by the board. The
board is further authorized to promulgate regulations governing
delinquent renewal of licenses and may impose penalty fees for
delinquent renewal.
(I) The board is authorized to promulgate regulations governing the
periodic inspection of massage establishments licensed under this
chapter.
Section 40-30-70. (A) The board shall set fees according to the
following schedule:
(1) Massage therapist application and examination fee: not to
exceed two hundred and fifty dollars.
(2) Massage therapist initial licensure fee: not to exceed one
hundred and fifty dollars.
(3) Establishment application fee: not to exceed two hundred
dollars.
(4) Establishment licensure fee: not to exceed one hundred and
fifty dollars.
(5) Biennial establishment renewal fee: not to exceed one
hundred and fifty dollars.
(6) Biennial massage therapist licensure renewal fee: not to
exceed two hundred dollars.
(7) Massage therapist reexamination fee: not to exceed two
hundred and fifty dollars.
(8) Fee for apprentice: not to exceed one hundred dollars.
(9) Colonics examination fee: not to exceed one hundred dollars.
(10) Colonics reexamination fee: not to exceed one hundred
dollars.
(11) Application and provisional licensure fee: not to exceed fifty
dollars.
(12) Application and reactivation for inactive status of a massage
therapist license fee: not to exceed two hundred and fifty dollars.
(13) Renewal fee for inactive status: not to exceed two hundred
and fifty dollars.
(B) The department shall impose a late fee not to exceed one
hundred and fifty dollars on a delinquent renewal of a massage
establishment license.
(C) The board may establish by regulation an application fee not to
exceed $100 for anyone seeking approval to provide continuing
education courses and may provide by regulation for a fee not to exceed
fifty dollars for renewal of providership.
(D) The department is authorized to charge the cost of an original
license or permit, as set forth in this chapter, for the issuance of a
duplicate license or permit requested by a massage therapist or massage
establishment.
(E) All fees collected by the department authorized by this chapter
must be remitted to the state treasurer and deposited in the General Fund
of the State.
Section 40-30-75. (A) The following constitute grounds for which
disciplinary actions specified in subsection (B) may be taken against a
massage therapist or massage establishment licensed under this chapter:
(1) attempting to procure a license to practice massage by bribery or
fraudulent misrepresentation;
(2) having a license to practice massage revoked, suspended, or
otherwise acted against, including the denial of licensure, by the
licensing authority of another state, territory, or country;
(3) being convicted or found guilty, regardless of adjudication, of a
crime in any jurisdiction which directly relates to the practice of
massage or to the ability to practice massage. Any plea of nolo
contendere is considered a conviction for purposes of this chapter;
(4) false, deceptive, or misleading advertising;
(5) aiding, assisting, procuring, or advising an unlicensed person to
practice massage contrary to this chapter or to a regulation of the
department or the board;
(6) making deceptive, untrue, or fraudulent representations in the
practice of massage;
(7) being unable to practice massage with reasonable skill and safety
by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any
other type of material or as a result of any mental or physical condition.
In enforcing this paragraph, the department, upon probable cause, may
compel a massage therapist to submit to a mental or physical
examination by physicians designated by the department. Failure of a
massage therapist to submit to an examination when so directed, unless
the failure was due to circumstances beyond the massage therapist's
control, constitutes an admission of the allegations against the massage
therapist, consequent upon which a default and final order may be
entered without the taking of testimony or presentation of evidence. A
massage therapist affected under this item at reasonable intervals must
be afforded an opportunity to demonstrate the ability to resume the
competent practice of massage with reasonable skill and safety to
clients;
(8) gross or repeated malpractice or the failure to practice massage
with that level of care, skill, and treatment which is recognized by a
reasonably prudent massage therapist as being acceptable under similar
conditions and circumstances;
(9) practicing or offering to practice beyond the scope permitted by
law or accepting and performing professional responsibilities which the
licensee knows or has reason to know that he is not competent to
perform;
(10) delegating professional responsibilities to a person when the
licensee delegating the responsibilities knows or has reason to know that
the person is not qualified by training, experience, or licensure to
perform;
(11) violating a provision of this chapter, a regulation of the board or
department, or a lawful order of the board or department previously
entered in a disciplinary hearing or failing to comply with a lawfully
issued subpoena of the department;
(12) refusing to permit the department to inspect the business
premises of the licensee during regular business hours;
(13) failing to keep the equipment and premises of the massage
establishment in a clean and sanitary condition;
(14) practicing massage at a site, location, or place which is not duly
licensed as a massage establishment, except that a massage therapist, as
provided by regulations promulgated by the board, may
provide massage services, excluding colonic irrigation, at the residence
of a client, at the office of the client, at a sports event, at a convention,
or at a trade show.
(B) When the board finds a person guilty of any of the grounds set
forth in subsection (A), it may enter an order imposing one or more of
the following penalties:
(1) refusal to license an applicant;
(2) revocation or suspension of a license;
(3) issuance of a reprimand or censure;
(4) imposition of an administrative fine not to exceed one
thousand dollars for each count or separate offense.
(C) The board may revoke or suspend the license of a massage
establishment licensed under this chapter, or deny subsequent licensure
of the establishment, in either of the following cases:
(1) upon proof that a license has been obtained by fraud or
misrepresentation;
(2) upon proof that the holder of a license is guilty of fraud or
deceit or of gross negligence, incompetency, or misconduct in the
operation of the establishment.
(D) Disciplinary proceedings must be conducted pursuant to
proceedings for a contested case under the Administrative Procedures
Act.
Section 40-30-80. A massage therapist or massage establishment
licensed under this chapter shall include the number of the license in an
advertisement of massage services appearing in a newspaper, airwave
transmission, telephone directory, or other advertising medium. Pending
licensure of a new massage establishment pursuant to the provisions of
Section 40-30-65(F), the license number of a licensed massage therapist
who is an owner or principal officer of the establishment may be used
in lieu of the license number for the establishment.
Section 40-30-85. (A) It is unlawful for a person to:
(1) hold himself out as a massage therapist unless licensed under
this chapter;
(2) operate a massage establishment unless it has been licensed
under this chapter, except that nothing in this chapter may be construed
to prevent the teaching of massage in this State at a board-approved
massage school;
(3) permit an employed person to practice massage unless
licensed under this chapter;
(4) present as his own the license of another;
(5) allow the use of his license by an unlicensed person;
(6) give false or forged evidence to the department in obtaining
a license under this chapter;
(7) falsely impersonate another licenseholder of like or different
name;
(8) use or attempt to use a license that has been revoked;
(9) otherwise violate a provision of this chapter.
(B) A person who violates this section is guilty of a misdemeanor
and, upon conviction, must be fined not more than one thousand dollars
or imprisoned not more than six months or both.
Section 40-35-90. As cumulative to any other remedy or criminal
prosecution, the department may initiate a proceeding in its own name
seeking a restraining order, injunction, or writ of mandamus against a
person who is or has been violating provisions of this chapter or the
lawful regulations or orders of the department. This proceeding must be
commenced and prosecuted before an Administrative Law Judge
pursuant to Article 5, Chapter 23, Title 1.
Section 40-35-95. A county or municipality, within its jurisdiction,
may regulate persons and establishments licensed under this chapter.
The regulation may not exceed the powers of the State under this chapter
or be inconsistent with this chapter. This section may not be construed
to prohibit a county or municipality from enacting any regulation of
persons or establishments not licensed pursuant to this
chapter."
SECTION 3. This act takes effect upon approval by the Governor.
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