South Carolina General Assembly
110th Session, 1993-1994

Bill 4793


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Introducing Body:               House
Bill Number:                    4793
Primary Sponsor:                Sharpe
Type of Legislation:            GB
Subject:                        Massage Board
Residing Body:                  House
Computer Document Number:       CYY/15643AC.94
Introduced Date:                19940222
Last History Body:              House
Last History Date:              19940504
Last History Type:              Debate adjourned until
                                Thursday, July 7, 1994
Scope of Legislation:           Statewide
All Sponsors:                   Sharpe
Type of Legislation:            General Bill



History


Bill  Body    Date          Action Description              CMN  Leg Involved
____  ______  ____________  ______________________________  ___  ____________

4793  House   19940504      Debate adjourned until
                            Thursday, July 7, 1994
4793  House   19940419      Committee Report: Favorable     27
                            with amendment
4793  House   19940222      Introduced, read first time,    27
                            referred to Committee

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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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