ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4035
(By Delegates Fleischauer, Staton, Fragale, Dalton, Varner,
Hutchins and Yeager)
[Passed March 14, 1998; in effect from passage.]
AN ACT to amend and reenact section three-z, article one, chapter
seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections three, five, six, seven and eleven, article thirty- seven, chapter thirty of said code, relating to licensing
massage therapists; excepting licensed massage therapists
from the authority of county commissions; composition of
board; duties of board to propose rules; requirements for
licensure; and exemptions.
Be it enacted by the Legislature of West Virginia:
That section three-z, article one, chapter seven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections three, five,
six, seven and eleven, article thirty-seven, chapter thirty of
said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3z. Authority of counties to govern business of massage.
(a) In addition to all other powers and duties now conferred
by law upon county commissions, county commissions, may by order
duly entered of record, adopt an ordinance which provides for the
licensing for the regulation of the business of massage when
carried on within the county. The ordinances may be adopted
either for the entire county, or for any portion or portions of
the county which may constitute an effective area or areas for
those purposes, without the necessity of adopting the ordinances
for any other portion of the county. Notwithstanding any other
provision of this section to the contrary, no ordinance shall
apply to or affect any territory within the boundaries of any
municipal corporation which has adopted and has in effect an
ordinance which provides for the regulation of the business of
massage, unless and until the municipal corporation provides for
the regulation of the business of massage by ordinance.
(b) The ordinance may condition the issuance of a license to
engage in the business of massage upon proof that a massage
business meets the reasonable standards set by the ordinance,
which may include, but need not be limited to, the following
areas:
(1) Requirement that massage personnel be at least eighteen
years of age;
(2) Sanitary conditions of the massage establishment;
(3) Hours of operation of the massage business; and
(4) Prohibition of the sale or serving of food or beverage
or the conducting of nonmassage business on the premises of the
massage business. In the event that the business premises in
which the massage business is conducted has separate quarters
used for purposes other than the massage business, the
prohibition of this subsection applies only to the portion of the
premises exclusively devoted to the conduct of the massage
business.
(c) The ordinance may also provide that a license to engage
in the business of massage may be denied upon a showing by the
licensing authority of any of the following:
(1) Proof that the massage personnel or the owners or
operators of a massage business have been convicted of a
violation of any of the provisions of article eight, eight-a,
eight-b or eight-c, chapter sixty-one of this code or proof that
massage personnel or the owners or operators of a massage
business have been convicted in any other state of any offense
which, if committed or attempted in this state, would have been
punishable as one of the offenses set forth in this subsection;
(2) Proof that the massage personnel, or the owners, or
operators of a massage business have been convicted of any felony
offense involving the sale of a controlled substance specified in
section two hundred four, two hundred six, two hundred eight, two
hundred ten or two hundred twelve, article two, chapter sixty-a
of this code or proof that the massage personnel or the owners or
operators of the massage business have been convicted in any other state of any offense, which if committed or attempted in
this state, would have been punishable as one or more of the
offenses set forth in this subsection.
(d) The ordinance may require that application to conduct
the business of massage be made on a form prescribed by the
licensing authority, which may require the following information:
(1) The name of the applicant;
(2) If the applicant is an unincorporated association, the
names and addresses of the members of its governing board;
(3) If the applicant is a corporation, the names and
addresses of its officers and directors;
(4) The place at which the applicant will conduct its
operations and whether that place is owned or leased by the
applicant;
(5) The name of the owner of the place at which the
applicant will conduct its operation, if not the same as the
applicant;
(6) The number of members of the applicant;
(7) The names of all massage personnel, owners, operators or
other employees of the massage business;
(8) Any other information as the licensing authority may
reasonably require which may include, but need not be limited to,
the criminal records, if any, of each member of the applicant's
governing board and/or its officers and directors, or any of the
massage personnel, owners, operators or other employees of the
massage business who have been convicted of any violation of any of the provisions set forth in subsection (c) of this section.
The ordinance may require that the application be verified
by the applicant or by each member of the governing board of the
applicant if an unincorporated association or, if the applicant
is a corporation, by each of its officers and all members of its
board of directors. The ordinance may also require that the
application be accompanied by a license fee not exceeding the sum
of one hundred dollars. Any license issued under the provisions
of this section is effective for one year and may be renewed upon
the same showing as required for the issuance of the initial
license, together with the payment of fees, if any. The
ordinance may require license holders to notify the licensing
authority of any changes in the information required by the
application within a reasonable period after the changes
occurred.
(e) This section does not apply to barbers or beauticians
licensed to practice, or to persons licensed to practice in any
of the health professions, or to persons licensed to practice as
massage therapists, under the provisions of chapter thirty of
this code when engaging in the practice within the scope of his
or her license.
(f) Nothing contained in this chapter precludes a county
commission from prohibiting a person of one sex from engaging in
the massage of a person of the other sex.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 37. MASSAGE THERAPISTS.
§30-37-3. Board established; membership; terms.
(a) The West Virginia massage therapy licensure board
consists of five members who are appointed by the governor with
the advice and consent of the Senate. Three members of the
board shall be massage therapists, one member of the board shall
be an osteopathic physician or chiropractor who is knowledgeable
of modalities which are included in massage therapy, and one
member of the board shall be a lay person who is not a massage
therapist or other health care professional.
(b) The terms of board members shall be staggered initially
from the first day of July, one thousand nine hundred ninety- seven. The governor shall appoint initially three members for a
term of one year and two members for a term of two years.
Subsequent appointments shall be for a term of two years. Each
member shall serve until that member's successor is appointed and
qualified, unless the board member is no longer competently
performing the duties of office. Any vacancy on the board shall
be filled by the governor for the balance of the unexpired term.
The governor may remove members of the board from office for
cause.
§30-37-5. Massage therapy board fund; fees; expenses;
disposition of funds.
(a) There is hereby continued a massage therapy licensure
board fund in the state treasurer's office.
(b) The board may set, by legislative rule, reasonable fees
for the issuance or renewal of licenses and its other services. All funds to cover the compensation and expenses of the board
members shall be generated by the fees set under this subsection.
(c) The disposition of all funds received by the board shall
be governed by the provisions of section ten, article one,
chapter thirty of this code.
§30-37-6. Duties of board; authorization to propose rules and
fees.
The board shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty- nine-a of this code as are necessary to implement the provisions
of this article, which shall include provisions regarding:
(a) Licensure and continuing education requirements,
standards of practice, professional ethics, disciplinary actions,
and other issues of concern;
(b) Personal cleanliness of massage therapists and the
sanitary conditions of towels, linens, creams, lotions and other
materials, facilities, and equipment used in the practice of
massage therapy; and
(c) All fees for licensure, renewal of licensure, and all
other related matters.
§30-37-7. Requirements for licensure.
(a) The board shall propose rules for legislative approval
establishing a procedure for licensing of massage therapists.
License requirements shall include the following:
(1) Completion of a program of massage education at a school approved by the West Virginia state college system board or by a
state agency in another state, the District of Columbia or a
United States territory which approves educational programs and
which meets qualifications for the national certification exam
administered through the national certification board for
therapeutic massage and bodywork. This school shall require a
diploma from an accredited high school, or the equivalent, and
require completion of at least five hundred hours of supervised
academic instruction. The requirements of this subdivision may
be waived for those practitioners who were practicing massage
therapy prior to the first day of December, one thousand nine
hundred ninety-four; or
(2) Successful completion of the national certification for
therapeutic massage and bodywork (NCTMB) examination; except that
any person who is currently practicing massage therapy as of the
thirtieth day of June, one thousand nine hundred ninety-eight,
and has completed at least two hundred fifty hours of training in
a massage therapy educational program and is currently working
toward completion of a program accepted by the national
certification board for therapeutic massage and bodywork to be
eligible to take the national certification exam, may be granted
a two-year provisional license without having successfully
completed the national certification for therapeutic massage and
bodywork examination. Any provisional license granted under this
exception expires in two years if the national certification for
therapeutic massage and bodywork examination is not successfully completed within that time; and
(3) Payment of a reasonable fee every two years required by
the board which shall compensate and be retained by the board for
the costs of administration.
(b) In addition to provisions for licensure, the rules shall
include the following:
(1) Requirements for completion of continuing education
hours conforming to NCTMB guidelines; and
(2) Requirements for issuance of a reciprocal license to
licensees of states with requirements which may include the
successful completion of the NCTMB examination.
(c) A massage therapist who is licensed by the board shall
be issued a certificate and a license number. The current, valid
license certificate shall be publicly displayed and available for
inspection by the board and the public at a massage therapist's
work site.
§30-37-11. Exemptions.
Nothing in this article may be construed to prohibit or
otherwise limit:
(a) The practice of a profession by persons who are
licensed, certified or registered under the laws of this state
and who are performing services within their authorized scope of
practice. Persons exempted under this subdivision include, but
are not limited to, those licensed, certified or registered to
practice within the scope of any branch of medicine, nursing,
osteopathy, chiropractic and podiatry, as well as licensed, certified or registered barbers, cosmetologists, athletic
trainers, physical and occupational therapists; and any student
enrolled in a program of massage education at a school approved
by the West Virginia state college system board or by a state
agency in another state, the District of Columbia or a United
States territory which approves educational programs and which
meets qualifications for the national certification exam
administered through the national certification board for
therapeutic massage and bodywork, provided that the student does
not hold himself or herself out as a licensed massage therapist;
and
(b) The activities of any resort spa that has been operating
on a continuing basis since the first day of January, one
thousand nine hundred seventy-five, or any employees of the
resort spa. The exemption set forth in this subsection does not
extend to any person, corporation or association providing escort
services, nude dancing, or other sexually oriented services not
falling within the scope of massage therapy as defined in this
article, irrespective of how long the person, corporation or
association has been in operation.
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