Bill Text: OR SB387 | 2013 | Regular Session | Enrolled
Bill Title: Relating to massage therapy; and declaring an emergency.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2013-06-21 - Effective date, June 13, 2013. [SB387 Detail]
Download: Oregon-2013-SB387-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
Senate Bill 387
Sponsored by Senator BATES (Presession filed.)
CHAPTER ................
AN ACT
Relating to massage therapy; creating new provisions; amending
ORS 687.011, 687.021, 687.061, 687.071, 687.081, 687.121,
687.123 and 687.250; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
DEFINITION OF MASSAGE FACILITY + }
SECTION 1. ORS 687.011 is amended to read:
687.011. As used in ORS 687.011 to 687.250, 687.895 and
687.991:
(1) 'Board' means the State Board of Massage Therapists.
(2) 'Certified class' means a class that is approved by the
board and is offered:
(a) By a person or institution licensed as a career school
under ORS 345.010 to 345.450;
(b) By a community college and approved by the State Board of
Education;
(c) By an accredited college or university; or
(d) In another state and licensed or approved by the
appropriate agency in that state.
{ - (3) 'Fraud or misrepresentation' means knowingly giving
misinformation or a false impression through the intentional
misstatement of, concealment of or failure to make known a
material fact or by other means. - }
{ - (4) - } { + (3) + } 'Manual' means the use of the hands
{ - or the feet, or both, or any - } { + , feet or any
other + } part of the body in the performance of massage.
{ - (5) - } { + (4) + } 'Massage' or 'massage therapy'
means the use
{ - on the human body - } of pressure, friction, stroking,
tapping or kneading { + on the human body + }, { + or the use
of + } vibration or stretching { + on the human body + } by
manual or mechanical means or gymnastics, with or without
appliances such as vibrators, infrared heat, sun lamps
{ - and - } { + or + } external baths, and with or without
lubricants such as salts, powders, liquids or creams { + , + }
for the purpose of, but not limited to, maintaining good health
and establishing and maintaining good physical condition.
{ + (5)(a) 'Massage facility' means a facility where a person
engages in the practice of massage.
(b) 'Massage facility' does not include:
Enrolled Senate Bill 387 (SB 387-A) Page 1
(A) A career school licensed under ORS 345.010 to 345.450; or
(B) A clinic or facility owned or operated by a person
authorized to practice a profession by a health professional
regulatory board, as defined in ORS 676.160. + }
(6) 'Massage therapist' means a person licensed under ORS
687.011 to 687.250, 687.895 and 687.991 to practice massage.
(7) 'Practice of massage' means the performance of massage:
(a) For purposes other than sexual contact, as defined in ORS
167.002 (5); and
(b) For compensation.
(8) 'Preceptor' means a licensed massage therapist who
contracts with an approved school or program of massage to
provide direct on-site clinical supervision of a massage student
enrolled in a certified class.
(9) 'Supervision' means:
(a) The process of overseeing and directing the training of
massage students as set forth in { + the + } rules of the board;
(b) The process of overseeing and directing a licensee { + , or
a person that has a permit to operate a massage facility, who
is + } being disciplined by the board; or
(c) Voluntary consultation with, and education of, less
experienced licensed massage therapists or practitioners in
related fields.
(10) 'Treatment' means the selection, application and practice
of massage or massage therapy essential to the effective
execution and management of a plan of care.
(11) 'Unprofessional or dishonorable conduct' means a behavior,
practice or condition that is contrary to the ethical standards
adopted by the board.
{ +
PROHIBITION AGAINST OPERATING + }
{ +
MASSAGE FACILITY WITHOUT PERMIT + }
SECTION 2. ORS 687.021 is amended to read:
687.021. (1) { - No person shall - } { + A person may
not: + }
{ + (a) + } Engage in or purport to { - be - }
{ + engage + } in the practice of massage without a massage
therapist license issued by the State Board of Massage Therapists
{ - . - } { + under ORS 687.051.
(b) Operate a massage facility or purport to operate a massage
facility without a permit issued by the board under section 4 of
this 2013 Act, unless the person is an individual massage
therapist who is working out of the individual's home.
(c) Advertise that the person engages in the practice of
massage unless the person is licensed under ORS 687.051 or holds
a permit under section 4 of this 2013 Act.
(d) Use the word 'massage' in a business name unless the person
is licensed under ORS 687.051 or holds a permit under section 4
of this 2013 Act.
(2) The board may exempt by rule a type of massage facility
from the prohibition in subsection (1)(b) of this section if the
board finds that requiring a permit for that type of facility is
not necessary to regulate the practice of massage therapy or to
protect the health and safety of the public. + }
{ - (2) It is unlawful to advertise by printed publication or
otherwise: - }
Enrolled Senate Bill 387 (SB 387-A) Page 2
{ - (a) The giving of massage treatments in this state by a
person not licensed under ORS 687.011 to 687.250, 687.895 and
687.991; or - }
{ - (b) The use of 'massage' in the business name unless the
person providing the massage is licensed under ORS 687.011 to
687.250, 687.895 and 687.991. - }
(3) The Attorney General, the prosecuting attorney of any
county or the board { - , in its own name, - } may maintain an
action for an injunction against { - any - } { + a + } person
violating this section. An injunction may be issued without proof
of actual { - damage - } { + damages + } sustained by
{ - any - } { + a + } person. An injunction does not relieve a
person from criminal prosecution for { - violation of - }
{ + violating + } this section or from any other civil, criminal
or disciplinary remedy.
{ +
ISSUANCE OF PERMIT TO OPERATE MASSAGE FACILITY + }
SECTION 3. { + Section 4 of this 2013 Act is added to and made
a part of ORS 687.011 to 687.250. + }
SECTION 4. { + (1) To be issued a permit to operate a massage
facility in this state, an applicant must:
(a) Submit an application to the State Board of Massage
Therapists in a form and manner prescribed by the board by rule;
(b) Comply with the health, safety and infection control
requirements adopted by the board under ORS 687.121;
(c) Pay the fee required under ORS 687.071 (1)(b);
(d) If the applicant is a natural person, be at least 18 years
of age; and
(e) If the applicant is not a natural person, comport with the
laws of this state related to business formation, including
making an appropriate filing with the Secretary of State.
(2) A massage facility for which a person has been issued a
permit under this section may provide massage therapy only
through the use of massage therapists licensed under ORS 687.051.
(3) The board may authorize relocating a massage facility if:
(a) The permittee submits an application in a form and manner
prescribed by the board by rule;
(b) The permittee pays the fee required under ORS 687.071
(1)(h); and
(c) The permittee complies with any other applicable rule of
the board.
(4) The board may authorize transferring a permit to operate a
massage facility from one person to another person if the person
to whom the permit will be transferred:
(a) Submits an application in a form and manner prescribed by
the board by rule;
(b) Pays the fee required under ORS 687.071 (1)(i);
(c) Makes all necessary changes to documents on file with the
Secretary of State; and
(d) Complies with any other applicable rule of the board.
(5) The board may authorize transferring the name of a massage
facility to another massage facility if the permittee who
operates the massage facility to which the name will be
transferred:
(a) Submits an application in a form and manner prescribed by
the board by rule;
(b) Pays the fee required under ORS 687.071 (1)(j);
Enrolled Senate Bill 387 (SB 387-A) Page 3
(c) Makes all necessary changes to documents on file with the
Secretary of State; and
(d) Complies with any other applicable rule of the board. + }
{ +
FEES RELATED TO MASSAGE FACILITIES + }
SECTION 5. ORS 687.071 is amended to read:
687.071. (1) The State Board of Massage Therapists shall impose
fees for the following:
(a) { + Issuance or renewal of a + } massage therapist license
{ - issuance or renewal - } .
{ + (b) Issuance or renewal of a permit to operate a massage
facility. + }
{ - (b) - } { + (c) + } Examinations and reexaminations.
{ - (c) - } { + (d) + } Inactive status.
{ - (d) - } { + (e) + } Delinquency in renewal of a
license { + or of a permit to operate a massage facility + }.
{ - (e) - } { + (f) + } Temporary practice permit.
{ - (f) - } { + (g) + } Application for massage license
examination.
{ + (h) Relocation of a massage facility as described in
section 4 (3) of this 2013 Act.
(i) Transferring a permit to operate a massage facility from
one person to another person as described in section 4 (4) of
this 2013 Act.
(j) Transferring the name of a massage facility to another
massage facility as described in section 4 (5) of this 2013
Act. + }
(2) If the effective period of { - the - } { + an + }
initial massage therapist license { + or permit to operate a
massage facility + } is to be less than 12 months by reason of
the expiration date established by rule of the board, the
required license fee shall be prorated to represent one-half of
the { - biennial - } rate { + for a biennial period + }.
(3) The board shall examine or reexamine { - any - }
{ + an + } applicant for a massage therapist license who pays a
fee for each examination and who meets the requirements of ORS
687.051.
(4) All moneys received by the board shall be paid into the
account created by the board under ORS 182.470 and are
{ - appropriated - } continuously { + appropriated + } to the
board { - and shall be used only - } for the administration
and enforcement of ORS 687.011 to 687.250, 687.895 and 687.991.
{ +
CONFORMING AMENDMENTS + }
SECTION 6. ORS 687.061 is amended to read:
687.061. (1) Licenses issued under { - ORS 687.011 to
687.250, 687.895 and 687.991 - } { + ORS 687.051 and permits
issued under section 4 of this 2013 Act + } expire on the date
established by the State Board of Massage Therapists by rule and
may be renewed after payment of { - the - } { + a + } renewal
fee established by the board { + under ORS 687.071 + }. If the
renewal fee is not paid by the expiration date established by the
board, a delinquency fee must be paid prior to renewal. Licenses
{ + and permits + } may be renewed within three years after the
date of expiration upon payment of the renewal fee and the
delinquency fee established by the board.
Enrolled Senate Bill 387 (SB 387-A) Page 4
(2) An individual who { - practices - } { + engages in the
practice of + } massage without holding a valid
{ - unexpired - } license issued under
{ - ORS 687.011 to 687.250, 687.895 and 687.991 - } { + ORS
687.051 or a person who operates a massage facility without
holding a valid permit issued under section 4 of this 2013
Act + } is subject to disciplinary action and civil penalty by
the board, injunction and criminal prosecution. No disciplinary
action, civil penalty or criminal proceeding shall be initiated
under this section after the date that a renewal and delinquency
fee is paid. However, payment of a renewal and delinquency fee
does not stay any disciplinary action, civil penalty or criminal
proceeding already assessed or initiated.
SECTION 7. ORS 687.081 is amended to read:
687.081. (1) The State Board of Massage Therapists may
discipline a { - licensee - } { + person + }, deny, suspend,
revoke or refuse to renew a license { - , issue a reprimand,
censure a licensee or place a licensee on probation if the
licensee - } { + to practice massage or a permit to operate a
massage facility and issue a reprimand to or censure or place on
probation a licensee or permittee, if the person + }:
(a) Has violated { - any - } { + a + } provision of ORS
687.011 to 687.250, 687.895 and 687.991 or any rule of the board
adopted under ORS 687.121.
(b) Has made { - any - } { + a + } false representation or
statement to the board in order to induce or prevent action by
the board.
(c) { + Is licensed under ORS 687.051 or holds a permit under
section 4 of this 2013 Act and + } has a physical or mental
condition that makes the licensee { + or permittee + } unable to
conduct safely the practice of massage { + or operation of a
massage facility + }.
(d) { + Is licensed under ORS 687.051 or holds a permit under
section 4 of this 2013 Act and + } is habitually intemperate in
the use of alcoholic beverages or is addicted to the use of
habit-forming drugs or controlled substances.
(e) Has misrepresented to { - any - } { + a + } patron
{ - any - } services rendered.
(f) Has been convicted of a crime that bears a demonstrable
relationship to the practice of massage { + or operation of a
massage facility + }.
(g) { + Whether licensed to practice massage or applying for a
license to practice massage, + } fails to meet { - with any - }
{ + a + } requirement under ORS 687.051.
{ + (h) Whether permitted to operate a massage facility or
applying for a permit to operate a massage facility, fails to
meet a requirement under section 4 of this 2013 Act. + }
{ - (h) - } { + (i) + } Violates { - any - } { + a + }
provision of ORS 167.002 to 167.027.
{ - (i) - } { + (j) + } Engages in unprofessional or
dishonorable conduct.
{ - (j) - } { + (k) + } Has been the subject of
disciplinary action as a massage therapist { + or operator of a
massage facility + } by { - any other - } { + another + }
state or territory of the United States or by a foreign country
and the board determines that the cause of the disciplinary
action would be a violation under ORS 687.011 to 687.250, 687.895
{ - and - } { + or + } 687.991 or { + the + } rules of the
board if
Enrolled Senate Bill 387 (SB 387-A) Page 5
{ - it - } { + the cause of the disciplinary action had + }
occurred in this state.
(2) If the board places a licensee { + or permittee + } on
probation pursuant to subsection (1) of this section, the board
may impose and at any time modify the following conditions of
probation:
(a) Limitation on the { - allowed - } scope of { + the + }
practice { + of massage or the operation of a massage
facility + }.
(b) Referral to the impaired health professional program
established under ORS 676.190.
(c) Individual or peer supervision.
(d) { - Such other conditions as the board may consider - }
{ + Any other condition that the board considers + }necessary
for the protection of the public { - and - } { + or + } the
rehabilitation of the licensee { + or permittee + }.
(3) If the board determines that { - a licensee's - }
{ + the + } continued practice { + of massage by a licensee or
the continued operation of a massage facility by a permittee + }
constitutes a serious danger to the public, the board may impose
an emergency suspension of the license { + or permit + } without
a hearing. Simultaneous with the order of suspension, the board
shall institute proceedings for a hearing as provided under ORS
687.011 to 687.250, 687.895 and 687.991. The suspension shall
continue unless and until the licensee { + or permittee + }
obtains injunctive relief from a court of competent jurisdiction
or the board determines that the suspension is no longer
necessary for the protection of the public.
(4) In addition to { + or instead of + } the discipline
described in subsection (1) of this section, the board may impose
a civil penalty { - as provided - } under ORS 687.250. Civil
penalties under this subsection shall be imposed pursuant to ORS
183.745.
(5) Prior to imposing { - any of the sanctions - } { + a
sanction + } authorized under this section, the board shall
consider, but is not limited to { + considering + }, the
following factors:
(a) The person's past history in observing the provisions of
ORS 687.011 to 687.250, 687.895 and 687.991 and the rules
{ - adopted pursuant thereto - } { + of the board + };
(b) The effect of the violation on public safety and welfare;
(c) The degree to which the action subject to sanction violates
professional ethics and standards of practice;
(d) The economic and financial condition of the person subject
to sanction; and
(e) Any mitigating factors that the board may choose to
consider.
(6) In addition to the sanctions authorized by this section,
the board may assess against a { - licensee the costs
associated with the - } { + person the reasonable costs of
a + } disciplinary action taken against the { - licensee - }
{ + person + }.
(7) The board shall adopt a code of ethical standards for
{ - practitioners of - } massage { + therapists + } and shall
take appropriate measures to ensure that all applicants and
{ - practitioners of - } massage { + therapists + } are aware
of those standards.
(8) Upon receipt of a complaint under ORS 687.011 to 687.250,
687.895 and 687.991, the board shall conduct an investigation as
described under ORS 676.165.
Enrolled Senate Bill 387 (SB 387-A) Page 6
(9) Information that the board obtains as part of an
investigation into { - licensee or applicant conduct - }
{ + the conduct of a person + } or as part of a contested case
proceeding, consent order or stipulated agreement involving
{ - licensee or applicant conduct - } { + the conduct of a
person + } is confidential as provided under ORS 676.175.
SECTION 8. ORS 687.121 is amended to read:
687.121. The State Board of Massage Therapists may adopt rules:
(1) Establishing reasonable standards concerning the sanitary
{ - , hygienic and healthful conditions of - } { + and
hygienic conditions of, and public health and safety for, + }
premises and facilities used by massage therapists.
{ + (2) Establishing health, safety and infection control
requirements for massage facilities. + }
{ - (2) - } { + (3) + } Relating to the methods and
procedures used in the practice of massage.
{ - (3) - } { + (4) + } Governing the examination and
investigation of applicants for { - the licenses issued under
ORS 687.011 to 687.250, 687.895 and 687.991 - } { + a license
under ORS 687.051 or a permit under section 4 of this 2013
Act + } and the issuance, renewal, suspension and revocation of
such licenses { + and permits + }.
{ - (4) - } { + (5) + } Setting standards for certifying
classes under ORS 687.051.
{ - (5) - } { + (6) + } Requiring that { - massage
therapists supply - } { + a massage therapist supply + } the
board with the accurate, current address or addresses where
{ - they practice - } { + the massage therapist engages in the
practice of + } massage.
{ + (7) Requiring that a person who holds a permit to operate
a massage facility supply the board with the accurate, current
address where the massage facility is located. + }
{ - (6) - } { + (8) + } Fixing the educational, training
and experience requirements for licensing by indorsement or
reciprocity.
{ - (7) - } { + (9) + } Establishing requirements for
issuance and retention of an inactive { + massage therapist + }
license { + or permit to operate a massage facility + }.
{ - (8) - } { + (10) + } Regarding any { + other + }
matter that the board reasonably considers necessary and proper
for the administration and enforcement of ORS 687.011 to 687.250,
687.895 and 687.991.
SECTION 9. ORS 687.123 is amended to read:
687.123. Upon complaint about { + a massage facility or + }
the premises on which a massage therapist practices massage, the
State Board of Massage Therapists or its authorized
representative may inspect { - such - } { + the massage
facility or + } premises in order to determine whether the
{ + massage facility or + } premises meet the standards set by
order of the board under ORS 687.121 (1) { + or (2) + }.
SECTION 10. ORS 687.250 is amended to read:
687.250. (1) The State Board of Massage Therapists shall report
to the proper district attorney all cases that in the judgment of
the board warrant criminal prosecution under ORS 687.991.
(2) The board may, in its own name, assess a civil penalty
against { - any licensed or unlicensed person violating - }
{ + a person who violates + } a provision of ORS 687.011 to
687.250, 687.895 and 687.991. The board may assess the civil
penalty instead of or in addition to disciplinary action under
ORS 687.081, an injunction issued under ORS 687.021 or criminal
Enrolled Senate Bill 387 (SB 387-A) Page 7
prosecution by the district attorney under this section. The
amount of the civil penalty may not exceed $1,000 for any single
violation. Except as the board may otherwise provide under ORS
182.462 (1)(e), moneys collected through the assessment of civil
penalties by the board under this subsection or ORS 687.081 shall
be deposited into the account created by the board pursuant to
ORS 182.470 and are continuously appropriated to the board for
carrying out the provisions of ORS 687.011 to 687.250, 687.895
and 687.991.
{ +
OPERATIVE DATE + }
SECTION 11. { + (1) Sections 3 and 4 of this 2013 Act and the
amendments to ORS 687.011, 687.021, 687.061, 687.071, 687.081,
687.121, 687.123 and 687.250 by sections 1, 2 and 5 to 10 of this
2013 Act become operative January 1, 2014.
(2) The State Board of Massage Therapists may take any action
before the operative date specified in subsection (1) of this
section that is necessary to enable the board to exercise, on and
after the operative date specified in subsection (1) of this
section, all the duties, functions and powers conferred on the
board by sections 3 and 4 of this 2013 Act and the amendments to
ORS 687.011, 687.021, 687.061, 687.071, 687.081, 687.121, 687.123
and 687.250 by sections 1, 2 and 5 to 10 of this 2013 Act. + }
{ +
UNIT CAPTIONS + }
SECTION 12. { + The unit captions used in this 2013 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2013 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 13. { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect on
its passage. + }
----------
Enrolled Senate Bill 387 (SB 387-A) Page 8
Passed by Senate March 5, 2013
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 3, 2013
.............................................................
Tina Kotek, Speaker of House
Enrolled Senate Bill 387 (SB 387-A) Page 9
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 387 (SB 387-A) Page 10
