New Florida Law Prohibits Massage Therapy Businesses from Operating Between Certain Hours: Should Remedy “Human Trafficking” in Florida

LOL Blog Label 2By Lance O. Leider, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The operation of massage therapy establishments between certain late night and early morning hours will be prohibited under a new Florida law. Section 480.0475, Florida Statutes, becomes effective on October 1, 2013. The new Florida law restricts massage therapy businesses from being open for business between midnight and 5:00 A.M., with limited exceptions.

Click here to read Section 480.0475, Florida Statutes.

This law represents a significant curtailment of an establishment owner’s right to operate his/her business. The law states that it does not matter if an establishment is operating legitimately. The Florida Legislature and the Attorney General (AG) have cast a wide net to end what they refer to as a “human trafficking epidemic” in Florida massage establishments.

From our perspective, this will do nothing to help resolve any “human trafficking” problem that exists and is merely an invalid rationalization for this law. We have represented many massage therapists in Florida and have counseled many more. So far we have never encountered any that have been involved in any “human trafficking,” whether they are licensed massage therapists working in spas and salons or whether they are the owners of message therapy establishments.

Exceptions to the Law.

The law does not apply to massage establishments located on the premises of health care facilities, health care clinics, hotels, motels and public airports. It similarly does not apply to massages performed by a massage therapist under a medical prescription from a licensed physician, physician assistant, osteopathic physician, chiropractic physician, podiatric physician, advanced registered nurse practitioner (ARNP) or dentist.

Also, the law does not restrict massage therapists from operating between midnight and 5:00 A.M., during a special event if the county or municipality in which the establishment operates has approved such operation during the event.

Massage Therapy Businesses as Primary Residence.

Section 480.0475, Florida Statutes, also states that a massage establishment cannot be used as a primary residence unless it is zoned for residential use.

The Florida rules define “massage establishment” as “a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation.”

Penalties for Not Complying with the Law Include Fines and Jail Time.

A person who violates any provision of this statute is subject to criminal penalties.

The first violation is considered a misdemeanor of the second degree. The offender could face jail time of up to sixty (60) days and a $500 fine. The second violation is considered a misdemeanor of the first degree. The offender could spend up to a year in jail and have to pay a $1,000 fine. For someone who commits a third or subsequent violations, that person could be charged with a felony of the third degree. That offender faces imprisonment of up to five (5) years and a $5,000 fine.

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.

We have represented a number of Chinese massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH). Many of these have confided in us that they believe there may be discrimination involved in the way they were targeted. We are looking into such allegations for several clients.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you know about this Florida Statue? Does your massage therapy business comply with this law already? Please leave any thoughtful comments below.

Have you been the subject of any discrimination or harassment from investigators based on your race or national origin? We’d like to hear from you if you have.

About the Authors: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Statute on Massage Therapy Establishments: Employees Must Present Documentation to Department of Health and Law Enforcement Agencies

By Lance O. Leider, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Currently there is a fight in Florida, headed by the Attorney General (AG), to stop human trafficking. AG Pam Bondi has worked to make Florida a zero-tolerance state for human trafficking. During the 2012 legislative session, she advocated for legislation that was supposed to crack down on human trafficking.

Section 480.0535, Florida Statutes, is one result of her efforts. The statute contains details on the documentation required for employees working in a massage therapy establishment. These requirements provide the Department of Health (DOH) and law enforcement agencies the means to forcibly identify, investigate and arrest people who are supposedly involved in human trafficking.

Click here to read Section 480.0535, Florida Statutes.

This statute became effective on July 1, 2012.

Documents Required While Working in a Massage Therapy Establishment.

Under Section 480.0535, Florida Statutes, a person employed by a massage therapy establishment and any person performing massage therapy must immediately present, upon the request of a DOH investigator or a law enforcement officer, a form of valid government identification.

Valid identification includes:

– A valid driver’s license;
– A valid identification card;
– A valid United States passport;
– A naturalized certificate issued by the United States Department of Homeland Security;
– A valid alien registration receipt card (green card); or
– A valid employment authorization card issued by the United States Department of              Homeland Security.

A person operating a massage therapy establishment must immediately present upon the request of a DOH investigator or law enforcement officer:

– Valid government identification while in the establishment; and
– A copy of the documentation specified above for each employee and any person              performing massage therapy in the establishment.

Penalties for Not Complying.

A person who violates any provision of this statute is subject to criminal penalties for failure to comply with the documentation requirements.

The first violation is considered a misdemeanor of the second degree. The offender could face jail time of up to sixty (60) days and a $500 fine. The second violation is considered a misdemeanor of the first degree. The offender could spend up to a year in jail and have to pay a $1,000 fine. For someone who commits a third or subsequent violations, that person could be charged with a felony of the third degree. That offender faces imprisonment of up to five (5) years and a $5,000 fine.

This statute criminalized the act of not having identification on you during work as a massage therapist.

Previous Investigation of Massage Therapy Businesses Led to Emergency Suspension Orders.

You may remember back in September 2012, an investigation into several massage therapy businesses by the Florida DOH, Clearwater Human Trafficking Task Force and the South Florida Human Trafficking Task Force turned up more than 200 massage therapists who appeared to have obtained their massage therapy licenses by fraud. Subsequently, the Florida Surgeon General signed emergency suspension orders (ESOs) for more than 160 massage therapists in Florida.

Authorities said the ESOs were, in part, an effort to target Florida’s human trafficking problem. Authorities stated that massage parlors are a typical place for finding victims of human trafficking. Click here to read more from our previous blog.

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.

We have represented a number of Chinese massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH). Many of these have confided in us that they believe there may be discrimination involved in the way they were targeted. We are looking into such allegations for several clients.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you know about this Florida Statue? Does your massage therapy business comply with the statute? Do you think it will help in preventing human trafficking? Please leave any thoughtful comments below.

Have you been the subject of any discrimination or harassment from investigators based on your race or national origin? We’d like to hear from you if you have.

About the Authors: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida HB 0653 Signed Into Law; Effective 2/1/2012

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Florida Legislature unanimously passed HB 653 which relaxes some of the draconian exclusions enacted under SB 1986, which went into effect on July 1, 2009. SB 1986, which added provisions to Chapter 456, Florida Statutes, among others, prevented numerous healthcare providers from obtaining or renewing licenses based on prior criminal convictions, which could have occurred decades earlier.

HB 653 has been passed unanimously by the Florida Legislature and has been signed by the Governor to be effective July 1, 2012. It has been signed into law as Chapter 2012-64, Florida Laws and amends Section 456.0635(5), Florida Statutes (2012).

Under HB 653, the professional boards within the Department of Health (such as the Board of Medicine, Board of Nursing, Board of Psychology, Board of Massage Therapy, etc.) now will, if signed by the Governor, only prohibit the renewal or granting of a health professional’s license, certificate or registration, if the individual:

1. Has been convicted of, or entered a plea of guilty or no contest to, regardless of adjudication, a felony under Chapters 409 (Medicaid offenses), 817 (theft or fraud) or 893 (drug offenses), Florida Statutes, or similar laws in other jurisdictions, unless the individual successfully completed a drug court program for the felony and provides proof that the plea was withdrawn or the charges were dismissed, or unless the sentence and any related period of probation for such conviction or plea ended:

– For first and second degree felonies, more than fifteen (15) years before the date of application;

– For third degree felonies, more than ten (10) years before the date of application, except for third degree felonies under Section 893.13(6)(a), Florida Statutes; and

– For third degree felonies under Section 893.13(6)(a), Florida Statutes, more than five (5) years before the date of application.

2. Has been convicted of, or entered a plea of guilty or no contest to, regardless of adjudication, a felony under 21 U.S.C. Sections 801-970 or 42 U.S.C. Sections 1395-1396 (federal Medicare & Medicaid offenses), unless the sentence and any subsequent period of probation for such convictions or plea ended more than fifteen (15) years before the date of application; or

3. Is listed on the OIG’s list of excluded individuals and entities.

This new legislation has the effect of reducing the period of time a health professional may be prohibited from holding a license because of a conviction for one of the enumerated felonies. Under the current law, there is a fifteen (15) year prohibition for all enumerated offenses. The new legislation, if signed, will reduce the period to as little as five (5) years for drug offenses.

However, it also broadens the reach of the current Florida law by including, for the first time, convictions under “similar laws in other jurisdictions.” This may now “catch” many to whom the Florida law did not previously apply.

HB 653 also allows individuals previously denied renewals under SB 1986 who at are now eligible for renewal to obtain a license without retaking and passing their examinations.

The latter requirement above, number 3, may present a “catch 22” for many health professionals. Usually, if a licensed health professional is convicted of a felony, loses his/her license or is denied renewal of a health professional’s license, this is reported to the National Practitioner Data Bank (NPDB). The NPDB now includes reports previously made to the Healthcare Integrity and Protection Data Bank (HIPDB). If this occurs, in most cases the Office of Inspector General (OIG) commences action to exclude the professional from the Medicare Program. This automatically places the health provider’s name on the OIG’s List of Excluded Individuals and Entities (LEIE). Therefore, most licensed health professionals, even if they are no longer prohibited from holding a license under numbers 1 and 2 above, may still be prohibited because of requirement number 3 above.

Doubtless, this lacuna (gap) in this legislation will require additional corrective legislation in the future.

To view a summary of HB 653, click here.

To view the Bill Analysis of HB 653 from the Health and Human Services Quality Subcommittee, click here.

To view the Bill Analysis of HB 653 from the Health Care Appropriations Subcommittee, click here.

To view the Bill Analysis of HB 653 from the Health and Human Services Committee, click here.

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

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