Current through Register Vol. 28, No. 3, September 1, 2024
12.1 Definitions.
"Advertise" or "advertising" means the public promotion of a service, by use of printed media, the internet, or any other advertising method or medium, to attract and encourage individuals to engage, purchase, or use the service referenced in the content of the advertisement.
"Dormitory" means a location in a massage establishment, other than a residence, where there are signs that individuals are living there or engaged in communal sleeping, including but not limited to, beds, mattresses or cots.
"Massage establishment" means any place of business that offers the practice of massage and bodywork and where the practice of massage and bodywork is conducted on the premises of the business, or that represents itself to the public by any title or description of services incorporating the words "bodywork," "massage," "massage therapy," "massage practitioner," "massagist," "masseur," "masseuse," or other terms or modalities included in the definition of "massage and bodywork" in Section 2.0 of the Board's rules and regulations or any images or photographs depicting massage or bodywork. A "place of business" includes any office, clinic, facility, salon, spa, or other location where a person or persons engage in the practice of massage and bodywork. The residence of a therapist, or an out call location which is not owned, rented, or leased by a massage therapist or massage establishment, shall not be considered a massage establishment, unless the location is advertised as the therapist's or establishment's place of business. The term "massage establishment" shall not include any "facility" as defined in §1131(4) of Title 16, any "hospital" as defined in §1001(3) of Title 16, physician offices, physical therapy facilities, chiropractic offices, or athletic training facilities, whether or not they employ, contract with, or rent to massage therapists, or institutions of secondary or higher education when massage therapy is practiced in connection with employment related to athletic teams or any other business establishment licensed pursuant to another chapter of this Title 24 of the Delaware Code.
"Professional-in-charge" means a licensee who is responsible for the operation of a massage establishment, including ensuring that all employees and contractors are licensed, where required by law.
"Sexual activity" means any direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation or anal intercourse. Sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm or ejaculation has occurred.
"Sexually oriented business" means a sex parlor, massage parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult motel, or other commercial enterprise which has as its primary business the offering of a service or the sale, rent or exhibit of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer.
12.2 License required.
12.2.1 All massage establishments shall be licensed pursuant to Chapter 53 of Title 24 of the Delaware Code and Section 12.0.
12.2.2 No massage establishment shall operate until the Board has approved and licensed the establishment.
12.2.3 A massage establishment license shall issue for a single, identified location and is not assignable or transferable.
12.2.4 When a massage establishment closes, is sold, has a change of name or change of ownership, the establishment shall notify the Board of such change within 10 days, and the license of the establishment shall be voided and a new license must be obtained.
12.2.4.1 The application for a new license shall be on the same form, containing the same information required for an original license, and shall be accompanied by the fee as determined by the Division.
12.2.4.2 The Board may issue a temporary operating permit to continue operation of the establishment for a period of up to 90 days pending the final disposition of the application.
12.2.5 All massage establishments shall have a professional-in-charge, who is a Delaware licensed massage therapist or certified massage technician, and who is responsible for supervision and operation of the establishment.
12.2.6 A massage establishment shall employ or contract for only Delaware licensed massage therapists or certified massage technicians to practice massage and bodywork.
12.2.7 A person licensed by the Board as a massage therapist or certified massage technician shall not work in a massage establishment unless such establishment has been licensed by the Board.
12.2.8 A sexually oriented business may not obtain a massage establishment license from the Board or operate as a massage establishment.
12.3 Application for massage establishment license.
12.3.1 An applicant for a massage establishment license shall file an application, on a Board approved form, with the fee set by the Division.
12.3.2 The application shall include:
12.3.2.1 The name and address of the massage establishment.
12.3.2.2 If a corporation:
12.3.2.2.1 The name and address of any person who directly or indirectly owns or controls the outstanding shares of stock in the massage establishment;
12.3.2.2.2 The names and addresses of the directors; and
12.3.2.2.3 A copy of the corporate charter and a statement identifying the corporation's registered agent for service.
12.3.2.3 The name and address of the sole proprietor or partners.
12.3.2.4 If any other type of organization, the name and address of the owners.
12.3.2.5 The name, address and license number of the professional-in-charge and a notarized acknowledgment by the person so designated.
12.3.2.6 A current list of all establishment employees and/or contractors, which includes:
12.3.2.6.1 Full name;
12.3.2.6.2 Address; and
12.3.2.6.3 License number and expiration date (if a licensed massage therapist or certified massage technician).
12.3.2.7 A detailed floor plan of the proposed massage establishment that includes entrances and exits, length and width of establishment (in feet), total square feet and location of restrooms.
12.3.2.8 An attestation that the proposed location of the massage establishment is in compliance with all applicable laws and ordinances.
12.3.3 The Board shall not consider an application for licensure as a massage establishment until all items specified in subsection 12.3 are submitted to the Board's office. If an application is complete in terms of required documents, but the applicant has not responded to a Board request for further information, explanation or clarification within 60 days of the Board's request, the Board shall vote on the application as is.
12.3.4 Where an establishment license application has been denied, the Board shall not consider an establishment license for the same location until 6 months after denial of the initial application.
12.4 Professional-in-charge.
12.4.1 Each massage establishment shall be under the direction of a professional-in-charge, who shall provide complete and adequate supervision of that establishment.
12.4.2 At all times, the massage establishment's professional-in-charge shall be a Delaware licensed massage therapist or certified massage technician with a license in good standing.
12.4.3 A licensee may serve as professional-in-charge for only 1 establishment at any given time.
12.4.4 The professional-in-charge is responsible for ensuring that all licensees providing massage services at the massage establishment comply with the Board's Practice Act, Chapter 53 of Title 24 of the Delaware Code, and regulations.
12.4.5 The professional-in-charge is responsible for ensuring that all of the individuals providing massage services at the massage establishment are currently licensed, make timely application for license renewal, and meet the Board's continuing education requirements.
12.4.6 The professional-in-charge shall not allow, authorize or tolerate any activity or behavior prohibited by the laws of this State, including such laws proscribing acts of or promotion of prostitution, indecent exposure, lewdness or obscenity or any of the criminal code violations set forth in Section 14.0.
12.4.7 The massage establishment shall notify the Board of any change in the professional-in-charge within 10 business days of such change.
12.5 Hours of operation.
12.5.1 Massage services may be provided at a massage establishment only between the hours of 7:00 a.m. and 9:00 p.m., except that a massage commenced prior to 9:00 p.m. may be completed, and, subject to this qualification, no massage establishment shall be open and no massage services shall be provided between 9:00 p.m. and 7:00 a.m.
12.6 Operation requirements.
12.6.1 Sign. A massage establishment shall post a sign containing the establishment's name in a conspicuous location at the entrance.
12.6.2 Display of license. The original or copy of the massage establishment license, and the originals or copies of individual licenses of licensees providing massage services, shall be displayed in a conspicuous location in the establishment. A licensee who is working outside of a massage establishment shall have his/her license identification card in his/her possession and shall present it upon request of a client or Division agent.
12.6.3 Presence of licensee. A licensee who is either an employee or contractor of the massage establishment shall be on the premises of the establishment if a client is in a treatment room for the purpose of receiving a massage.
12.6.4 Dormitory prohibited. A massage establishment shall not be used as a dormitory nor shall any licensee permit any massage establishment to be so used.
12.6.5 Records. For each client receiving services, the massage establishment shall keep a client intake form which shall contain at least the following information: client's name and licensee's name; dated signatures; and client's medical history, including medications, health status, allergies and past surgeries. Pursuant to subsection 11.1.15, such forms and any other client records shall be retained on the premises of the massage establishment for a period of at least 3 years from the last date that services were provided.
12.6.6 Attire. All establishment employees and/or contractors, including licensees, shall wear clean, non-transparent outer garments, such as uniforms, scrubs or business casual wear. Such garments shall not expose their genitals, pubic areas, buttocks or breasts.
12.6.7 Doors: All internal and external doors shall be kept unlocked during operating hours except as follows:
12.6.7.1 Restroom doors may be locked.
12.6.7.2 External doors may be locked if the massage establishment is a business entity owned by 1 individual and has no more than 1 employee or contractor.
12.6.7.3 Internal doors may be locked to protect confidential patient or business information.
12.6.7.4 Where a massage establishment is located in a residence, the door between the establishment and the residence may be locked.
12.6.8 Windows: No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints or any other material that obstructs, blurs or unreasonably darkens the view into the premises.
12.7 Prohibition of sexual activity.
12.7.1 Sexual activity in a massage establishment is absolutely prohibited.
12.7.2 No massage establishment owner, professional-in-charge or licensee shall engage in, or permit any person or persons, to engage in, sexual activity in a massage establishment or to use that establishment to make arrangements to engage in sexual activity in any other place.
12.7.3 No licensed massage therapist or certified massage technician shall use the practitioner-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client.
12.8 Advertising.
12.8.1 The contents of any advertising shall include the name of the massage establishment, its address, its business phone number and establishment license number.
12.8.2 An advertisement shall not contain any representations that a massage establishment employee or contractor is willing to provide services which are illegal under the laws or regulations of the State of Delaware or the United States.
12.8.3 Photographs, drawings, written or verbal statements used in any advertising shall not explicitly communicate that services offered are for the purpose of sexual stimulation or gratification.
12.9 Inspections.
12.9.1 All massage establishments are subject to inspection by an agent of the Division, presenting appropriate identification, during business hours, with or without notice.
12.9.2 During the inspection, the agent of the Division shall not interrupt an in-progress treatment session.
12.9.3 The purpose of massage establishment inspections is to verify compliance with the standards of Section 12.0 and Chapter 53 of Title 24 of the Delaware Code and to verify that the establishment and all individuals providing massage services have valid licenses issued by the Board and that such licenses are conspicuously displayed on the premises.
12.9.4 An agent of the Division may inspect and copy records of the massage establishment; may inspect within reasonable limits and in a reasonable manner the premises, subject to subsection 12.9.2, and all pertinent equipment; and may inspect other things therein, including records, files, papers and facilities.
12.9.5 If a massage establishment is located within a licensee's residence, an out call location or is located within an office space shared with other businesses, an agent of the Division must have independent and sufficient legal justification before inspecting areas not to be used as a place of business for massage and bodywork.
12.9.6 The massage establishment shall allow, appear for and cooperate with an inspection.
12.10 License renewal. All massage establishment licenses shall be renewed biennially. Licenses shall expire on August 31 of each even numbered year. The failure of the Board to give, or the failure of the licensee to receive, notice of the expiration date of a license shall not prevent the license from becoming invalid after its expiration date. A massage establishment shall not provide massage services after a license has expired.
12.11 Request for waiver or variance.
12.11.1 The Board may grant a waiver of any of the requirements of Section 12.0 where there is a showing that complying with the requirement would result in extreme and undue hardship, as long as granting the waiver will not jeopardize the public health, safety or welfare.
12.11.2 The Board may vary the application of any requirement of Section 12.0 as long as the requestor demonstrates that the intent of the requirement is being met in an alternative manner to that described in the Section.
12.11.3 A waiver or variance is not transferable to another licensee or another location.
12.11.4 The Board may modify, suspend or revoke a waiver or variance.
