1. (a) A massage establishment shall employ or contract with only licensed massage therapists to perform massage therapy or other massage services. Documentation of the employment or contract relationship and verification that the licensed massage therapist is a United States citizen or a legal permanent resident with a valid work permit shall be maintained by the massage establishment and made available during an inspection or investigation. Required documentation for each person providing massage therapy or other massage services shall include:

   1. (1) a copy of the current massage therapist license;
   2. (2) proof of eligibility to work in the United States; and
   3. (3) if an employee, a completed I-9 form, or if under an independent contractor or contract labor agreement, a copy of the contract signed by both the owner or operator and the licensed massage therapist.
2. (b) No massage establishment shall be operated until the department has approved and licensed the establishment.
3. (c) A massage establishment must maintain separation from rooms used wholly or in part for residential or sleeping purposes by a solid wall or by a wall with a solid door which shall remain locked during business hours.
4. (d) A massage establishment must display the license in a prominent location in the establishment where it is available for inspection by the public.
5. (e) A license issued by the department is the property of the department and must be surrendered on demand.

6. (f) A massage establishment is subject to inspection to verify compliance with the Act and this chapter by authorized personnel of the department at any reasonable time.

   1. (1) Massage establishments shall be inspected periodically and as a result of a complaint. These inspections will be performed to determine compliance with the requirements of the Act and this chapter.
   2. (2) The department inspector will contact the establishment owner, manager, or their representative upon arrival at the establishment and before proceeding with the inspection.
   3. (3) The establishment owner, manager, or their representative shall cooperate with the inspector in the performance of the inspection.
   4. (4) Each establishment shall be inspected at least once every two years.
   5. (5) Upon completion of the inspection, the owner, manager, or their representative shall be advised in writing of the results. The inspection report will list violations identified during the inspection.

7. (g) A massage establishment may not:

   1. (1) employ or contract with an individual who is not a United States citizen or a legal permanent resident with a valid work permit;
   2. (2) employ a minor unless the minor's parent or legal guardian authorizes in writing the minor's employment by the establishment;
   3. (3) allow a nude or partially nude employee to provide massage therapy or other massage services to a customer;
   4. (4) allow any individual, including a client, student, license holder, or employee, to engage in sexual contact in the massage establishment;
   5. (5) allow any individual, including a student, license holder, or employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual; or
   6. (6) allow an unlicensed student to provide massage therapy or other massage services to the public beyond the department-approved internship.

8. (h) A massage establishment shall:

   1. (1) properly maintain and secure for each client the initial consultation documents, all session notes, and related billing records; and

   2. (2) maintain a current list of all establishment employees and/or contractors at all times which includes:

      1. (A) full name; and
      2. (B) license number and expiration date (if licensed as a massage therapist).

9. (i) For purposes of this section:

   1. (1) "Nude" means a person who is:

      1. (A) entirely unclothed; or
      2. (B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts or any portion of the genitals or buttocks.

   2. (2) "Sexual contact" includes:

      1. (A) any touching of any part of the genitalia or anus;
      2. (B) any touching of the breasts of a female client, unless the touching is breast massage that is specifically authorized by the client through the signed consultation document referenced in §117.91;
      3. (C) any offer or agreement to engage in any activity described in subparagraph (A) or (B);
      4. (D) kissing;
      5. (E) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotions of prostitution as described in Penal Code, Chapters 21, 22, and 43, or any offer or agreement to engage in such activities;
      6. (F) any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or
      7. (G) inappropriate sexual comments about or to a client, including sexual comments about a person's body.

Source Note:The provisions of this §117.82 adopted to be effective November 1, 2017, 42 TexReg 4991.