55889 This rulemaking establishes a new fine schedule for massage establishments and health spa facilities to correspond with the Massage Establishment and Health Spa Facility Regulations published on October 9, 2009 at 56 DCR 7975.
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DEPARTMENT OF HEALTH
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NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Director of the Department of Health, pursuant to the authority set forth in section 104 of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985 (“the Act”), effective October 5, 1985, (D.C. Law 6-42; D.C. Official Code § 2-1801.04) (2007 Repl.), section 4902 (b) of the Department of Health Functions Clarification Act of 2001 (Act), effective October 3, 2001 (D.C. Law 14-28; D.C. Official Code § 7-731(b)) (2008 Repl.), and Mayor’s Order 2004-46, dated March 22, 2004, hereby gives notice of his intent to amend Title 16, Chapter 36 of the District of Columbia Municipal Regulations (DCMR) to repeal the current massage establishment infractions in section 3625 and replace it with a new section 3625 schedule of fines for massage establishment and health spa facilities to correspond with the new Massage Establishment and Health Spa Facility Regulations which were published in the D.C. Register on October 9, 2009 at 56 DCR 7975.
This emergency rulemaking action is necessary to immediately protect the public health, safety, and welfare of hundreds of District residents and visitors by establishing a fine schedule for violations of health and safety regulations at massage and health spa facilities so that operators will immediately comply with current industry health and safety standards, and so that illegal operations may be readily identified.
This emergency rulemaking was adopted by the Director on November 10, 2009, and will become effective 30 days from the date this notice is published in the D.C. Register. The emergency rulemaking will expire within 120 days from the date of the adoption or upon publication of a Notice of Final Rulemaking in the D.C. Register, or whichever occurs first.
The Director also gives notice of his intent to take final rulemaking action to adopt the proposed rules in not less than thirty (30) days from the date of publication of this notice in the D.C. Register.
Chapter 36 of Title 16 DCMR (Civil Infractions Schedule of Fines) is amended to read as follows:
3625 MASSAGE ESTABLISHMENT AND HEALTH SPA FACILITY INFRACTIONS
3625.1 Violation of the following provisions shall be a Class 1 infraction:
(a) 25 DCMR D 1306.2 (1) – Operating a massage establishment or health spa facility without a required license in violation of 25 DCMR D 1200.1;
(b) 25 DCMR D 1200.1 – Operating a massage establishment or health spa facility with a suspended license;
(c) 25 DCMR D 1306.2 (3) – Operating a massage establishment or health spa facility without a valid Certificate of Occupancy;
(d) 25 DCMR D 1306.2 (4) – Operating a massage establishment or health spa facility for an illegal clandestine drug laboratory or related activities;
(e) 25 DCMR D 1306.2 (5) – Operating a massage establishment or health spa facility for prostitution;
(f) 25 DCMR D 1306.2 (6) – Failure of licensee to employ a massage therapist who is licensed in the District in violation of 25 DCMR D 200.1
(g) 25 DCMR D 1306.2 (7) – Failure of licensee to employ a manager of a massage establishment or health spa facility who is on the premises during all hours of operation in violation of 25 DCMR D 200.2;
(h) 25 DCMR D 1306.2 (8) – Failure of licensee to employ a massage therapist who is on the premises during all hours of operation in violation of 25 DCMR D 200.3;
(i) 25 DCMR D 1306.2 (9) – Operating a massage establishment or health spa facility with six (6) or more critical violations that cannot be corrected on site during the course of the inspection;
(j) 25 DCMR D 1306.2 (10) – Failing to allow access to DOH representatives during the massage establishment or health spa facility’s hours of operation and other reasonable times as determined by DOH in violation of 25 DCMR D 1300.4;
(k) 25 DCMR D 1306.2 (11) – Hindering, obstructing, or in any way interfering with any inspector or authorized DOH personnel in the performance of his or her duty; or
(l) 25 DCMR D 1306.3 – Operating in violation of any provision specified in 25 DCMR D 1700, 1701, or 1702.
3635.2 Reserved
3625.3 Violation of the following provisions shall be a Class 3 infraction:
(a) 25 DCMR D 1306.2 (2) – Operating a massage establishment or health spa facility with an expired license in violation of 25 DCMR D 1200.1;
(b) 25 DCMR D 1306.1(a) – Operating with extensive fire damage that affects the massage establishment or health spa facility’s ability to comply with these regulations;
(c) 25 DCMR D 1306.1(b) – Operating with serious flood damage that affects the massage establishment or health spa facility’s ability to comply with these regulations;
(d) 25 DCMR D 1306.1(c) – Operating with loss of electrical power to critical systems, including but not limited to lighting, heating, cooling, or ventilation controls for a period of two (2) or more hours;
(e) 25 DCMR D 1306.1(d) – Operating with no hot water, or an unplanned water outage, or the water supply is cut off in its entirety for a period of one (1) or more hours in violation of 25 DCMR D 605, 606, and 702.1;
(f) 25 DCMR D 1306.1(e) – Operating with inadequate water pressure to any part of the massage establishment or health spa facility;
(g) 25 DCMR D 1306.1(f) – Operating with insufficient water capacity to any part of the massage establishment or health spa facility;
(h) 25 DCMR D 1306.1(g) – The massage establishment or health spa facility’s use of a water supply that is not approved by the Department;
(i) 25 DCMR D 1306.1(h) – Operating with a defect or condition that exists in the plumbing system supplying potable water that may result in the contamination of the water;
(j) 25 DCMR D 1306.1(i) – Operating with a sewage backup or sewage that is not disposed of in an approved and sanitary manner;
(k) 25 DCMR D 1306.1(j) – Operating with a cross-connection between the potable water and non-potable water distribution systems, including but not limited to landscape irrigation, air conditioning, heating, and/ or fire suppression system.
(l) 25 DCMR D 1306.1(k) – Operating with a back siphonage event;
(m) 25 DCMR D 1306.1(l) – Operating with toilet and/or handwashing facilities that are not properly installed;
(n) 25 DCMR D 1306.1(m) – Operating with the presence of toxic or noxious gases, vapors, fumes, mists or particulates in concentrations immediately dangerous to life or health, or in concentrations sufficient to cause an environmental disease or public nuisance;
(o) 25 DCMR D 1306.1(n) – Operating with the presence of any unapproved pesticide residues in the interior building areas of a massage establishment or health spa facility, in food storage or service areas contained within the massage establishment or health spa facility, or in the presence of any food in the establishment; or in the presence of excessive restricted-use pesticide in any outdoor area of a massage establishment; or any evidence of the indiscriminate use of a pesticide or herbicide which may be injurious to the health of humans;
(p) 25 DCMR D 1306.1(o) – Operating with the presence of any disease-causing organism in water exposed to the atmosphere which has caused or is likely to cause an environmental disease in the massage establishment or health spa facility;
(q) 25 DCMR D 1306.1(p) – Operating with equipment that by condition, design, construction or use poses an immediate risk of entrapment, fall, puncture, pinch, crush, trip, or other cause of injury;
(r) 25 DCMR D 1306.1(q) – Operating with environmental surfaces, including but not limited to equipment, furnishings, beds, mattresses, mats, massage tables, pillows, linens, robes, garments, chairs or other items within any room of a massage establishment or health spa facility that are stained with blood or bodily fluids, or soiled; or infested with vermin; or are in an otherwise unsanitary condition;
(s) 25 DCMR D 1306.1(r) – Operating with any unmitigated biohazardous event that simultaneously involves more than one (1) customer, massage therapy room or a public area exceeding two hundred square feet (200 sq. ft.);
(t) 25 DCMR D 1306.1(s) – Operating with gross insanitary occurrence or condition that may endanger public health including but not limited to an infestation of vermin;
(u) 25 DCMR D 1306.1(t) – Operating with incorrect hot water temperatures that cannot be corrected during the course of the inspection in violation of section 702.1;
(v) 25 DCMR D 1306.1(u) – Operating with the presence and use of any used bedding which has not been sterilized or disinfected in violation of D.C. Official Code § 8-502(4), including the presence or use of any used bedding discarded and then recovered from a dumpster, trash room, alleyway, landfill, dump, junkyard, or hospital; or
(w) 25 DCMR D 1306.1(v) – Failing to minimize the presence of insects, rodents, or other pests on the premises in violation of section 821 (a) through (d).
3625.4 Violation of any provision of the District of Columbia Massage Establishment and Health Spa Facility Regulations (25 DCMR, Subtitle D) which is not cited elsewhere in this section shall be a Class 4 infraction.
All persons wishing to comment on the proposed rules should submit written comments no later than thirty (30) days after publication of this notice in the D.C. Register, to the Department of Health, Office of the General Counsel, 825 North Capitol Street, N.E., Room 4122, Washington, D.C. 20002. Copies of the proposed rules may be obtained, at cost, at the same address during the hours of 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays.
