Ā§452-23 Ā Advertising.Ā  (a)Ā  It is
a misdemeanor for any person, including a person who is exempt by section
452-21 from this chapter, to advertise with or without any limiting
qualifications as a massage therapist unless the person holds a valid license under
this chapter.Ā  Further, it shall be a violation of this chapter for any person
to advertise:



(1)Ā  As a massage therapist or a massage therapy
establishment unless the person holds a valid license under this chapter in the
classification so advertised;



(2)Ā  By combining advertising for a licensed massage
therapy service with escort or dating services;



(3)Ā  As performing massage in a form in which the
person has not received training, or of a type which is not licensed or
otherwise recognized by statute or administrative rule;



(4)Ā  By using in any mass distribution, print
advertisements such as newspaper advertisements, or telephone directory
listings, pictures depicting the human form other than hands, wrists, and
forearms;



(5)Ā  By using any term other than therapeutic massage
or massage therapy to refer to the service; or



(6)Ā  By referring to any personal physical qualities
of the practitioner.



"Advertise" as used in this section
includes, but is not limited to, the issuance of any card, sign, or device to
any person; the causing, permitting, or allowing of any sign or marking on or
in any building, vehicle or structure; advertising in any newspaper or
magazine; any listing or advertising in any directory under a classification or
heading that includes the word "massage therapist" or "massage
therapy establishment"; or commercials broadcast by airwave transmission.



(b)Ā  A massage therapist or massage therapy
establishment may advertise in print or broadcast medium, as defined in
subsection (a) only if the massage therapist or massage therapy establishment
includes in the advertisement or listing the massage therapist's or massage
therapy establishment's applicable and current license number, and provides
written evidence of the number's validity to the publisher or producer of the
advertising medium.Ā  The publisher or producer of a print or broadcast
advertising medium shall refuse to publish or broadcast an advertisement or
listing for a massage therapist or massage therapy establishment that does not
comply with the provisions of this subsection.Ā  A publisher or producer who
obtains a signed statement from the massage therapist or massage therapy
establishment which states that the massage therapist or massage therapy
establishment has read the text of the advertisement or listing, has an
applicable and current massage therapist or massage therapy establishment
license for the services advertised, has included all applicable and current
license numbers in the advertisement or listing, and is aware of civil and
criminal penalties for advertising as a massage therapist or massage therapy
establishment without a valid license, shall be entitled to a rebuttable
presumption of compliance with this subsection.



(c)Ā  Upon entry of either a final order of the
board of massage therapy pursuant to chapter 91, or a judgment by a court of
competent jurisdiction, finding that a massage therapist or massage therapy
establishment has advertised in violation of section 452-2 or this section, the
public utility furnishing telephone service to the massage therapist or massage
therapy establishment shall disconnect the telephone number contained in the
advertisement or listing.



(d)Ā  A publisher or producer of a print or
broadcast advertising medium shall not be liable in any suit, action, or claim
arising from refusal to list or accept advertisements pursuant to subsection
(b).Ā  Good faith compliance by a public utility with subsection (c) is a
complete defense to any civil or criminal action brought against it arising
from the termination of telephone service. [L 1985, c 95, Ā§5; am L 1986, c 310,
Ā§4; am L 1990, c 205, Ā§6; am L 1994, c 5, Ā§5]



 



Attorney General Opinions



 



Ā  Paragraphs (4), (5), and (6) of subsection (a) were overly
broad and infringed upon commercial speech rights afforded by First Amendment
of U.S. Constitution.Ā  Att. Gen. Op. 98-2.