BILL NUMBER: AB 1822 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 28, 2010
AMENDED IN ASSEMBLY APRIL 13, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Swanson
FEBRUARY 11, 2010
An act to amend Sections 4600.5, 4601, 4601.3, 4601.4,
4603.1, 4605, 4606, and 4612 of, and to add Sections 4600.1 and
4601.35 to, the Business and Professions Code, relating to massage
therapy, and declaring the urgency thereof, to take effect
immediately. An act to amend Sections 4600.5 and 4612
of, and to add Section 4612.5 to, the Business and Professions Code,
relating to massage therapy.
LEGISLATIVE COUNSEL'S DIGEST
AB 1822, as amended, Swanson. Massage therapy.
Existing law, until January 1, 2016, provides for the voluntary
certification of massage practitioners and massage therapists by a
nonprofit Massage Therapy Organization, as defined and governed by a
board of directors, and imposes certain duties on that organization.
Existing law, until January 1, 2016, requires an applicant
for certification to be 18 years of age or older, to meet specified
educational criteria, to provide specified information to the
organization, to provide fingerprints for submission by the
organization to the Department of Justice for state and federal
criminal background checks, and to pay the fees required by the
organization. Existing law requires the Department of Justice to
conduct a criminal background check on every applicant and to provide
to the organization fitness determinations and certain other
information regarding an applicant. Existing law, until January 1,
2016, allows the organization to take certain disciplinary action
against certificate holders and requires the organization to take
certain action with regard to suspending or revoking a certificate if
the certificate holder has been arrested for, and charged with,
specified sex-related crimes. Existing law makes it an unfair
business practice for a person to state, advertise, or represent that
he or she is certified or licensed by a governmental agency as a
massage therapist or practitioner, or to make other false
representations, as specified. Existing law prohibits a
city, county, or city and county from enacting an ordinance that
requires a certificate holder to obtain any other license, permit, or
other authorization to engage in the practice of massage.
Notwithstanding that prohibition, existing law authorizes a city,
county, or city and county to adopt and enforce any local ordinance
governing zoning, business licensing, and reasonable health and
safety requirements for massage establishments or businesses.
Existing law also exempts from certain local
regulations sole proprietorships, as defined, and massage
establishments or businesses that only employ persons who are
certified.
This bill would , until January 1, 2016, require any
person who administers massage for compensation to be either
certified by the nonprofit Massage Therapy Organization or certified,
registered, or licensed by a city, county, or city and county. The
bill would also authorize a city, county, or city and county to
require any person who administers massage or who owns a massage
establishment or business to hold a business license or massage
establishment permit or both. The bill would add 2 members
to the board of directors of the organization
Massage Therapy Organization who would be selected by
specified peace officer associations. The bill would also
clarify that a city, county, or city and county is authorized to
require any person who administers massage for co
mpensation, or who owns a massage establishment or business, to also
hold a business license or massage establishment permit or both.
This bill, at the election of the governing body of a city,
county, or city and county by resolution and by concurrence of the
head of the local law enforcement agency in that jurisdiction, would
also transfer specified duties from the Massage Therapy Organization
to the local law enforcement agency. Upon that election, the bill
would require an applicant for certification by the organization to
provide his or her fingerprints to the local law enforcement agency
in the city, county, or city and county in which the applicant will
be administering massage for submission to the Department of Justice
for the requisite state and federal criminal background checks. Upon
that election, the bill would require the Department of Justice to
provide to the local law enforcement agency the fitness determination
regarding the applicant, and would require the local law enforcement
agency to conduct a local investigation related to the fitness of
the applicant. Upon that election, the bill would require the
Department of Justice and local law enforcement agencies to charge a
reasonable fee sufficient to cover those costs. The bill would
require the organization to establish a standardized form for
statewide use for purposes of the fingerprinting requirements.
Upon that election, this bill would require local law enforcement
agencies to approve or disapprove applicants for certification by the
organization based upon his or her fitness to practice massage
therapy, as specified, and would prohibit the organization from
providing certification upon disapproval. The bill would allow an
applicant to appeal a denial of certification, and would provide a
specified procedure for that appeal. The bill would make it an unfair
business practice for a person to state, advertise, or represent
that he or she is certified by a governmental entity or the Massage
Therapy Organization unless that representation is true. The bill
would make other conforming changes, including to those provisions
that exempted from certain local regulations sole proprietorships and
massage establishments or businesses that only employ persons who
are certified.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3 majority . Appropriation:
no. Fiscal committee: yes no .
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4600.5 of the
Business and Professions Code is amended to read:
4600.5. (a) A Massage Therapy Organization, as defined in
subdivision (e) of Section 4600, shall be created and shall have the
responsibilities and duties set forth in this chapter. The
organization may take any reasonable actions to carry out the
responsibilities and duties set forth in this chapter, including, but
not limited to, hiring staff and entering into contracts.
(b) (1) The organization shall be governed by a board of directors
made up of two representatives selected by each professional
society, association, or other entity, whose membership is comprised
of massage therapists and that chooses to participate in the
organization. To qualify, a professional society, association, or
other entity shall have a dues-paying membership in California of at
least 1,000 individuals for the last three years, and shall have
bylaws that require its members to comply with a code of ethics. The
board of directors shall also include each of the following persons:
(A) One member selected by each statewide association of private
postsecondary schools incorporated on or before January 1, 2010,
whose member schools have together had at least 1,000 graduates in
each of the previous three years from massage therapy programs
meeting the approval standards set forth in subdivision (a) of
Section 4600, except from those qualifying associations that choose
not to exercise this right of selection.
(B) One member selected by the League of California Cities, unless
that entity chooses not to exercise this right of selection.
(C) One member selected by the California State Association of
Counties, unless that entity chooses not to exercise this right of
selection.
(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.
(E) One member appointed by the California Community College
Chancellor's Office, unless that entity chooses not to exercise this
right of selection. The person appointed, if any, shall not be part
of any massage therapy certificate or degree program.
(F) One member selected by the California Police Chiefs
Association, unless that entity chooses not to exercise this right of
selection.
(G) One member selected by the California State Sheriffs'
Association, unless that entity chooses not to exercise this right of
selection.
The organization's bylaws shall establish a process for appointing
other professional directors as determined by the board.
(2) The initial board of directors shall establish the
organization, initiate the request for tax-exempt status from the
Internal Revenue Service, and solicit input from the massage
community concerning the operations of the organization. The initial
board of directors, in its discretion, may immediately undertake to
issue the certificates authorized by this chapter after adopting the
necessary bylaws or other rules, or may establish by adoption of
bylaws the permanent governing structure prior to issuing
certificates.
(c) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.
(d) The meetings of the organization shall be subject to the rules
of the Bagley-Keene Open Meetings Meeting
Act (Article 9 (commencing with Section 11120) of Chapter 1 of
Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 2. Section 4612 of the Business
and Professions Code is amended to read:
4612. (a) (1) The holder of a certificate issued pursuant to this
chapter shall have the right to practice massage, consistent with
this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section or
Section 4612.5 , to engage in that practice.
(2) Notwithstanding any other provision of law, a city, county, or
city and county shall not enact an ordinance that requires a
license, permit, or other authorization to practice massage by an
individual who is certified pursuant to this chapter and who is
practicing consistent with the qualifications established by his or
her certification , except as provided in Section 4612.5 .
No provision of any ordinance enacted by a city, county, or city and
county that is in effect before the effective date of this chapter,
and that requires a license, permit, or other authorization to
practice massage, may be enforced against an individual who is
certified pursuant to this chapter , except as provided in
Section 4612.5 .
(3) Except as provided in subdivision (b), nothing in this section
shall be interpreted to prevent a city, county, or city and county
from adopting or enforcing any local ordinance governing zoning,
business licensing, and reasonable health and safety requirements for
massage establishments or businesses. Subdivision (b) shall not
apply to any massage establishment or business that employs or uses
persons to provide massage services who are not certified pursuant to
this chapter.
(b) (1) This subdivision shall apply only to massage
establishments or businesses that are sole proprietorships, where the
sole proprietor is certified pursuant to this chapter, and to
massage establishments or businesses that employ or use only persons
certified pursuant to this chapter to provide massage services. For
purposes of this subdivision, a sole proprietorship is a business
where the owner is the only person employed by that business to
provide massage services.
(2) (A) Any massage establishment or business described in
paragraph (1) shall maintain on its premises evidence for review by
local authorities that demonstrates that all persons providing
massage services are certified.
(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (1) to file copies or
provide other evidence of the certificates held by the persons who
are providing massage services at the business or from requiring
compliance with Section 4612.5 .
(3) A city, county, or city and county may charge a massage
business or establishment a business licensing fee sufficient to
cover the costs of the business licensing activities established by a
local ordinance described in this section.
(4) Nothing in this section shall prohibit a city, county, or city
and county from adopting land use and zoning requirements applicable
to massage establishments or businesses, provided that these
requirements shall be no different than the requirements that are
uniformly applied to other professional or personal services
businesses.
(5) Local building code or physical facility requirements
applicable to massage establishments or businesses shall not require
additional restroom, shower, or other facilities that are not
uniformly applicable to other professional or personal service
businesses, nor shall building or facility requirements be adopted
that (A) require unlocked doors when there is no staff available to
assure security for clients and massage staff who are behind closed
doors, or (B) require windows that provide a view into massage rooms
that interfere with the privacy of clients of the massage business.
(6) A city, county, or city and county may adopt reasonable health
and safety requirements with respect to massage establishments or
businesses, including, but not limited to, requirements for
cleanliness of massage rooms, towels and linens, and reasonable
attire and personal hygiene requirements for persons providing
massage services, provided that nothing in this paragraph shall be
interpreted to authorize adoption of local ordinances that impose
additional qualifications, such as medical examinations, background
checks, or other criteria, upon any person certified pursuant to this
chapter.
(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:
(A) Requiring an applicant for a business license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information.
(B) Making reasonable investigations into the information so
provided.
(C) Denying or restricting a business license if the applicant has
provided materially false information.
(c) An owner or operator of a massage business or establishment
subject to subdivision (b) shall be responsible for the conduct of
all employees or independent contractors working on the premises of
the business. Nothing in this section shall preclude a local
ordinance from authorizing suspension, revocation, or other
restriction of a license or permit issued to a massage establishment
or business if violations of this chapter, or of the local ordinance,
occur on the business premises.
(d) Nothing in this section shall preclude a city, county, or city
and county from adopting a local ordinance that is applicable to
massage businesses or establishments described in paragraph (1) of
subdivision (b) and that does either of the following:
(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health and
safety requirements.
(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management, or
convey the business to another person.
SEC. 3. Section 4612.5 is added to the
Business and Professions Code , to read:
4612.5. Notwithstanding any other provision of this chapter, any
city, county, or city and county may require any person who
administers massage for compensation, or who owns a massage
establishment or business, to also hold a business license or a
massage establishment permit or both.
SECTION 1. It is the intent of the Legislature
to clarify existing law with regard to the authority of a city,
county, or city and county to enforce local regulations in connection
with massage establishments and businesses. It is further the intent
of the Legislature to provide greater authority to local law
enforcement agencies in connection with the certification of persons
who administer massage for compensation.
SEC. 2. Section 4600.1 is added to the Business
and Professions Code, to read:
4600.1. (a) Any person who administers massage for compensation
shall hold at least one of the following:
(1) A certificate issued pursuant to this chapter.
(2) (A) A certificate, registration, or license to administer
massage issued by the city, county, or city and county in which the
person will be administering massage.
(B) Notwithstanding subparagraph (A), any person who administers
massage for compensation and who practices in a city, county, or city
and county that does not administer a certification, registration,
or licensing scheme pursuant to subparagraph (A) shall be required,
at a minimum, to be certified by the organization pursuant to
paragraph (1).
(b) Notwithstanding subdivision (a) or any other provision of this
chapter, any city, county, or city and county may require any person
who administers massage for compensation, or who owns a massage
establishment or business, to also hold a business license or a
massage establishment permit or both.
(c) Local law enforcement may enforce any local ordinance that
requires a certificate, registration, license, or permit as provided
in this section.
(d) It shall be unlawful for any person who administers massage
for compensation to fail to comply with the requirements specified in
subdivision (a), or to fail to hold a business license or a massage
establishment permit in a jurisdiction that requires an additional
license or permit pursuant to subdivision (b).
SEC. 3. Section 4600.5 of the Business and
Professions Code is amended to read:
4600.5. (a) A Massage Therapy Organization, as defined in
subdivision (e) of Section 4600, shall be created and shall have the
responsibilities and duties set forth in this chapter, subject to the
limitations imposed under Section 4601.35, if applicable. The
organization may take any reasonable actions to carry out the
responsibilities and duties set forth in this chapter, including, but
not limited to, hiring staff and entering into contracts.
(b) (1) The organization shall be governed by a board of directors
made up of two representatives selected by each professional
society, association, or other entity, whose membership is comprised
of massage therapists and that chooses to participate in the
organization. To qualify, a professional society, association, or
other entity shall have a dues-paying membership in California of at
least 1,000 individuals for the last three years, and shall have
bylaws that require its members to comply with a code of ethics. The
board of directors shall also include each of the following persons:
(A) One member selected by each statewide association of private
postsecondary schools incorporated on or before January 1, 2010,
whose member schools have together had at least 1,000 graduates in
each of the previous three years from massage therapy programs
meeting the approval standards set forth in subdivision (a) of
Section 4600, except from those qualifying associations that choose
not to exercise this right of selection.
(B) One member selected by the League of California Cities, unless
that entity chooses not to exercise this right of selection.
(C) One member selected by the California State Association of
Counties, unless that entity chooses not to exercise this right of
selection.
(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.
(E) One member appointed by the California Community College
Chancellor's Office, unless that entity chooses not to exercise this
right of selection. The person appointed, if any, shall not be part
of any massage therapy certificate or degree program.
(F) One member selected by the California Police Chiefs
Association, unless that entity chooses not to exercise this right of
selection.
(G) One member selected by the California State Sheriffs
Association, unless that entity chooses not to exercise this right of
selection.
The organization's bylaws shall establish a process for appointing
other professional directors as determined by the board.
(2) The initial board of directors shall establish the
organization, initiate the request for tax-exempt status from the
Internal Revenue Service, and solicit input from the massage
community concerning the operations of the organization. The initial
board of directors, in its discretion, may immediately undertake to
issue the certificates authorized by this chapter after adopting the
necessary bylaws or other rules, or may establish by adoption of
bylaws the permanent governing structure prior to issuing
certificates.
(c) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.
(d) The meetings of the organization shall be subject to the rules
of the Bagley-Keene Open Meeting Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code).
SEC. 4. Section 4601 of the Business and
Professions Code is amended to read:
4601. (a) The organization shall issue a certificate under this
chapter to an applicant who satisfies the requirements of this
chapter, subject to the limitations imposed under Section 4601.35, if
applicable.
(b) (1) In order to obtain certification as a massage
practitioner, an applicant shall submit a written application and
provide the organization with satisfactory evidence that he or she
meets all of the following requirements:
(A) The applicant is 18 years of age or older.
(B) The applicant has successfully completed, at a single approved
school, curricula in massage and related subjects totaling a minimum
of 250 hours that incorporates appropriate school assessment of
student knowledge and skills. Included in the hours shall be
instruction addressing anatomy and physiology, contraindications,
health and hygiene, and business and ethics, with at least 100 hours
of the required minimum 250 hours devoted to these curriculum areas.
(C) All fees required by the organization have been paid.
(2) New certificates shall not be issued pursuant to this
subdivision after December 31, 2015.
(c) In order to obtain certification as a massage therapist, an
applicant shall submit a written application and provide the
organization with satisfactory evidence that he or she meets all of
the following requirements:
(1) The applicant is 18 years of age or older.
(2) The applicant satisfies at least one of the following
requirements:
(A) He or she has successfully completed the curricula in massage
and related subjects totaling a minimum of 500 hours. Of this 500
hours, a minimum of 250 hours shall be from approved schools. The
remaining 250 hours required may be secured either from approved or
registered schools, or from continuing education providers approved
by, or registered with, the organization or the Department of
Consumer Affairs.
(B) The applicant has passed a massage and bodywork competency
assessment examination that meets generally recognized psychometric
principles and standards, and that is approved by the board. The
successful completion of this examination may have been accomplished
before the date the organization is authorized by this chapter to
begin issuing certificates.
(3) All fees required by the organization have been paid.
(d) The organization shall issue a certificate to an applicant who
meets the other qualifications of this chapter and holds a current
and valid registration, certification, or license from any other
state whose licensure requirements meet or exceed those defined
within this chapter. The organization shall have discretion to give
credit for comparable academic work completed by an applicant in a
program outside of California.
(e) An applicant applying for a massage therapist or massage
practitioner certificate shall file with the organization a written
application provided by the organization, showing to the satisfaction
of the organization that he or she meets all of the requirements of
this chapter.
(f) Any certification issued under this chapter shall be subject
to renewal every two years in a manner prescribed by the
organization, and shall expire unless renewed in that manner. The
organization may provide for the late renewal of a certificate.
(g) (1) The organization shall have the responsibility to
determine that the school or schools from which an applicant has
obtained the education required by this chapter meet the requirements
of this chapter. If the organization has any reason to question
whether or not the applicant received the education that is required
by this chapter from the school or schools that the applicant is
claiming, the organization shall investigate the facts to determine
that the applicant received the required education prior to issuing a
certificate.
(2) For purposes of paragraph (1) and any other provision of this
chapter for which the organization is authorized to receive factual
information as a condition of taking any action, the organization
shall have the authority to conduct oral interviews of the applicant
and others or to make any investigation deemed necessary to establish
that the information received is accurate and satisfies any criteria
established by this chapter.
SEC. 5. Section 4601.3 of the Business and
Professions Code is amended to read:
4601.3. (a) Prior to issuing a certificate to the applicant, the
organization shall require the applicant to submit fingerprint images
in a form consistent with the requirements of this section. The
organization shall submit the fingerprint images and related
information to the Department of Justice for the purpose of obtaining
information as to the existence and nature of a record of state and
federal level convictions and of state and federal level arrests for
which the Department of Justice establishes that the applicant was
released on bail or on his or her own recognizance pending trial.
Requests for federal level criminal offender record information
received by the Department of Justice pursuant to this section shall
be forwarded to the Federal Bureau of Investigation by the Department
of Justice. The Department of Justice shall review the information
returned from the Federal Bureau of Investigation, and shall compile
and disseminate a fitness determination regarding the applicant to
the organization.
(b) The Department of Justice shall provide information to the
organization pursuant to Section 11105 of the Penal Code.
(c) The Department of Justice and the organization shall charge a
fee sufficient to cover the cost of processing the request for state
and federal level criminal offender record information.
(d) The organization shall request subsequent arrest notification
service from the Department of Justice, as provided under Section
11105.2 of the Penal Code, for all applicants for certification for
whom fingerprint images and related information are submitted to
conduct a search for state and federal level criminal offender record
information.
(e) If the governing body of a city, county, or city and county
elects, by resolution and with the concurrence of the head of the
local law enforcement agency in that jurisdiction, to be subject to
the requirements of Section 4601.35, this section shall not apply
with respect to the certification of applicants in that jurisdiction
and the organization shall instead comply with the process set forth
in Section 4601.35.
SEC. 6. Section 4601.35 is added to the
Business and Professions Code, to read:
4601.35. (a) (1) Notwithstanding Section 4601.3, if the governing
body of a city, county, or city and county elects, by resolution and
with the concurrence of the head of the local law enforcement agency
in that jurisdiction, to be subject to the requirements of this
section, this section shall govern the certification process
established under this chapter for applicants in that jurisdiction.
(2) Prior to issuing a certificate to the applicant, the
organization shall require the applicant to submit to the local law
enforcement agency in the jurisdiction in which the applicant will be
administering massage, fingerprint images in a form consistent with
the requirements of this section. The local law enforcement agency
shall submit the fingerprint images and related information to the
Department of Justice for the purpose of obtaining information as to
the existence and nature of a record of state and federal level
convictions and of state and federal level arrests for which the
Department of Justice establishes that the applicant was released on
bail or on his or her own recognizance pending trial. Requests for
federal level criminal offender record information received by the
Department of Justice pursuant to this section shall be forwarded to
the Federal Bureau of Investigation by the Department of Justice. The
Department of Justice shall review the information returned from the
Federal Bureau of Investigation, and shall compile and disseminate a
fitness determination regarding the applicant to the local law
enforcement agency.
(b) The Department of Justice shall provide information to the
local law enforcement agency pursuant to Section 11105 of the Penal
Code.
(c) The Department of Justice and the local law enforcement agency
shall charge a reasonable fee sufficient to cover the cost of
processing the request for state and federal level criminal offender
record information and the cost of the local investigation conducted
under subdivision (e).
(d) The local law enforcement agency shall request
subsequent arrest notification service from the Department of
Justice, as provided under Section 11105.2 of the Penal Code, for all
applicants for certification for whom fingerprint images and related
information are submitted to conduct a search for state and federal
level criminal offender record information.
(e) In addition to the state and federal background checks
conducted by the Department of Justice, the local law enforcement
agency shall conduct a local investigation by compiling local arrest
records.
(f) (1) After conducting the background checks and investigation
under this section, the local law enforcement agency shall assess the
fitness of the applicant and make a determination as to whether a
certificate shall be issued to the applicant, subject also to
satisfactory qualification under Section 4601. If the local law
enforcement agency approves the applicant for certification, the
organization shall issue a certificate to the applicant, unless the
organization determines there are other grounds for disapproval, as
described in Section 4603. If the local law enforcement agency
disapproves the applicant for certification, the organization shall
not issue a certificate to that applicant, and the organization shall
ensure compliance with the procedures specified in Section 4603.1.
An applicant denied certification pursuant to this section may appeal
that denial pursuant to the procedures specified in Section 4603.1.
(2) For purposes of paragraph (1), in assessing the fitness of the
applicant, the local law enforcement agency shall only make a
determination that the applicant is unfit if he or she has been
convicted of a violation of Section 266h, 266i, 315, 316, or 318 of,
or subdivision (a) or (b) of Section 647 of, the Penal Code, or
convicted of having committed a commercial sex act or human
trafficking. The local law enforcement agency may not make that
determination of fitness based upon any other factor.
(g) As soon as practicable after enactment of the act adding this
subdivision, the organization shall establish a standardized form for
statewide use that describes the fingerprinting requirements that
may be imposed under this section and what information shall be
submitted by an applicant to the local law enforcement agency, which
shall include, at a minimum, name, date of birth, social security
number, driver's license number, residence history, employment
history, criminal arrest, conviction, or abatement history, two
passport quality photographs, his or her live scan fingerprints, the
specified local law enforcement fee, and any other information needed
by the Department of Justice to conduct criminal background checks.
No local law enforcement agency may require that an applicant use any
other form when submitting his or her fingerprints pursuant to
paragraph (2) of subdivision (a), unless the organization fails to
comply with this subdivision.
(h) This section applies only to the certification process
established under this chapter and as set forth in paragraph (1) of
subdivision (a). This section does not affect any procedures
established by a city, county, or city and county pursuant to
subparagraph (A) of paragraph (2) of subdivision (a) of or
subdivision (b) of Section 4600.1.
SEC. 7. Section 4601.4 of the Business and
Professions Code is amended to read:
4601.4. Organization directors, employees, or volunteer
individuals may undergo a background investigation process pursuant
to subdivision (p) of Section 11105 of the Penal Code, at
organizational expense.
SEC. 8. Section 4603.1 of the Business and
Professions Code is amended to read:
4603.1. (a) No certificate holder or certificate applicant may be
disciplined or denied a certificate pursuant to Section 4601.3,
4601.35, if applicable, or 4603 except according to procedures
satisfying the requirements of this section. A denial or discipline
not in accord with this section or subdivision (c) of Section 4602
shall be void and without effect.
(b) Any certificate applicant denial or certificate holder
discipline shall be done in good faith and in a fair and reasonable
manner. Any procedure that conforms to the requirements of
subdivision (c) is fair and reasonable, but a court may also find
other procedures to be fair and reasonable when the full
circumstances of the certificate denial or certificate holder
discipline are considered.
(c) A procedure is fair and reasonable when the procedures in
subdivision (c) of Section 4602 are followed, or if all of the
following apply:
(1) The provisions of the procedure have been set forth in the
articles or bylaws and copies of those provisions are sent annually
to all certificate holders.
(2) It provides the giving of 15 days prior notice of the
certificate denial or certificate holder discipline and the reasons
therefor.
(3) It provides an opportunity for the certificate applicant or
certificate holder to be heard, orally or in writing, not less than
five days before the effective date of the certificate denial or
certificate holder discipline by a person or body authorized to
decide that the proposed certificate denial or certificate holder
discipline not take place.
(d) Any notice required under this section may be given by any
method reasonably calculated to provide actual notice. Any notice
given by mail must be given by first-class or certified mail sent to
the last address of the certificate applicant or certificate holder
shown on the organization's records.
(e) Any action challenging a certificate denial or certificate
holder discipline, including any claim alleging defective notice,
shall be commenced within one year after the date of the certificate
denial or certificate holder discipline. If the action is successful,
the court may order any relief, including reinstatement, that it
finds equitable under the circumstances.
(f) This section governs only the procedures for certificate
denial or certificate holder discipline and not the substantive
grounds therefor. A certificate denial or certificate holder
discipline based upon substantive grounds that violates contractual
or other rights of the member or is otherwise unlawful is not made
valid by compliance with this section.
(g) A certificate applicant or certificate holder who is denied or
disciplined shall be liable for any charges incurred, services or
benefits actually rendered, dues, assessments, or fees incurred
before the certificate denial or certificate holder discipline or
arising from contract or otherwise.
SEC. 9. Section 4605 of the Business and
Professions Code is amended to read:
4605. (a) It is an unfair business practice for any person to
state or advertise or put out any sign or card or other device, or to
represent to the public through any print or electronic media, that
he or she is certified, registered, or licensed by a governmental
entity as a massage therapist or massage practitioner unless that
representation is true pursuant to paragraph (2) of subdivision (a)
of Section 4600.1.
(b) It is an unfair business practice for any person to state or
advertise or put out any sign or card or other device, or to
represent to the public through any print or electronic media, that
he or she is certified by the organization as a massage therapist or
massage practitioner unless that representation is true pursuant to
paragraph (1) of subdivision (a) of Section 4600.1.
SEC. 10. Section 4606 of the Business and
Professions Code is amended to read:
4606. It is an unfair business practice for any person to hold
oneself out or use the title of "certified massage therapist" or
"certified massage practitioner" or any other term, such as
"licensed," "registered," or "CMT," that implies or suggests that the
person is certified as a massage therapist or practitioner without
meeting the requirements of Section 4600.1, 4601, or 4604.
SEC. 11. Section 4612 of the Business and
Professions Code is amended to read:
4612. (a) (1) The holder of a certificate issued pursuant to this
chapter shall have the right to practice massage, consistent with
this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section or
subdivision (b) of Section 4600.1, to engage in that practice.
(2) Notwithstanding any other provision of law, a city, county, or
city and county shall not enact an ordinance that requires a
license, permit, or other authorization to practice massage by an
individual who is certified pursuant to this chapter and who is
practicing consistent with the qualifications established by his or
her certification, except as provided in subdivision (b) of Section
4600.1. No provision of any ordinance enacted by a city, county, or
city and county that is in effect before the effective date of this
chapter, and that requires a license, permit, or other authorization
to practice massage, may be enforced against an individual who is
certified pursuant to this chapter, except as provided in
subdivisions (b) and (c) of Section 4600.1.
(3) Nothing in this section shall be interpreted to prevent a
city, county, or city and county from adopting or enforcing any local
ordinance governing zoning, business licensing, and reasonable
health and safety requirements for massage establishments or
businesses.
(b) (1) This subdivision shall apply to every massage
establishment or business that provides massage services.
(2) (A) Every massage establishment or business shall maintain on
its premises evidence for review by local authorities that
demonstrates that all persons providing massage services are
certified or licensed.
(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a massage establishment or business to file copies or
provide other evidence of the certificates or licenses held by the
persons who are providing massage services at the massage
establishment or business.
(3) A city, county, or city and county may charge a massage
establishment or business a business licensing fee sufficient to
cover the costs of the business licensing activities established by a
local ordinance described in this section.
(4) Nothing in this section shall prohibit a city, county, or city
and county from adopting land use and zoning requirements applicable
to massage establishments or businesses.
(5) A city, county, or city and county may adopt reasonable health
and safety requirements with respect to massage establishments or
businesses, including, but not limited to, requirements for
cleanliness of massage rooms, towels and linens, and reasonable
attire and personal hygiene requirements for persons providing
massage services, provided that nothing in this paragraph shall be
interpreted to authorize adoption of local ordinances that impose
additional qualifications, such as medical examinations or other
criteria upon any person certified pursuant to this chapter.
(6) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:
(A) Requiring an applicant for a business license to operate a
massage establishment or business to fill out an application that
requests the applicant to provide relevant information.
(B) Making reasonable investigations into the information so
provided.
(C) Denying or restricting a business license if the applicant has
provided materially false information.
(c) An owner or operator of a massage establishment or business
shall be responsible for the conduct of all employees or independent
contractors working on the premises of the business. Nothing in this
section shall preclude a local ordinance from authorizing suspension,
revocation, or other restriction of a license or permit issued to a
massage establishment or business if violations of this chapter, or
of the local ordinance, occur on the business premises.
(d) Nothing in this section shall preclude a city, county, or
city and county from adopting a local ordinance that is applicable to
massage establishments or businesses and that does either of the
following:
(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health and
safety requirements.
(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management, or
convey the establishment or business to another person.
SEC. 12. This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
In order to ensure the public health and safety with regard to the
practice of massage, it is necessary that this act take effect
immediately.