BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1822
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          Date of Hearing:   April 20, 2010

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                   AB 1822 (Swanson) - As Amended:  April 13, 2010
           
          SUBJECT  :   Massage therapy.

           SUMMARY  :   Authorizes a city, county, or city and county to  
          require a certificate, registration, or license to administer  
          massage, as specified.  Specifically,  this bill  :  

          1)Requires a person administering massage for compensation to  
            hold at least one of the following:

            a)   A certificate from the Massage Therapy Organization  
                   (MTO); or,

        b)   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.

          2)Authorizes a city, county, or city and county to require any  
            person who administers massage for compensation, or who owns a  
            massage establishment or business, to also hold a business  
            license, a massage establishment permit, or both.

          3)Authorizes local law enforcement to enforce any local  
            ordinance that requires a certificate, registration, license,  
            or permit, as provided.

          4)Makes it unlawful for a person who administers massage for  
            compensation to fail to comply with the requirements of this  
            bill, as specified.

          5)Deletes the requirement that allows certificate holders to  
            have their certificates automatically renewed without any  
            additional educational requirements, as specified, after  
            December 31, 2015.

          6)Deletes the requirement that applicants complete curricula in  
            massage and related subjects from approved schools after  
            December 31, 2015.

          7)Authorizes a city, county, or city and county to elect, by  








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            resolution and with the concurrence of the head of the local  
            law enforcement agency in that jurisdiction, to comply with  
            the following provisions:

        a)   Require applicants for certification to submit fingerprints  
               to the local law enforcement agency, in the city, county,  
               or city and county in which the applicant will be  
               administering massage.  The local law enforcement agency,  
               instead of the MTO, is required to submit the fingerprints  
               to the Department of Justice (DOJ), as specified;

        b)   Require DOJ to disseminate the determination of fitness of  
               the applicant to the local law enforcement agency instead  
               of the MTO, as specified;

        c)   Authorize local law enforcement to 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, as specified;

        d)   Require local law enforcement to conduct a local  
               investigation by compiling local arrest records and other  
               information related to the fitness of the applicant, in  
               addition to the state and federal background checks  
               conducted by DOJ;

        e)   Require the local law enforcement agency to assess the  
               fitness of the applicant and make a determination as to  
               whether a certificate shall be issued to the applicant;

        f)   Require the MTO to issue a certificate to an applicant  
               approved by a local law enforcement agency, unless the MTO  
               determines there are other grounds for disapproval, as  
               specified;

        g)   Prohibit the MTO from issuing a certificate to an applicant  
               who is disapproved for certification by the local law  
               enforcement agency; and,

        h)   Require the MTO to establish a standardized form describing  
               the fingerprinting requirements and what information to be  
               submitted by the applicant to the local law enforcement  
               agency, which shall include at a minimum: name, date of  
               birth, social security number, driver's license number,  








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               residence history, employment history, criminal arrest,  
               conviction, or abatement history, two passport quality  
               photographs, live scan fingerprints, the special local law  
               enforcement fee, and any other information DOJ needs to  
               conduct a criminal background check.  Prohibits a local law  
               enforcement agency from requiring that an applicant use any  
               other form when submitting his or her fingerprints, unless  
               MTO fails to comply with this requirement.

          8)Provides that the MTO board of directors also include, should  
            the entity choose to exercise its right to be represented on  
            the board:

            a)   One member selected by the California Police Chiefs  
                   Association; and,

            b)   One member selected by the California State Sheriffs  
                   Association.

          9)Declares it 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 MTO as a  
            massage therapist or massage practitioner unless that  
            representation is true.

          10)Expands provisions of law to cover all massage establishments  
            instead of only those where the sole proprietor is certified,  
            as specified, or that employ or use only persons certified, as  
            specified.

          11)Deletes the requirement preventing local building code or  
            physical facility requirements applicable to massage  
            establishments from requiring additional restrooms, showers,  
            or other facilities not uniformly applied to other  
            professional or personal service businesses, requiring  
            unlocked doors when there is no staff available, and requiring  
            windows that provide a view into massage rooms.

          12)States legislative intent.

          13)Is an urgency statute.

           EXISTING LAW  :









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          1)Provides for the voluntary certification of massage  
            practitioners and massage therapists by a nonprofit MTO until  
            January 1, 2016.

          2)Requires applicants for certification to be 18 years of age or  
            older, meet specified educational criteria, provide  
            fingerprints for submission by the MTO to DOJ for state and  
            federal criminal background checks, and pay required fees  
            prior to certification.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :

           Purpose of this bill  .  According to the author's office,  
          "Massage businesses are perfect fronts for prostitution, human  
          trafficking, and organized crime.  The state needs to strengthen  
          the certification process for massage therapists and  
          practitioners to prevent human traffickers from exploiting the  
          law.  Human trafficking criminal enterprises are extremely  
          sophisticated, and the current oversight procedures need to be  
          strengthened in order to avoid criminal manipulation.

          "Local law enforcement agencies are better able to recognize  
          local traffickers and have the resources to review the  
          applications in a more timely and thorough manner than the  
          [MTO]. Accordingly, AB 1822, among other things, would bolster  
          the current certification process and the [MTO] by adding a  
          local level of review."

           Background  .  According to the Associated Bodywork & Massage  
          Professionals, massage is the fifth largest health related  
          profession in California.  Massage is used for managing stress,  
          enhancing self-awareness, maintaining health, increasing  
          athletic performance, rehabilitating from injuries, and as an  
          adjunct to medical treatment for a wide variety of conditions.
           
          Estimates based on surveys, professional affiliations, and  
          liability insurance show that up to 25,000 massage therapists  
          are currently practicing in California.  Exact numbers are hard  
          to pinpoint given the high turnover rate of the profession.   
          Some massage therapists are independent practitioners, while a  
          large number of others are employees of spas and chiropractors.   
          Titles used in California by the massage profession include:   
          massage therapist, massage practitioner, certified massage  








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          therapist, massage technician, bodyworker, masseur, masseuse,  
          myotherapist, Nationally Certified in Therapeutic Massage and  
          Bodywork.  Where no local regulations exist, any title can be  
          used.
           
          The National Certification Board for Therapeutic Massage and  
          Bodywork (NCBTMB) certifies massage therapists and bodyworkers  
          on behalf of the profession.  NCBTMB developed and administers  
          the National Certification Examination for Therapeutic Massage  
          and Bodywork.  There is also a nationally recognized  
          certification exam for practitioners for certification in Asian  
          bodywork therapies.  This is administered by the National  
          Certification Commission for Acupuncture and Oriental Medicine.

           Regulation in California  .  Prior to 2009, cities and counties  
          could condition the issuance of a massage license upon proof  
          that the massage personnel and the owners or operators of such  
          businesses had not been convicted of certain sex-related crimes.  
           It was argued by some that AB 3325 (McAllister), Chapter 1352,  
          Statutes of 1976, which authorized local agencies to regulate  
          the business of massage, was enacted to deal in part with the  
          adult-oriented sex business, but in doing so, legitimate massage  
          businesses are subject to local ordinances that inappropriately  
          and oppressively regulate them as "adult entertainment."  Some  
          examples are restrictive zoning, excessive fees, tests for  
          sexually transmitted diseases, required showers and separate  
          restrooms, and prohibited home visits.  Because local  
          jurisdictions control the regulation of massage, local  
          ordinances can be vastly different.
           
          The perception of massage as a vice resulted in many cities  
          requiring expensive conditional use permits.  Restricting  
          massage businesses from opening within 1,000 feet of schools,  
          churches, or residences has effectively zoned massage out of  
          many small cities.  Proponents of state regulation also argued  
          that local regulation treats professionals and "massage parlors"  
          alike and that consumers have a problem knowing how to  
          distinguish legitimate massage practitioners from "massage  
          parlors."

          AB 1388 (Kehoe) of 2003 attempted to align regulation of massage  
          therapy with various healing arts professionals, including  
          physicians and surgeons, dentists, chiropractors, and  
          acupuncturists by establishing the Board of Massage Therapy in  
          the Department of Consumer Affairs to license and regulate  








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          massage therapists and massage practitioners.  This bill was  
          held in the Assembly Business and Professions Committee.

          In 2005, the issue of whether California should shift the  
          regulation of massage therapists from the local level to the  
          state level and what type of regulatory oversight should be  
          provided was submitted to review by the Joint Committee on  
          Boards, Commissions and Consumer Protection (Joint Committee).  
          This was part of the "sunrise review process", which provides  
          that any new proposals to create new licensure or regulatory  
          categories, change licensing requirements, modify scope of  
          practice, or create a new licensing board may be referred to the  
          Joint Committee by a standing committees of the Legislature.
           
          The Joint Committee found that massage therapy is "regulated in  
          California by a chaotic mish-mash of local vice ordinances  
          primarily aimed at controlling illicit 'massage parlors.'  In  
          essence, the current system seeks to regulate illegal activity  
          in the guise of professional licensing."  The Joint Committee  
          concluded that the current system fails to serve either the  
          public or the profession and that it is appropriate to  
          streamline the regulation of massage therapy at the state level  
          in order to create a more uniform standard.  The Joint  
          Committee, on April 12, 2005, issued its recommendation and  
          stated that regulation of massage therapists should be shifted  
          from the current local jurisdiction approach to a state-based  
          approach to provide for more uniform standards.  It was also  
          recommended that the state-based approach should be flexible  
          enough to serve the needs of the public and the profession, as  
          well as the legitimate interests of the local governments who  
          currently use existing law for legitimate public policy  
          purposes.
           
          The recommended regulatory regime for massage therapy was  
          modeled after regulatory regimes for tax preparers and interior  
          designers, which provide for statutorily created non-profit  
          corporations that have the authority to certify qualified  
          individuals in their respective professions.
           
          SB 412 (Figueroa) was introduced in 2005 and was sponsored by  
          the American Massage Therapy Association (AMTA).  SB 412 became  
          a two-year bill and lengthy discussions took place with the  
          League of Cities, California State Association of Counties,  
          local law enforcement, those representing private and public  
          massage schools, massage and related massage therapy  








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          associations and organizations, chiropractic and physical  
          therapy associations.  The primary opposition from the  
          California Chiropractic Association and the California Physical  
          Therapy Association concerned the definition of "massage  
          therapy."  SB 412 failed to pass the Assembly.

          In 2008, the Legislature again took up the issue of shifting the  
          regulation of massage therapists from local jurisdiction to a  
          state-based approach.  SB 731 (Oropeza), Chapter 384, Statutes  
          of 2008 created voluntary statewide certification of massage  
          therapists and the MTO with the authority to implement the  
          certification program.  The purpose of the MTO was to make the  
          process of certification the same throughout the state, rather  
          than different in each city and county.  The California  
          Statewide Voluntary Massage Certification allowed for work in  
          multiple California locations without the need for multiple  
          permits or fees.

           Arguments in support  .  The sponsor of this bill, the California  
          Police Chiefs Association, writes, "AB 1822 clarifies the law to  
          make it clear that a local government may require an  
          establishment permit, which will enable the closure of brothels  
          that are the repository of human trafficking victims.  AB 1822  
          provides language that indicates the Legislature's intent that  
          the business license powers of a city can be used to issue,  
          oversee, and/or revoke the permit of a massage business that is  
          engaging in unprofessional or unethical conduct.

          "Since local agencies already do these types of investigations  
          in connection with their local ordinances, they are uniquely  
          qualified to conduct these investigations for anyone who is  
          applying for a CMT from [MTO].  Additionally, it is the local  
          agencies that are best situated to provide that critical  
          background check and ensure known human traffickers or their  
          associates are not operating openly within their jurisdictions.

          "We recently did a random/regional sample of [MTO] applicants  
          and found that 57% were known prostitutes, 32% were of unknown  
          legitimacy and required further inquiry, and only 11% were  
          legitimate operators.  The specter of the [MTO], with their  
          limited resources, successfully screening out illegal operators  
          and human trafficking victims is completely unrealistic.   
          Additionally, [MTO] is not suited or situated to investigate,  
          deny, suspend, or revoke those who are operating outside of the  
          law.  In fact, it is possible for an applicant to obtain a  








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          certificate from the [MTO] without ever having to personally  
          present themselves!  Local screening, on the other hand, will  
          provide security for the public that applicants for [MTO]  
          certificates will not engage in human trafficking of victims in  
          our communities.

          "It is our experience that organized criminal enterprises look  
          to soft spots in the law to exploit their advantages.  Human  
          trafficking is on of their crimes of choice?We believe the  
          failure to require local law enforcement vetting of applicants -  
          something AB 1822 thankfully addresses - is precisely one of  
          those soft spots."

           Arguments in opposition  .  The AMTA writes in opposition, "It is  
          vital that massage professionals be firmly set apart from those  
          criminal enterprises that seek to co-opt our good name.  That is  
          why the California Chapter of the AMTA sponsored SB 731  
          (Oropeza) of 2008.

          "SB 731 created voluntary certification through the [MTO], which  
          is already providing a rigorous alternative to the haphazard  
          patchwork of local regulations that has let illegal businesses  
          flourish in California cities for too long.

          "SB 731 represented six years of work in the Legislature and  
          with every stakeholder in the massage industry, including law  
          enforcement.  AB 1822 entirely undermines the excellent tools  
          and fair regulatory system created by those years of  
          cooperation."

          Richard McElroy, a board member for the [MTO] and former police  
          officer for the Los Angeles Police Department, writes, "For over  
          25 years I investigated these illegal establishments, wrote  
          countless search warrants, testified as a department expert in  
          court and provided training at the LAPD academy in the  
          investigation of these establishments.  During this 25-year  
          period, I also worked the Internal Affairs Division.  I wrote  
          the Department's manual (SMART) used to abate these massage  
          brothels.

          "The following are the reasons why [MTO's] review and  
          investigative process is superior to all past methods of vetting  
          massage professions:
                         [MTO] not only examines the DOJ background  
               report, but pays an additional charge to receive subsequent  








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               arrest notification from DOJ when the applicant is arrested  
               at a later date.  Local police departments do not.
                         [MTO] sends out notifications to the cities  
               where the applicant lives and works (current and past)  
               requesting any criminal information they have that the  
               CAMTC should consider when reviewing an application.  Local  
               police departments do not.
                         [MTO] has contracted with a private  
               investigative firm to research and physically pull court  
               documents from any location in the state as well as  
               recovering criminal information from out-of-state.  Local  
               police departments do not.
                         [MTO] is a member of the Federation of State  
               Massage Therapy Boards and has access to the National  
               Practitioners Database which provides information on  
               applicants who have disciplinary history in the various  
               states where they have been licensed.
                         [MTO] has the right to investigate applicants'  
               education, and which sometimes uncovers educational fraud  
               and/or applicants.  Most local police departments do not  
               investigate applicants' education.
                         [MTO] has the right to interview applicants and  
               will, when necessary, contact the individual applicant to  
               determine the character and intentions of the applicant."
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Police Chiefs Association (sponsor)
          Association for Los Angeles Deputy Sheriffs
          California Correctional Supervisors Organization
          California Fraternal Order of Police
          California Narcotics Officers Association
          California Peace Officers' Association
          California Police Chiefs Association
          Chief of Police Rick Esteves, City of Downey
          Chief of Police Robert M. Luman, Newport Beach Police Department
          City of Fountain Valley
          Long Beach Police Officers Association
          Los Angeles County Professional Peace Officers Association
          Riverside Sheriffs' Association
          Santa Ana Police Officers Association

           Opposition 








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          American Civil Liberties Union
          American Massage Therapy Association
          California Chiropractic Association
          California Massage Therapy Council
          East Bay Community Law Center
          Magic Hands Healing Center
          National Employment Law Project
          Numerous individuals
           
          Analysis Prepared by  :    Marina Wiant / B. & P. / (916) 319-3301