BILL ANALYSIS AB 1822 Page 1 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 AB 1822 Page 2 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, AB 1822 Page 3 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 : AB 1822 Page 4 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 AB 1822 Page 5 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 AB 1822 Page 6 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 AB 1822 Page 7 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 AB 1822 Page 8 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 AB 1822 Page 9 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 AB 1822 Page 10 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