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
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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