BILL ANALYSIS
AB 1822
Page 1
ASSEMBLY THIRD READING
AB 1822 (Swanson)
As Amended May 28, 2010
Majority vote
BUSINESS & PROFESSIONS 8-3
APPROPRIATIONS 12-0
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|Ayes:|Emmerson, Conway, Eng, |Ayes:|Fuentes, Ammiano, |
| |Ma, Nava, Niello, Ruskin, | |Bradford, |
| |Smyth | |Charles Calderon, Coto, |
| | | |Davis, Monning, Ruskin, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Hayashi, Hernandez, Hill | | |
| | | | |
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SUMMARY : Authorizes a city, county, or city and county to
require any person who administers massage to hold a business
license or massage establishment permit, as specified, and adds
two additional members to the board of directors of the Massage
Therapy Organization (MTO). Specifically, this bill :
1)Increases the membership of the MTO by two members by adding
one member selected by the California Police Chiefs
Association and one member selected by the California State
Sheriffs' Association unless either entity chooses not to
exercise this right of selection.
2)Authorizes any 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 or a massage establishment permit or both.
3)Makes conforming and technical changes.
EXISTING LAW :
1)Provides for the voluntary certification of massage
practitioners and massage therapists by a nonprofit MTO until
January 1, 2016.
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2)Provides that the MTO is governed by a board of directors
comprised as follows:
a) One member selected by a statewide association of private
postsecondary schools, as specified, 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; and,
e) One member appointed by the California Community College
Chancellor's Office, unless that entity chooses not to
exercise this right of selection;
3)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 : According to the Assembly Appropriations
Committee, no direct state fiscal impact results from the
requirements of this bill.
COMMENTS : 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.
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"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."
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
therapist, massage technician, bodyworker, masseur, masseuse,
myotherapist, Nationally Certified in Therapeutic Massage and
Bodywork. Where no local regulations exist, any title can be
used.
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
authorizes 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
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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."
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.
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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, creates 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.
Analysis Prepared by : Rebecca May / B. & P. / (916) 319-3301
FN: 0004706