BILL ANALYSIS
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|Hearing Date:June 28, 2010 |Bill No:AB |
| |1822 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 1822Author:Swanson
As Amended:June 23, 2010 Fiscal: No
SUBJECT: Massage therapy.
SUMMARY: Increases the membership of the Massage Therapy
Organizations (MTO) by two members by adding one member selected by
the California Police Chiefs Association and one member from the
California State Sheriffs Association. Authorizes the MTO to define
the term "unprofessional conduct" and defines the term "professional
services" as it relates to certified massage therapists and
practitioners. Authorizes a city, county, or city and county to
investigate massage establishments who may have ownership by persons
other than those certified by the MTO. Provides for the suspension or
revocation of a certificate granted by the MTO if it is found that the
certified massage therapist or practitioner failed to be responsible
for the conduct of their employees or independent contractors.
Provides other clarifying and technical changes to the Act.
Existing law:
1)Provides for the regulation and licensing of various health arts
professionals, including physicians and surgeons, chiropractors,
physical therapists, and acupuncturists.
2)Authorizes a city or county to adopt an ordinance which provides for
the licensing for regulation of the business of massage when carried
on within the city or county.
3)Specifies that the ordinance may require reasonable standards which
may include, but need not be limited to, the age and education and
experience of massage personnel, passage of a practical examination
of competence, sanitary conditions of the establishment, hours of
operation of the business, prohibition of the sale or serving of
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food or drink, or conducting non-massage business on the premises.
4)Permits local agencies to deny massage licenses to persons who
have been convicted of crimes such as pandering, prostitution,
or sales of narcotics, and to persons who are required to
register as sex offenders.
5)Provides, commencing on September 1, 2009, for certification of
massage practitioners and massage therapists, as defined, by the
MTO and specifies that the MTO is a nonprofit organization
meeting specified requirements, and would impose certain duties
on the MTO.
6)Provides that the MTO is to be governed by a board of directors
(Board) which shall include:
a) Two representatives from each professional society,
association, or other entity whose membership is comprised of
massage therapists and that chooses to participate in the MTO
and that has a dues-paying membership in California of at
least 1,000 individuals for the last three years and that
shall have by-laws that requires its members to abide by a
code of ethics.
b) One member selected by each statewide association of
private postsecondary schools incorporated on or before
January 1, 2010, whose members schools have together had at
least 1,000 graduates in each of the previous three years
from approved and registered, as defined, massage therapy
programs.
c) One member selected by the League of California cities.
d) One member selected by the California State Association of
Counties.
e) One member selected by the Department of Consumer Affairs.
f) One member appointed by the California Community College
Chancellor's Office.
7)Provides that the above mentioned entities may choose not to
exercise the right of selection of a member to serve on the MTO
Board and allows for the MTO's bylaws to establish a process for
appointing other professional directors as determined by the
Board.
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8)Provides that the Board shall establish certification fees that
are reasonably related to the cost of providing services and
carrying out its ongoing responsibilities and duties.
9)Requires the MTO to issue a " massage practitioner " certificate
to an applicant, who submits a written application and provides
satisfactory evidence that he or she meets all of the specified
education, experience or examination requirements, or has a
current valid license from a local jurisdiction and meets other
education and/or experience requirements.
10)Requires the MTO to issue a " massage therapist " certificate to
an applicant who submits a written application and provides with
satisfactory evidence that he or she meets all of the specified
education, experience or examination requirements.
11)Requires the MTO to issue a certificate to an applicant who
meets the other qualifications provided for and holds a current
and valid registration, certification, or license from any other
state whose licensure requirements meets or exceeds those
defined above.
12)Provides that any certification issued shall be subject to
renewal in a manner prescribed by the MTO and shall expire
unless renewed in that manner every two years. Further,
authorizes the MTO to provide for the late renewal of a
certification.
13)Provides that the MTO shall determine whether or not a school
provides education that meets the requirements of certification
and requires the MTO to investigate, if necessary, whether or
not an applicant has actually completed the education he or she
claims in his or her application and to conduct oral interviews,
if necessary, of any applicant to make any investigation to
establish that the information received is accurate and
satisfies any criteria established pursuant to the Massage
Therapists Act (Act).
14)Provides that prior to issuing a certificate to the applicant
or designating a custodian of records the MTO shall obtain
fingerprints, which may be in an electronic format, from an
applicant for certification as a massage therapist or massage
practitioner for the purpose of conducting a criminal background
check, and specifies that the Department of Justice (DOJ) shall
provide the MTO with the specified information relating to an
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applicant's criminal history.
15)Provides that the MTO shall request subsequent arrest
notification service from the DOJ to conduct a search for state
and federal level criminal offender record information.
16)Provides that the MTO may discipline a certificate holder by
any, or a combination of, the following methods: a) probation
with conditions; b) suspending the certificate for a period not
to exceed one year; c) revoke the certificate; d) provide for
conditional certificate suspension; e) any other appropriate
action as authorized by its by-laws.
17)Requires the MTO to suspend a certificate if the holder has
been arrested and charged with any sexually related or
prostitution-related crime and to notify the holder and his or
her employer of the suspension, and if the charges result in a
conviction, the MTO shall permanently revoke the certification;
however, if the holder is acquitted of the charges, the MTO
shall re-instate the certification.
18)Requires the MTO to provide specified information regarding
certificate holders to any local law enforcement or other agency
that regulates massage therapy, and likewise the MTO shall
accept and review any information pertaining to a certificate
holder provided by local law enforcement or other agency that
regulates massage therapy, and shall have the responsibility to
take any actions as authorized under the Act and are warranted
by the information.
19)Provides for various grounds for discipline against a
certificate holder or for denial of a certificate to an
applicant, including: unprofessional conduct; procurement of
certificate by fraud; misrepresentation or mistake; conviction
of a felony or misdemeanor substantially related to their
qualifications, functions or duties, or committing any
fraudulent, dishonest, or corrupt act that is substantially
related; and, committing any act punishable as a sexually
related crime.
20)Provides that no certificate holder or certificate applicant
may be disciplined or denied a certificate except according to
specified due process procedures which have been set forth in
the articles or bylaws of the MTO.
21)Requires a certificate holder to notify the MTO of his or her
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home and business address and to report any change in either of
these addresses to the MTO within 30 days.
22)Provides that it is an unfair business practice for any
certified massage therapist or certified massage practitioner 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 state-certified, registered, or
licensed by a governmental agency to perform the functions of a
massage therapist or massage practitioner.
23)Provides that it is an unfair business practice for any person
to hold himself or herself 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 for
certification, and that any person who violates this provision
shall be guilty of a misdemeanor.
24)Provides that the superior court in and for the county in which
any person acts as a massage practitioner or massage therapist
in violation of any of the provisions of the Act may upon
petition from any person issue an injunction or appropriate
order restraining such conduct.
25)Provides that the holder of a certificate issued by the MTO
shall be able to practice massage in any city, county, or city
and county, consistent with the Act and the qualification
established by his or her certification, and shall not be
required to obtain any other license, permit, or other
authorization, except as provided under the Act.
26)Provides that 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 the Act and who is practicing consistent
with the qualifications established by his or her certification.
27)Provides that no provision of any ordinance enacted by a city,
county, or city and county that is in effect before the
effective date of this Act, and that requires a license, permit,
or other authorization to practice massage, may be enforced
against an individual who is certified under the Act.
28)Provides that if a massage establishment or business is a sole
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proprietorship owned by a person certified by the MTO and , for
the purposes of providing massage services, employs only
individuals certified by the MTO , then the following shall
apply:
a) Any 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 .
b) Any county, city, or city and county may charge a massage
business or establishment (who are certified) a business
licensing fee sufficient to cover the costs of the business
licensing activities.
c) Any county, city, or city and county may adopt land use
and zoning requirements applicable to a massage business or
establishment (who are certified), provided that these
requirements that are uniformly applied to other professional
or personal services businesses.
d) Local building code or physical facility requirements
applicable to massage establishments or businesses (who are
certified) 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 require
unlocked doors when there is not staff available to assure
security for clients and massage staff who are behind closed
doors, or require windows that provide a view into massage
rooms that interfere with the privacy of clients of the
massage business.
e) Any county, city, or city and county may adopt reasonable
health and safety requirements with respect to a massage
establishment or businesses (who are certified), as
specified.
29)Provides that nothing in the Act shall 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 that employs or uses persons who are not certified
pursuant to the Act.
30)Provides that an operator or a massage business that is
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certified by the MTO and/or uses only individuals certified by
the MTO shall be responsible for the conduct of his or her
employees and shall be subject to suspension of any required
local business license or permit if violations of the Act or a
local ordinance occur.
31)Provides that a local government may subject any massage
business or establishment to reasonable inspections to verify
conformance with local ordinances and fire, health, and safety
requirements, and may also require the operator of a massage
business to notify it of any change in business name,
management, or transfer of ownership to another person.
32)Provides that a local government may charge a massage business
a licensing fee sufficient to cover business licensing
activities.
33)Provides that nothing in the Act shall restrict a local
government from regulating an individual not certified by the
MTO.
34)Provides that nothing in the Act is intended to affect the
practice rights of any person licensed by this state or to grant
any individual certified by the MTO any additional practice
rights not enumerated in the Act.
35)Repeals the provisions of the Act on January 1, 2016.
This bill:
1) Adds one member selected by the California Police Chiefs
Association and one member selected by the California Sheriffs
Association to the MTO Board and specifies that no more than two
law enforcement professionals may serve on the Board at any given
time.
2) Provides that the MTO may adopt a definition of "unprofessional
conduct" by resolution at a duly noticed public hearing.
3) Provides that the MTO may require, for purposes of granting a
massage practitioner certificate, documentation evidencing that
they meet the education and experience requirements as specified
and after reviewing the information, or upon the request of a local
law enforcement agency , may require additional information
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necessary to enable it to determine whether to issue a certificate.
4) Defines the term "professional services" as related to the
requirements (ordinances for land use and zoning or local building
coed or physical facility requirements) that must be uniformly
applied by a city, county, or city and county to certified massage
therapists who are operating a massage establishment as to all
other businesses providing "professional services." "Professional
services" means any type of professional services that may be
lawfully rendered only pursuant to a license, certification, or
registration authorized by the Business and Professions Code, the
Chiropractic Act, or the Osteopathic Act.
5) Provides that nothing in the Act precludes a city, county, or city
and county from requiring a background check, as specified, of an
owner or operator of a massage establishment who is not certified
pursuant to this Act.
6) Provides that failure by a certified massage therapist owner or
operator of a massage establishment to comply with the requirement
that they be responsible for the conduct of all employees or
independent contractors, shall result in suspension or revocation
of the owner or operator's certificate, as specified.
7) Provides other technical and clarifying changes to the Act.
FISCAL EFFECT: This measure has been keyed "nonfiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This measure is sponsored by the California Police Chiefs
Association (Police Chiefs). As originally intended, this measure
would have undermined the intent of the Act and SB 731 (Oropeza) to
set up uniform standards and requirements for massage therapists to
practice in California and prevent local jurisdictions from enacting
differing ordinances that were basically aimed at controlling
illicit "massage parlors." This measure has been substantially
amended. It now deals with an effort on the part of the Police
Chiefs and the massage therapy profession to try and come to
agreement on specific changes to the Act. According to the Author,
this measure will provide representation on the MTO of both police
and sheriff's offices, clarify certain terms used in the Act such as
"unprofessional conduct" and the "professional services" provided by
certified massage therapists. It will also allow local
jurisdictions to better regulate those massage establishments that
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are no more than fronts for prostitution, human trafficking, and
organized crime. It will provide for a closer sharing of
information between local jurisdictions and the MTO in reviewing
applicants who wish to become certified massage therapists or
practitioners.
2.Background.
a) The Practice of Massage Therapy in California. Massage
has grown into the third most requested Complementary and
Alternative Practice; only chiropractic and relaxation
techniques are more popular, according to the American
Massage Therapy Association, California Chapter (AMTA-CA).
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.
According to the AMTA-CA, 220 schools in California are now
approved to offer instruction in massage, with programs
ranging from 100 hours to 1,000 hours. In addition to the
large number of proprietary schools approved by the Bureau of
Private Post-Secondary and Vocational Education or nationally
accredited, massage as a vocation is now taught in
cosmetology schools, trade schools, and several community
colleges.
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.
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
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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.
According to the AMTA-CA, consumers do not know the difference
between a purchased certification and a certification that
requires a specific amount of training. Different
jurisdictions have different standards which would indicate
that there is no local government agreement about what
standards are necessary and sufficient.
b) Current Law and Regulation in California Cities and
Counties. AB 3325
(McAllister, Chapter 1352, Statutes of 1976) enacted the
existing local authority to regulate the business of massage.
In analyses of that bill, it is stated that the purpose of
the bill is to clearly state that local governments have the
authority to regulate the operation of massage businesses
through licensing procedures if they so desire.
Current law allows cities and counties to condition the
issuance of a massage license upon proof that the massage
personnel and the owners or operator of such businesses have
not been convicted of certain sex-related crimes. It was
argued by some that this legislation 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, VD tests, 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 has 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 argue
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."
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c) Regulation in Other States. As reported by the AMTA-CA
and the Associated Bodywork and Massage Professionals, 33
states and the District of Columbia currently regulate
massage therapy and bodywork as follows:
-------------------------------------------------------
|Licensed States |Certification |Registration |
| |States |States |
| | | |
|---------------------+----------------+----------------|
|Alabama |Delaware* |Mississippi |
|---------------------+----------------+----------------|
|Arizona |Maine |Texas |
|---------------------+----------------+----------------|
|Arkansas |Maryland* | |
|---------------------+----------------+----------------|
|Connecticut |New Jersey | |
|---------------------+----------------+----------------|
|Florida |Virginia | |
|---------------------+----------------+----------------|
|Hawaii |Wisconsin | |
|---------------------+----------------+----------------|
|Illinois | | |
|---------------------+----------------+----------------|
|Iowa | | |
|---------------------+----------------+----------------|
|Kentucky | | |
|---------------------+----------------+----------------|
|Louisiana | | |
|---------------------+----------------+----------------|
|Maryland | | |
|---------------------+----------------+----------------|
|Missouri | | |
|---------------------+----------------+----------------|
|Nebraska | | |
|---------------------+----------------+----------------|
|New Hampshire | | |
|---------------------+----------------+----------------|
|New Mexico | | |
|---------------------+----------------+----------------|
|New York | | |
|---------------------+----------------+----------------|
|North Carolina | | |
|---------------------+----------------+----------------|
|North Dakota (title | | |
|Certified) | | |
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|---------------------+----------------+----------------|
|Ohio | | |
|---------------------+----------------+----------------|
|Oregon | | |
|---------------------+----------------+----------------|
|Rhode Island | | |
|---------------------+----------------+----------------|
|South Carolina | | |
|---------------------+----------------+----------------|
|Tennessee | | |
|---------------------+----------------+----------------|
|Utah | | |
|---------------------+----------------+----------------|
|Washington | | |
|---------------------+----------------+----------------|
|Washington DC | | |
|---------------------+----------------+----------------|
|West Virginia | | |
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|* Two-tier title regulations |
| |
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d) Legislative Attempts for California State Regulation. In
February 2003, Assembly Member Kehoe introduced AB 1388 ,
which was sponsored by the AMTA-CA. As introduced, the bill
would have established the Massage Therapy and Bodyworks
Commission in the Department of Consumer Affairs to register
and regulate massage therapists and bodyworkers. It was
referred to Assembly Business and Professions Committee;
however, it died in that committee without being heard.
Although there was significant discussion surrounding the
issue of state regulation of massage therapy, interested
parties could not reach any type of agreement as to what the
regulatory scheme should be.
In January 6, 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
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new licensing board may be referred to the Joint Committee by
the standing committees of the Legislature. (Sunrise review
is also required under Section 9148 et seq. of the Government
Code for any new categories of licensure or creation of a new
licensing board.) This permits an opportunity for all
interested parties to participate in discussing both the pros
and cons of such a proposal and for the Joint Committee to
make recommendations to the Legislature regarding these
proposals.
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, 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 (Business
and Professions Code, Section 22250 et seq.) and interior
designers (Business and Professions Code, Section 5800 et
seq.) 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 AMTA-CA. 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 associations and organizations,
chiropractic and physical therapy associations. SB 731 is
almost identical in every aspect to SB 412 as of August 24,
2006. The only difference appears to be the definitions of
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"approved" and "registered schools" and in the definition of
massage therapy. SB 412 failed to pass off the Assembly
Floor at the end of session in 2006, and the primary
opposition was from the California Chiropractic Association
and the California Physical Therapy Association regarding the
definition of "massage therapy."
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 a voluntary statewide certification
of massage therapists and the MTO with the authority to
implement 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 program
allowed for work in multiple California locations without the
need for multiple permits or fees and multiple and differing
requirements to provide massage therapy services.
NOTE : Double-referral to Rules Committee (second.)
SUPPORT AND OPPOSITION: (As Amended, June 23, 2010)
Support:
California Police Chiefs Association (Sponsor)
California District Attorneys Association
Opposition:
Associated Bodywork and Massage Professionals
California Massage Therapy Council
Consultant:Bill Gage