BILL ANALYSIS                                                                                                                                                                                                    



                                                                      



                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 285 (Correa)                                             
          As Introduced February 14, 2011 
          Hearing date:  May 3, 2011
          Penal Code
          JM:dl
                                                                      
                            MASSAGE THERAPY CERTIFICATION:

                                        FRAUD  


                                       HISTORY

          Source:  Orange County District Attorney

          Prior Legislation: SB 731 (Oropeza) - Ch. 384, Stats. 2008

          Support: California Massage Therapy Council; Association of 
                   Orange County Deputy Sheriffs; Santa Ana Police 
                   Officers Association; Long Beach Police Officers 
                   Association; Los Angeles County Professional Peace 
                   Officers Association; California Fraternal Order of 
                   Police

          Opposition:None known



                                        KEY ISSUES
           
          SHOULD A PERSON WHO FALSELY ASSERTS OR AFFIRMS THAT A PERSON HAS 
          RECEIVED MASSAGE THERAPY INSTRUCTION BE GUILTY OF A MISDEMEANOR, 
          WITH A MAXIMUM JAIL TERM OF ONE YEAR AND A FINE OF UP TO $2,500, AS 




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          SPECIFIED?

          WHERE ANY PERSON IS PROSECUTED FOR A CRIME CONNECTED WITH MASSAGE 
          THERAPY, SHOULD A LAW ENFORCEMENT AGENCY INFORM THE MASSAGE THERAPY 
          ORGANIZATION ABOUT THE PERSON'S TRAINING, AS SPECIFIED?


                                       PURPOSE

          The purposes of this bill are to provide 1) that any person who 
          falsely asserts or affirms, including through issuance of an 
          unearned diploma or certificate, that a person has received 
          massage therapy instruction, is guilty of a misdemeanor, with a 
          maximum jail term of one year and a fine of up to $2,500; and 2) 
          that where any person is prosecuted for a crime connected with 
          massage therapy, including prostitution, a law enforcement 
          agency shall inform the Massage Therapy Organization about the 
          person's massage therapy training, including the name of any 
          school the person attended, as specified. 
          
           Existing law  includes a process for voluntary certification by a 
          non-profit Massage Therapy Organization (the California Massage 
          Therapy Council) of a person as a massage therapist or related 
          professional. (Bus. & Prof. Code  4600 et seq.)
           
          Existing law  provides that a person must complete 250 hours of 
          specified training to obtain certification as a massage 
          practitioner. (Bus. & Prof. Code  4601, subd. (a).)

           Existing law  provides that a person must complete 500 hours of 
          specified training to obtain certification as a massage 
          therapist. (Bus. & Prof. Code  4601, subd. (c).)

           Existing law  provides that certification is valid for two years. 
          (Bus. & Prof. Code  4601, subd. (f).)

           Existing law  provides that a person who obtains a certificate 
          has the right to practice massage in any city, county or city 
          and county in California. (Bus. & Prof. Code  4612, subd. (a).)





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           Existing law  authorizes local government entities to enact 
          reasonable health and safety requirements for massage 
          establishments and zoning rules that do not discriminate against 
          massage businesses. (Bus. & Prof. Code  4612, subds. (a)-(b).)

           Existing law  authorizes local government entities to regulate 
          massage services by persons who are not certified. (Bus. & Prof. 
          Code  4613.)

           This bill  provides that any person who provides a certificate, 
          diploma or other document, or otherwise affirms that a person 
          has received massage therapy instruction, knowing that the 
          person has not received such training, is guilty of a 
          misdemeanor, punishable by a fine of no more than $2,500, or 
          imprisonment in county jail for up to one year, or both.

           This bill  provides that any person who is criminally prosecuted 
          for a violation of law in connection with massage therapy, 
          including crimes related to prostitution, a law enforcement 
          agency shall inform the Massage Therapy Organization (created 
          pursuant to Section 4600.5) about the instruction received by 
          the person prosecuted, including the name of any school attended 
          by the prosecuted person.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 




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          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear 
          the state's appeal of this order and, on Tuesday, November 30, 
          2010, the Court heard oral arguments.  A decision is expected as 
          early as this spring.  

          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  does not aggravate the prison overcrowding crisis 
          described above.


                                      COMMENTS

              1.   Need for This Bill
             
          According to the author:

               This legislation addresses fraudulent issuance of 
               transcripts by massage schools.  Criminalizing this 
               conduct will deter massage schools from assisting 
               human traffickers in sexually exploiting women.  In 
               addition, the identity of the massage school attended 
               by a massage therapist who has been prosecuted for 
               prostitution should be provided to the California 
               Massage Therapy Council (CAMTC) so that massage 
               schools that are in league with human traffickers can 
               be readily identified.  

               Human trafficking is one of the fastest growing 
               criminal industries in the world.  Traffickers reap 




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               billions in profits by using force, fraud, and 
               coercion to rob victims of their freedom.  According 
               to the U.S. State Department there are 12.3 million 
               human trafficking victims around the world; 56 percent 
               of whom are women and girls.  In 2009, 49,105 victims 
               were identified worldwide, a 59 percent increase over 
               2008.  
               
               California is a prime target for traffickers. The 2007 
               Human Trafficking in California Final Report found 
               that the majority of victims were non-citizens, with 
               or without valid travel documents.  The report stated 
               that prostitution was the most common form (47 %) of 
               human trafficking followed by domestic servitude (33 
               %) and agriculture (2 %).
             
               Increasingly, human trafficking victims to work in 
               illegitimate massage parlors, providing sexual 
               services under the guise of massage therapy.  
               Traffickers bring in women, often from Asia, and force 
               them to work off the debt of being smuggled into the 
               United States by working in massage parlors as 
               prostitutes. 

               In order for a trafficking victim to work in a massage 
               parlor, either a local police department permit or a 
               certificate from the California Massage Therapy 
               Council ("CAMTC") is required.  The CAMTC was 
               established by the Legislature to certify massage 
               therapists statewide.  Police and CAMTC require a 
               transcript from a massage school certifying that the 
               student has received 500 hours of massage training, in 
               English.  Many victims speak little or no English and 
               could not complete such training and traffickers do 
               not want to wait six months for victims to complete 
               training.  Thus, the traffickers purchase falsified 
               massage school transcripts.  Ending access to 
               fraudulent transcripts will make human trafficking 
               significantly more difficult.  Unfortunately, under 
               existing law, it is not a crime to sell someone a 




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               phony massage school transcript.  This bill would 
               remedy that problem.

               This bill addresses a second problem.  Each police 
               department only knows of massage school-related 
               prostitution arrests in their local area.  This 
               information is not collated in a single location and 
               made available to law enforcement agencies.  This 
               makes it very difficult to identify the fraudulent 
               massage schools.  This legislation would require this 
               information be provided to CAMTC for distribution to 
               all law enforcement agencies who wish to receive it. 

              2.   Background - Massage Therapy Certification
           
          Massage therapy practice is not directly regulated by a state 
          agency.  Rather, state law authorizes or creates a non-profit 
          organization, the CAMTC that provides voluntary or optional 
          massage certification.  The governing statutes describe the 
          composition of the organization and set the standards for 
          massage practitioners and the more advanced status of massage 
          therapists.

          The website of the Massage Therapy Council describes the 
          statutory purpose and duties of the council:

               (1) Create and implement voluntary certification for 
               the massage therapy profession that will enable 
               consumers to easily identify credible Certified 
               Massage Therapists (CMTs) and Certified Massage 
               Practitioners (CMPs); 

               (2) Ensure that CMTs and CMPs have completed 
               sufficient training at approved schools; and 

               (3) Increase education and training standards 
               consistent with other states.

           3.Provision in the Bill Requiring Law Enforcement to Notify the 
            CAMTC When Persons Certified by Each Massage School are 




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            Arrested for Prostitution  

          This bill requires law enforcement agencies to notify the CAMTC 
          of prostitution arrests involving persons certified by various 
          schools as trained in massage therapy or practice.  
          Specifically, the bill provides:  "A law enforcement agency 
          shall provide to the Massage Therapy Organization, created 
          pursuant to Section 4600.5 of the Business and Professions Code, 
          information concerning the massage therapy instruction received 
          by the person prosecuted, including the name of the school 
          attended, if any."

          The bill does not specify which agency shall provide information 
          to the "Massage Therapy Organization."  This could be the 
          arresting agency, the Department of Justice or another agency.  
          Perhaps the agency best able to provide this information would 
          be the arresting agency.  However, the arresting officers may be 
          unaware of the provisions of this bill.

          Arguably, the particular school attended by a prostitution 
          defendant, or at least the school listed on a certificate or 
          diploma, is only marginally relevant to the facts underlying a 
          prostitution arrest.  The elements of solicitation of an act of 
          prostitution are an offer to perform a sexual act and agreement 
          for an exchange for money or other consideration for the act.  
          Where an arrest occurs in the context of a massage business, the 
          fact that the massage provider solicited a sexual act in 
          exchange for money, rather than providing massage for a fee, is 
          the essence of the case.  The fact that the defendant possesses 
          a massage therapy training certificate, and the name of the 
          school, would not likely be of particular concern, except 
          perhaps where law enforcement is aware that prostitution 
          defendants may often be associated with prostitution.  That is, 
          in documenting an arrest to solicitation of prostitution, the 
          arresting officer may have no reason or occasion to determine 
          what school the person attended or claimed to attend. 

          Effective implementation of this provision will likely depend on 
          education of law enforcement agencies which arrest defendants 
          for providing sexual services under the guise of legitimate 




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          massage.  Members may wish to consider whether this bill should 
          be amended to state that the arresting agency shall provide 
          information to CAMTC about the training, or alleged training, of 
          the defendant if that information is known to the agency.








































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           4.Suggested Amendment to Specify the CAMTC as the Entity that 
            Certifies and Sets Training Standards for Massage 
            Professionals
           
          The bill refers to "the Massage Therapy Organization created by 
          Business and Professions Code Section 4600.5."   The author or 
          members of the Committee may wish to consider amending the bill 
          to refer to the agency that was created in that section, the 
          California Massage Therapy Council.  The use of a different name 
          for the council, a name that could be either a generic 
          description or the name of a specific agency, is arguably 
          confusing.

          SHOULD THE BILL BE AMENDED TO SPECIFICALLY REFER TO THE CAMTC AS 
          THE AGENCY THAT CERTIFIES AND SETS STANDARDS FOR MASSAGE 
          PROFESSIONALS?

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