BILL ANALYSIS Ó
SB 1238
Page 1
SENATE THIRD READING
SB 1238 (Price)
As Amended August 20, 2012
Majority vote
SENATE VOTE :38-0
BUSINESS & PROFESSIONS 9-0
APPROPRIATIONS 17-0
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|Ayes:|Hayashi, Bill Berryhill, |Ayes:|Gatto, Harkey, |
| |Allen, Butler, Eng, | |Blumenfield, Bradford, |
| |Hagman, Hill, Ma, Smyth | |Charles Calderon, Campos, |
| | | |Davis, Donnelly, Fuentes, |
| | | |Hall, Hill, Cedillo, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
| | | | |
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SUMMARY : Makes a number of changes to law pertaining to the
California Massage Therapy Council (CAMTC). Specifically, this
bill :
1)Defines an operator of a massage business to mean a person,
whether owner or nonowner, who manages or operates a massage
business.
2)Allows the use of credit unit equivalents (in addition to
hours) in determining completion of required education for
massage practitioners and massage therapists.
3)Revises the dual path to licensure for massage therapists by
adding the following educational requirements to the option
that currently requires only the passage of a competency
assessment examination: successful completion, at a single
approved school, of curricula in massage and related subjects
totaling a minimum of 250 hours that incorporates appropriate
school assessment of student knowledge and skills. Included
in the hours shall be instruction addressing anatomy and
physiology, contraindications, health and hygiene, and
business and ethics, with at least 100 hours of the required
minimum 250 hours devoted to these curriculum areas.
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4)Requires certificates and identification cards issued by the
CAMTC to be surrendered to CAMTC by any holder whose
certificate has been suspended or revoked.
5)Allows the CAMTC to immediately suspend the certificate of a
certificate holder upon receipt of clear and convincing
evidence that the holder has committed an act punishable as a
sexually related crime or felony, and requires the CAMTC to
consider any available credible mitigating evidence before
making a decision to suspend a certificate, as specified.
6)Provides the holder of a suspended certificate the right to a
hearing within 30 days, and requires the CAMTC to send notice
of suspension to the certificate holder, businesses on record
with the CAMTC as employing or contracting with the holder,
and the local permitting authority with jurisdiction over the
employing or contracting businesses, as specified.
7)Authorizes a law enforcement agency or local government agency
with responsibility for regulating massage or massage
business, upon request of the CAMTC, to provide information to
the CAMTC concerning an applicant or certificate holder,
including, but not limited to: the current status of any
application or local permit; any history of disciplinary
action taken against the applicant or certificate holder; any
information related to criminal activity or unprofessional
conduct allegedly engaged in by an applicant or certificate
holder, including, but not limited to, police reports and
declarations of conduct; the home and work addresses of the
applicant or certificate holder; and, any other information in
the law enforcement agency's or other local government
agency's possession that is necessary to verify facts or
implement laws governing massage therapists.
8)Authorizes the CAMTC to deny an application or discipline a
certificate holder for a conviction of any infraction,
municipal code violation, or liability in an administrative or
civil action that is substantially related to the
qualifications, functions, or duties of a certificate holder,
in which event the record of the conviction or other judgment
shall be conclusive evidence of the crime or liability.
9)Requires a certificate holder to display his or her original
certificate at his or her place of business.
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10)Requires a certificate holder to have his or her
identification card in his or her possession while providing
massage services.
11)Requires a certificate holder, upon request at the location
where he or she is providing massage services, to provide his
or her full name and certificate number to a member of the
public, the CAMTC, or a member of law enforcement or a local
government agency charged with regulating massage.
12)Specifies that business license fees charged to a massage
business or establishment can be no higher than the lowest fee
that is applied to other individuals and businesses providing
professional services, as specified.
13)Makes a certified massage business owner responsible for the
conduct of all employees or independent contractors working on
the premises of the business.
14)Specifies that local jurisdictions can only ask for
information from applicants for a massage business license
that is the same as that required of other individuals and
professionals providing professional services, as specified.
15)Specifies that the background check that a local jurisdiction
can require of an owner or operator of a massage establishment
may include, but is not limited to, a criminal background
check, including requiring submission of fingerprints. If a
noncertified owner's or operator's background check results in
a finding that the local jurisdiction determines is relevant
to owning or operating a massage establishment, then specified
rights to practice shall not apply to that establishment and
the local jurisdiction may regulate that establishment in any
manner it deems proper that is in accordance with the law.
16)Specifies that nothing in statutes governing massage therapy
shall be construed to restrict or limit in any way the
authority of a local jurisdiction to adopt a local ordinance
restricting the opening of a new massage establishment in a
location in which a massage establishment has been closed due
to criminal activity.
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FISCAL EFFECT : According to the Assembly Appropriations
Committee, potential minor, absorbable increased enforcement
costs to CAMTC.
COMMENTS : The author provided the following rationale for the
bill's changes to statutes governing the CAMTC, This bill
defines "operator" as someone who owns or manages a business.
Under current law, cities and counties can conduct background
checks of non-certified owners of massage businesses. Due to
the fact that often the owner is not on site or involved in
operations, city attorneys have requested the right to
investigate a person who has substantial authority over the
operation of the establishment, such as hiring and firing of
certified massage professionals.
This bill allows education to be "250 hours or the credit unit
equivalent" and "500 hours or the credit unit equivalent." The
United States Department of Education has issued new rules for
recognizing school credits issued. Currently, CAMTC converts
credits to hours but some states have recognized in rules that
they will accept both. California schools have suggested that
CAMTC do the same to avoid confusion regarding student financial
aid.
This bill adds a requirement that a person be qualified as a
massage practitioner in addition to passing an approved exam.
Current law has a loophole though which a person without any
massage training can qualify for certification by passing an
exam that requires no proof of education. In California, it has
been discovered that people were taking test review preparation
courses on the Internet without any supervised massage
education. To prevent this, CAMTC currently does not recognize
the Massage and Bodywork Licensing Examination (MEBLEx), which
was developed by the Federation of State Massage Therapy Boards
and is currently used by 36 states, the District of Columbia,
Puerto Rico and the Virgin Islands for state licensing purposes
and does not set a requirement for education because each state
(except for California) sets their own standard in order to sit
for the exam. This provision will allow an applicant who has at
least 250 hours of approved education to qualify at the higher
tier by passing an exam, and would allow CAMTC to recognize the
MEBLEx.
This bill specifies that the certificate and ID card are the
SB 1238
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property of CAMTC and shall be surrendered upon suspension or
revocation. This is standard practice for suspended or revoked
certifications and licenses
This bill adds to grounds for immediate suspension of
certification acts of unprofessional conduct based on clear and
convincing evidence of a sexually related crime or felony based
on sworn declarations, which was requested by law enforcement
and the enforcement division of CAMTC.
This bill allows law enforcement or a local government agency to
provide information to CAMTC regarding a certificate holder or
applicant, including the status of a local permit, disciplinary
actions, criminal activity or unprofessional conduct, police
reports and declarations of conduct. A small number of city
attorneys, including from Los Angeles, do not believe that local
governments have the authority to provide information to CAMTC,
resulting in approval of applicants who would otherwise be
denied. All applicants sign an authorization for release of
such information to CAMTC.
This bill adds to the grounds for denial or discipline an
infraction, municipal code violation or liability in an
administrative or civil action that is substantially related to
the practice of massage. It is common to charge relevant crimes
such as solicitation as infractions, civil citations or
municipal code violations. Administrative and civil citations
are alternatives to criminal proceedings against a person or
business for violation of the city's laws. Government Code
specifically authorizes cities to make violations of ordinances
subject to a civil fine or penalty instead of the usual criminal
fine. These citations are subject to appeal and ultimately can
be challenged in court. Currently, defense attorneys are
advising clients to plea to infractions to avoid denial or
discipline by CAMTC.
This bill requires that the ID card be in the possession of the
therapist while providing massage and that he or she display
only an original certificate. This is a city request. The
certificate itself does not have a photo. Other professions
require only original certificates or licenses be displayed.
This bill requires certified professionals to provide their full
name and certification number to the public, CAMTC or law
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enforcement upon request. The public has a right to know who
their massage therapist is and whether they are certified.
This bill specifies that the business license fees can be no
higher than the lowest fee charged other professionals. This is
a city request. Currently, most cities have multiple rates for
professionals. In some cases this will result in lower fees.
This bill clarifies that an application for a business license
for businesses in which everyone provided is certified shall be
the same as that required of other individuals and professionals
providing professional services. This is a city request for
clarification.
This bill makes the certified owner responsible for the conduct
of all employees or independent contractors working on the
premises of the business. The current language has a loophole
whereby if anyone providing massage is not certified, the owner
cannot be held responsible for the conduct of those providing
massage on the premises.
This bill allows the owner/operator background check to be 10
years and include live scan and criminal background check. If
the owner background check results in findings of history
relevant to owning or management of a massage business, certain
provisions do not apply. Several city attorneys interpret
current language as prohibiting checking 10 years work and home
address history (as CAMTC does on the applicant for
certification) or including a criminal background check and live
scan. The law does not currently allow a city or county to
prevent a person from opening or operating a massage business as
there are no consequences should the background investigation
reveal offenses substantially related to the operation of a
massage business.
This bill states that local jurisdictions have the authority to
restrict the ability of a new massage business to open in any
location in which a massage business has been closed for
criminal activity. This is a city request. It is common for
illicit businesses to change ownership and continue the same
type of business. Nuisance abatement, which prohibits any use
of the site for one year, is costly and burdensome on the city
and county. The revolving door of illicit businesses is a huge
problem for cities and counties.
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SB 731 (Oropeza), Chapter 384, Statutes of 2008, created
voluntary statewide certification of massage therapists by the
Massage Therapy Organization (MTO). 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
certification allows for work in multiple California locations
without the need for multiple permits or fees.
The MTO was renamed the CAMTC by the organization. CAMTC
evaluates the qualifications of massage professionals and issues
certifications in California. There are two levels of
certification, massage therapist and massage practitioner, each
with different educational requirements. If a certificate
holder violates terms of certification, CAMTC can suspend or
revoke their certification. Although California law grants
title protection, there is no defined scope of practice for
massage professionals. Scope of practice questions therefore
fall under what insurance providers will cover in the event of a
claim and what falls outside the exclusive scope of practice of
licensed health care professions.
Local cities and counties cannot require local massage permits
of CAMTC certificate holders, but they can require permits
dealing with reasonable health and safety issues. They will also
generally require a business license of the business owner,
independent contractor, or tenant.
Analysis Prepared by : Elissa Silva / B.,P. & C.P. / (916)
319-3301
FN: 0005035