Amended in Assembly May 31, 2013

Amended in Assembly May 13, 2013

Amended in Assembly May 1, 2013

Amended in Assembly April 15, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1147

Introduced by Assembly Member Gomez

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(Coauthor: Assembly Member Muratsuchi)

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February 22, 2013

An act to amend Sections begin delete 4601 end delete begin insert 4601, 4603, 4612, end insert and begin delete 4612 end delete begin insert 4613 end insert of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

AB 1147, as amended, Gomez. Massage therapy.

Existing law, until January 1, 2015, provides for the voluntary certification of massage practitioners and massage therapists by the California Massage Therapy Council.

Existing law specifies the requirements for the council to issue to an applicant a certificate as a massage practitioner, including, but not limited to, successfully completing curricula in massage and related subjects totaling a minimum of 250 hours or the credit unit equivalent, as specified.

This bill would additionally require an applicant for a certificate as a massage practitioner to pass a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the council.

Existing law specifies the requirements for the council to issue to an applicant a certificate as a massage therapist. Among these requirements, existing law requires an applicant to either (1) successfully complete a minimum of 500 hours, or the credit unit equivalent, of curricula in massage and related subjects, with at least 250 hours being from approved schools, or (2) successfully complete a minimum of 250 hours of curricula in massage and related subjects at an approved school, with at least 100 hours of instruction in certain subjects, and to pass a massage and bodywork competency assessment examination, as specified, that is approved by the council.

This bill would instead require an applicant for a certificate as a massage therapist to successfully complete a minimum of 250 hours of curricula in massage and related subjects at an approved school, with at least 100 hours of instruction in certain subjects, and to pass the massage and bodywork competency assessment examination as described above.

Existing law authorizes a city, county, or city and county to impose certain requirements on massage establishments or businesses that are the sole proprietorship of an individual certified pursuant to existing state law or that employ or use only persons who are so certified. Existing law authorizes a city, county, or city and county begin delete to, among other things, adopt reasonable health and safety requirements, as specified, pertaining to those massage establishments or businesses, and to require an applicant for a business license to operate a massage business or establishment to fill out an application that requests relevant information, as specified end delete begin insert to charge a massage business or establishment a business licensing fee that is not higher than the lowest fee applied to other individuals and businesses providing professional services, as specified end insert . begin insert Existing law also authorizes a city, county, or city and county to enact ordinances, regulations, rules, requirements, and restrictions applicable to the massage establishments or businesses described above, provided that these local requirements are not different from requirements that are uniformly applied to all individuals and businesses providing professional services, as specified, except as provided. end insert

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This bill would instead authorize a city, county, or city and county to charge a business licensing fee that shall not exceed the average licensing fee applied to other individuals and businesses that provide professional services, as specified. The bill would authorize a city, county, or city and county to enact ordinances, regulations, rules, requirements, and restrictions applicable to the massage establishments or businesses described above that are owned by an individual or individuals who are certified by the council, as specified, provided that these local requirements are not different from requirements that are uniformly applied to at least one other class of individuals or businesses that provide professional services, as specified, except as provided.

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This bill would authorize a city, county, or city and county to require a massage establishment or business described above to apply for and receive a revocable certificate of registration begin insert prior to commencing the operation of a new massage establishment or business or continuing the operation of an existing massage establishment or business end insert . The bill would authorize a city, county, or city and county to require from an applicant, among other things, copies of specified identification and a statement that the business will only employ or use certified persons to provide massage services and that failure to comply with this provision may result in begin insert the end insert suspension or revocation of, imposition of conditions upon, or action against the certificate of registration. The bill would authorize a city, county, or city and county to require a massage establishment or business to comply with specified local ordinances, regulations, rules, requirements, or restrictions as a condition of granting or maintaining a revocable certificate of registration and would authorize a city, county, or city and county to, at its sole discretion, begin insert deny, end insert suspend, revoke, or impose conditions upon a certificate of registration for begin delete cause end delete begin insert failure to comply with the provisions of an ordinance adopted pursuant to these provisions end insert .

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Existing law specifies certain violations for which the council may deny an application for a certificate or discipline a certificate holder.

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This bill would include among these violations being a sole proprietor who fails to obtain and maintain a certificate of registration, as specified, and being a certificate holder who works at a business that fails to obtain and maintain a certificate of registration and has knowledge for at least 30 days of the failure to maintain, except as provided.

end insert begin insert

Existing law specifies that the provisions of law governing the voluntary certification of massage practitioners and massage therapists shall not restrict or limit the authority of a city, county, or city and county to, among other things, 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.

end insert begin insert

This bill would instead specify that these provisions shall not restrict or limit the authority of a city, county, or city and county to adopt a local ordinance restricting the opening of a new massage establishment in a location, or within 300 feet of a location, in which a massage establishment has been closed due to criminal activity in the past year.

end insert begin insert

This bill would make additional clarifying changes.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 4601 of the Business and Professions
Code is amended to read:

4601.  

(a) The council shall issue a certificate under this chapter
to an applicant who satisfies the requirements of this chapter.

(b) (1) In order to obtain certification as a massage practitioner,
an applicant shall submit a written application and provide the
council with satisfactory evidence that he or she meets all of the
following requirements:

(A) The applicant is 18 years of age or older.

(B) The applicant has successfully completed, at an approved
school, curricula in massage and related subjects, totaling a
minimum of 250 hours or the credit unit equivalent, 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.

(C) The applicant has passed a massage and bodywork
competency assessment examination that meets generally
recognized psychometric principles and standards, and that is
approved by the council. The successful completion of this
examination may have been accomplished before the date the
council is authorized by this chapter to begin issuing certificates.

(D) All fees required by the council have been paid.

(2) New certificates shall not be issued pursuant to this
subdivision after December 31, 2015. Certificates issued pursuant
to this section or subdivision (a) or (c) of Section 4604 on or before
December 31, 2015, shall, after December 31, 2015, be renewed
without any additional educational requirements, provided that the
certificate holder continues to be qualified pursuant to this chapter.

(c) In order to obtain certification as a massage therapist, an
applicant shall submit a written application and provide the council
with satisfactory evidence that he or she meets all of the following
requirements:

(1) The applicant is 18 years of age or older.

(2) The applicant has successfully completed the curricula in
massage and related subjects totaling a minimum of 500 hours or
the credit unit equivalent. Of this 500 hours, a minimum of 250
hours shall be from approved schools. Included in the 250 hours
from approved schools shall be instruction addressing anatomy
and physiology, contraindications, health and hygiene, and business
and ethics, with at least 100 hours of the required 250 hours from
approved schools devoted to these curriculum areas. The remaining
250 hours required may be secured either from approved or
registered schools, or from continuing education providers
approved by, or registered with, the council or the Department of
Consumer Affairs. After December 31, 2015, applicants may only
satisfy the curricula in massage and related subjects from approved
schools.

(3) The applicant has passed a massage and bodywork
competency assessment examination that meets generally
recognized psychometric principles and standards, and that is
approved by the council. The successful completion of this
examination may have been accomplished before the date the
council is authorized by this chapter to begin issuing certificates.

(4) All fees required by the council have been paid.

(d) The council shall issue a certificate to an applicant who
meets the other qualifications of this chapter and holds a current
and valid registration, certification, or license from any other state
whose licensure requirements meet or exceed those defined within
this chapter. The council shall have discretion to give credit for
comparable academic work completed by an applicant in a program
outside of California.

(e) An applicant applying for a massage therapist certificate
shall file with the council a written application provided by the
council, showing to the satisfaction of the council that he or she
meets all of the requirements of this chapter.

(f) Any certification issued under this chapter shall be subject
to renewal every two years in a manner prescribed by the council,
and shall expire unless renewed in that manner. The council may
provide for the late renewal of a certificate.

(g) (1) The council shall have the responsibility to determine
that the school or schools from which an applicant has obtained
the education required by this chapter meet the requirements of
this chapter. If the council has any reason to question whether or
not the applicant received the education that is required by this
chapter from the school or schools that the applicant is claiming,
the council shall investigate the facts to determine that the applicant
received the required education prior to issuing a certificate.

(2) For purposes of paragraph (1) and any other provision of
this chapter for which the council is authorized to receive factual
information as a condition of taking any action, the council shall
have the authority to conduct oral interviews of the applicant and
others or to make any investigation deemed necessary to establish
that the information received is accurate and satisfies any criteria
established by this chapter.

(h) The certificate issued pursuant to this chapter, as well as
any identification card issued by the council, shall be surrendered
to the council by any certificate holder whose certificate has been
suspended or revoked.

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begin insert SEC. 2. end insert   

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begin insert Section 4603 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

4603.  

It is a violation of this chapter for a certificate holder to
commit, and the council may deny an application for a certificate
or discipline a certificate holder for, any of the following:

(a) Unprofessional conduct, including, but not limited to, denial
of licensure, revocation, suspension, restriction, or any other
disciplinary action against a certificate holder by another state or
territory of the United States, by any other government agency, or
by another California health care professional licensing board. A
certified copy of the decision, order, or judgment shall be
conclusive evidence of these actions.

(b) Procuring a certificate by fraud, misrepresentation, or
mistake.

(c) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate,
any provision or term of this chapter or any rule or bylaw adopted
by the council.

(d) Conviction of any felony, misdemeanor, infraction, or
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.

(e) Impersonating an applicant or acting as a proxy for an
applicant in any examination referred to under this chapter for the
issuance of a certificate.

(f) Impersonating a certified practitioner or therapist, or
permitting or allowing an uncertified person to use a certificate.

(g) Committing any fraudulent, dishonest, or corrupt act that is
substantially related to the qualifications or duties of a certificate
holder.

(h) Committing any act punishable as a sexually related crime.

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(i) Being a sole proprietor who fails to obtain and maintain a
certificate of registration as required by an ordinance adopted
pursuant to subdivision (e) of Section 4612.

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(j) Being a certificate holder who works at a business that fails
to obtain and maintain a certificate of registration as required by
an ordinance adopted pursuant to subdivision (e) of Section 4612
and who has knowledge for at least 30 days of that failure. A
certificate holder shall not be subject to discipline for a violation
of this subdivision if the business is making a good faith effort to
obtain or reinstate the certificate of registration.

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begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 4612 of the Business and Professions Code is
amended to read:

4612.  

(a) (1) The holder of a certificate issued pursuant to
this chapter shall have the right to practice massage, consistent
with this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section, to engage
in that practice.

(2)  begin delete Notwithstanding any other provision of law, a end delete begin insert A end insert city, county,
or city and county shall not enact an ordinance that requires a
license, permit, or other authorization to provide massage for
compensation by an individual who is certified pursuant to this
chapter and who is practicing consistent with the qualifications
established by his or her certification, or by a massage business
or massage establishment that employs or uses only persons who
are certified pursuant to this chapter to provide massage for
compensation begin insert , except as provided in this section end insert . No provision of
any ordinance enacted by a city, county, or city and county that is
in effect before the effective date of this chapter, and that requires
a license, permit, or other authorization to provide massage for
compensation, may be enforced against an individual who is
certified pursuant to this chapter or against a massage business or
massage establishment that employs or uses only persons who are
certified pursuant to this chapter to provide massage for
compensation.

(3) Except as provided in subdivision (b), nothing in this section
shall be interpreted to prevent a city, county, or city and county
from adopting or enforcing any local ordinance that provides for
reasonable health and safety requirements for massage
establishments or businesses. Subdivision (b) shall not apply to
any massage establishment or business that employs or uses
persons to provide massage services who are not certified pursuant
to this chapter.

(b) (1) This subdivision shall apply only to massage
establishments or businesses that are sole proprietorships, where
the sole proprietor is certified pursuant to this chapter, and to
massage establishments or businesses that employ or use only
persons certified pursuant to this chapter to provide massage
services. For purposes of this subdivision, a sole proprietorship is
a business where the owner is the only person employed by that
business to provide massage services.

(2) (A) Any massage establishment or business described in
paragraph (1) shall maintain on its premises evidence for review
by local authorities that demonstrates that all persons providing
massage services are certified.

(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (1) to file copies or
provide other evidence of the certificates held by the persons who
are providing massage services at the business.

(3) A city, county, or city and county may charge a massage
business or establishment a business licensing begin delete fee, provided that
the fee shall be no higher than the lowest end delete begin insert fee that shall not exceed
the average licensing end insert fee begin delete that is end delete applied to other individuals and
businesses begin delete providing end delete begin insert that provide end insert professional services, as defined
in subdivision (a) of Section 13401 of the Corporations Code.

(4) Nothing in this section shall prohibit a city, county, or city
and county from enacting ordinances, regulations, rules,
requirements, restrictions, land use regulations, moratoria,
conditional use permits, or zoning requirements applicable to begin delete an
individual certified pursuant to this chapter or to end delete a massage
establishment or business begin delete that uses only individuals who are
certified pursuant to this chapter to provide massage for
compensation, provided that, unless end delete begin insert described in paragraph (1)
that is owned by an individual or individuals certified pursuant to
this chapter. Unless end insert otherwise exempted by this chapter, begin delete these end delete begin insert any end insert
ordinances, regulations, rules, requirements, restrictions, land use
regulations, moratoria, conditional use permits, and zoning
requirements begin insert enacted pursuant to this paragraph end insert shall be no
different than the requirements that are uniformly applied to begin delete all end delete begin insert at
least one end insert other begin insert class of end insert individuals begin delete and end delete begin insert or end insert businesses begin delete providing end delete
begin insert that provide end insert professional services, as defined in subdivision (a) of
Section 13401 of the Corporations Code. begin delete No end delete begin insert A end insert provision of any
ordinance, regulation, rule, requirement, restriction, land use
regulation, moratoria, conditional use permit, or zoning requirement
enacted by a city, county, or city and county that is in effect before
the effective date of this chapter, and that is inconsistent with this
paragraph, begin delete may end delete begin insert shall not end insert be enforced against begin delete an individual who
is certified pursuant to this chapter or against a massage business
or massage establishment that uses only individuals who are
certified pursuant to this chapter to provide massage for
compensation end delete begin insert a massage establishment or business described in
paragraph (1) that is owned by an individual or individuals
certified pursuant to this chapter end insert .

(5) Local building code or physical facility requirements
applicable to massage establishments or businesses 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 (A) require unlocked doors when there is no staff available to
ensure security for clients and massage staff who are behind closed
doors, or (B) require windows that provide a view into massage
rooms that interfere with the privacy of clients of the massage
business.

(6) A city, county, or city and county may adopt reasonable
health and safety requirements with respect to massage
establishments or businesses, including, but not limited to,
requirements for cleanliness of massage rooms, towels and linens,
and reasonable attire and personal hygiene requirements for persons
providing massage services, provided that nothing in this paragraph
shall be interpreted to authorize adoption of local ordinances that
impose additional qualifications, such as medical examinations,
background checks, or other criteria, upon any person certified
pursuant to this chapter.

(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:

(A) Requiring an applicant for a business license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information, as long as
the information requested is the same as that required of other
individuals and professionals providing professional services as
defined in subdivision (a) of Section 13401 of the Corporations
Code.

(B) Making reasonable investigations into the information so
provided.

(C) Denying or restricting a business license if the applicant
has provided materially false information.

begin insert

(D) Enacting ordinances, regulations, rules, requirements,
restrictions, moratoria, and conditional use permits to regulate
massage businesses or establishments that fail to obtain or
maintain a certificate of registration as required by an ordinance
adopted pursuant to subdivision (e).

end insert

(c) An owner or operator of a massage business or establishment
who is certified pursuant to this chapter shall be responsible for
the conduct of all employees or independent contractors working
on the premises of the business. Failure to comply with this chapter
may result in revocation of the owner’s or operator’s certificate in
accordance with Section 4603. Nothing in this section shall
preclude a local ordinance from authorizing suspension, revocation,
or other restriction of a license or permit issued to a massage
establishment or business if violations of this chapter, or of the
local ordinance, occur on the business premises.

(d) Nothing in this section shall preclude a city, county, or city
and county from adopting a local ordinance that is applicable to
massage businesses or establishments described in paragraph (1)
of subdivision (b) and that does either of the following:

(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health
and safety requirements.

(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management,
or convey the business to another person.

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(e) Nothing in this chapter shall be construed to preclude a city,
county, or city and county from requiring a background check of
an owner or operator of a massage establishment who owns 5
percent or more of a massage business or massage establishment
and who is not certified pursuant to this chapter. The background
check may include, but is not limited to, a criminal background
check, including requiring submission of fingerprints for a state
and federal criminal background check, submission of an
application that requires the applicant to state information,
including, but not limited to, the applicant’s business, occupation,
and employment history for the 10 years preceding the date of
application, the inclusive dates of same, and the name and address
of any massage business or other like establishment owned or
operated by any person who is subject to the background check
requirement of this subdivision. If a noncertified owner’s or
operator’s background check results in a finding that the city,
county, or city and county determines is relevant to owning or
operating a massage establishment, then the provisions of
subdivisions (a) and (b) shall not apply to that establishment and
the city, county, or city and county may regulate that establishment
in any manner it deems proper that is in accordance with the law.

(f)

end delete

begin insert (e) end insert  (1) Nothing in this chapter shall preclude a city, county, or
city and county from including a provision in a local ordinance
requiring the owner or owners of a massage establishment or
business described in paragraph (1) of subdivision (b) to apply for
and receive a revocable certificate of registration begin insert prior to
commencing the operation of a new massage establishment or
business, or continuing the operation of an existing massage
establishment or business end insert .

(2) As part of the application for a certificate of registration, a
city, county, or city and county may require the following from
an applicant:

(A) The full true name under which the massage establishment
or business will be conducted.

(B) The present or proposed address where the massage
establishment or business will be conducted.

(C) The full true legal name and mailing address of the owner
or owners of the massage establishment or business.

(D) A copy of a certificate, or any other evidence of certification,
issued to each person pursuant to this chapter who will be providing
massage services at the massage establishment or business.

(E) A copy of a photographic government-issued identification
card of the owner or owners of the massage establishment or
business.

(F) A statement that the business will only employ or use
persons certified pursuant to this chapter to provide massage
services and that failure to comply with this provision may result
in begin insert the end insert suspension or revocation of, imposition of conditions upon,
or action against the certificate of registration.

(G) A statement that the applicant will provide written
notification of any changes to the original application within 10
days of that change occurring.

(H) Authorization for the city, county, or city and county to
investigate the truth of the information contained in the application.

(I) The payment of a fee to conduct a background check pursuant
to begin delete subdivision (e) end delete begin insert Section 4613 end insert if the owner or owners of the
massage establishment or business applying for the certificate of
registration are not certified pursuant to this chapter and own 5
percent or more of the massage establishment or business.

begin insert

(J) A copy of any lease or rental agreement executed by the
applicant for purposes of operating the massage establishment or
business.

end insert

(3) A city, county, or city and county may require a massage
establishment or business to comply with any applicable local
ordinance, regulation, rule, requirement, or restriction that complies
with subdivision (b) or (d) as a condition of granting or maintaining
a revocable certificate of registration, including, but not limited
to, those provisions pertaining to health and safety.

(4) A city, county, or city and county may exempt certain classes
of persons or businesses from compliance with the requirements
for a certificate of registration.

(5) A city, county, or city and county may make the certificate
of registration nontransferable.

(6) A city, county, or city and county may, at its sole discretion,
begin insert deny, end insert suspend, revoke, impose conditions upon, or otherwise act
against a certificate of registration for begin delete cause end delete begin insert failure to comply with
the provisions of an ordinance adopted pursuant to this subdivision end insert .

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 4613 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

4613.  

(a) Nothing in this chapter shall restrict or limit in any
way the authority of a city, county, or city and county to adopt a
local ordinance governing any person who is not certified pursuant
to this chapter.

(b) Nothing in this chapter is intended to affect the practice
rights of any person licensed by the state to practice or perform
any functions or services pursuant to that license.

(c) Nothing in this chapter shall be construed to restrict or limit
in any way the authority of a city, county, or city and county to
adopt a local ordinance restricting the opening of a new massage
establishment in a begin delete location end delete begin insert location, or within 300 feet of a
location, end insert in which a massage establishment has been closed due
to criminal activity begin insert in the past year end insert .

begin insert

(d) Nothing in this chapter shall be construed to preclude a city,
county, or city and county from requiring a background check of
an owner or operator of a massage establishment who owns 5
percent or more of a massage business or massage establishment
and who is not certified pursuant to this chapter. The background
check may include, but is not limited to, a criminal background
check, including requiring submission of fingerprints for a state
and federal criminal background check, and submission of an
application that requires the applicant to provide information,
including, but not limited to, the applicant’s business, occupation,
and employment history for the 10 years preceding the date of
application, the inclusive dates of same, and the name and address
of any massage business or other like establishment owned or
operated by any person who is subject to the background check
requirement of this subdivision. If a noncertified owner’s or
operator’s background check discloses information that the city,
county, or city and county determines is relevant to owning or
operating a massage establishment, the city, county, or city and
county may regulate that establishment in any manner it deems
proper that is in accordance with the law.

end insert