Amended in Senate August 22, 2014

Amended in Senate August 20, 2014

Amended in Senate August 4, 2014

Amended in Senate July 1, 2014

Amended in Senate June 17, 2014

Amended in Senate April 23, 2014

Amended in Assembly January 14, 2014

Amended in Assembly January 6, 2014

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 BillNo. 1147


Introduced by Assembly Members Bonilla, Gomez, and Holden

(Coauthors: Assembly Members Chau, Gatto,begin delete Muratsuchi, and Skinnerend deletebegin insert and Muratsuchiend insert)

February 22, 2013


An act to amend Section 460 of, and to add and repeal Chapter 10.5 (commencing with Section 4600) of Division 2 of, the Business and Professions Code, and to amend Section 51034 of the Government Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

AB 1147, as amended, Bonilla. 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 or massage therapist. 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 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.

This bill would reenact, revise, and recast these provisions to, among other things, establish an interim board of directors to govern the council until September 15, 2015, and provide for the appointment of a new board of directors consisting of 13 members, as specified, whose 4-year terms would begin on that date. The bill would authorize the board to establish fees reasonably related to the costs of providing services and performing its duties, not to exceed $300. The bill would require the board to provide at least 90 days’ advance notice prior to holding a meeting to vote upon a proposal to increase the certification fees, as specified, except as provided. The bill would also require the board to notify certificate holders of a board action that increases those fees.

The bill would discontinue the issuance of new massage practitioner certificates after January 1, 2015, except as provided, but would authorize the renewal of massage practitioner certificates issued prior to January 1, 2015. The bill would require that all certificates issued pursuant to these provisions be subject to renewal every 2 years, except as provided. The bill would require the council to develop policies, procedures, rules, or bylaws governing the approval and unapproval of schools that provide education required for certification, as specified.

The bill would authorize the council to deny an application for a certificate, or to discipline a certificate holder for a violation of these provisions, as specified. The bill would require the board to exercise its denial or discipline authority by means of fair and reasonable procedures that, among other things, provide the applicant or certificate holder with notice and an opportunity to be heard, as specified. The bill would provide that unprofessional conduct in violation of these provisions includes, among other things, engaging in sexually suggestive advertising related to massage services and engaging in sexual activity while providing massage services for compensation.

The bill would, notwithstanding any other law, prohibit a city, county, or city and county from enacting or enforcing an ordinance that conflicts with these provisions or other corresponding specified provisions. However, the bill would authorize a city, county, or city and county to adopt or enforce local ordinances that govern zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a licensed or certified healing arts professional, including a certified massage therapist. The bill would also make clarifying and conforming changes regarding local regulation of massage establishments or businesses.

The bill would authorize a court to issue an injunction or to provide any other relief it deems appropriate for violations of these provisions, as specified. The bill would provide that the powers and duties of the council are subject to review by the appropriate committees of the Legislature and would require the council to provide a specified report to these committees on or before June 1, 2016.

The bill would provide that these provisions are issues of statewide concern, and therefore applicable statewide. The bill would also provide that its provisions are severable.

The bill would repeal these provisions on January 1, 2017.

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

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

P3    1

SECTION 1.  

Section 460 of the Business and Professions Code
2 is amended to read:

3

460.  

(a) No city, county, or city and county shall prohibit a
4person or group of persons, authorized by one of the agencies in
5the Department of Consumer Affairs or an entity established
6pursuant to this code by a license, certificate, or other means to
7engage in a particular business, from engaging in that business,
8occupation, or profession or any portion of that business,
9occupation, or profession.

P4    1(b) (1) No city, county, or city and county shall prohibit a
2healing arts professional licensed with the state under Division 2
3(commencing with Section 500) or licensed or certified by an entity
4established pursuant to this code from engaging in any act or
5performing any procedure that falls within the professionally
6recognized scope of practice of that licensee.

7(2) This subdivision shall not be construed to prohibit the
8enforcement of a local ordinance in effect prior to January 1, 2010,
9related to any act or procedure that falls within the professionally
10recognized scope of practice of a healing arts professional licensed
11under Division 2 (commencing with Section 500).

12(c) This section shall not be construed to prevent a city, county,
13or city and county from adopting or enforcing any local ordinance
14governing zoning, business licensing, or reasonable health and
15safety requirements for establishments or businesses of a healing
16arts professional licensed under Division 2 (commencing with
17Section 500) or licensed or certified by an entity established under
18this code or a person or group of persons described in subdivision
19(a).

20(d) Nothing in this section shall prohibit any city, county, or
21city and county from levying a business license tax solely for
22revenue purposes, nor any city or county from levying a license
23tax solely for the purpose of covering the cost of regulation.

24

SEC. 2.  

Chapter 10.5 (commencing with Section 4600) is added
25to Division 2 of the Business and Professions Code, to read:

26 

27Chapter  10.5. Massage Therapy Act
28

 

29

4600.  

This chapter shall be known and may be cited as the
30Massage Therapy Act. Whenever a reference is made to the
31Massage Therapy Act by any statute, it shall be construed to refer
32to this chapter.

33

4600.5.  

(a) It is the intent of the Legislature that this act enable
34consumers and local governments to more easily identify certified
35massage professionals, provide for consistent statewide certification
36and oversight of massage professionals, ensure that schools
37approved by the council that are teaching massage provide a high
38level of training, assist local governments and law enforcement in
39meeting their duty to maintain the highest standards of conduct in
40massage establishments by vetting and disciplining certificate
P5    1holders, provide for a self-funded nonprofit oversight body to
2certify massage professionals, and ensure full compliance with,
3and execution of, the requirements of this act.

4(b) It is the intent of the Legislature that broad control over land
5use in regulating massage establishments be vested in local
6governments so that they may manage those establishments in the
7best interests of the individual community, and that the
8requirements and practice of the profession of massage therapy
9remain a matter of statewide concern, regulation, and oversight.

10(c) It is the intent of the Legislature that local governments
11impose and enforce only reasonable and necessary fees and
12regulations, in keeping with the requirements of existing law and
13being mindful of the need to protect legitimate business owners
14and massage professionals, particularly sole providers, during the
15transition period after this act becomes law and thereafter for the
16sake of developing a healthy and vibrant local economy.

17(d) It is the intent of the Legislature that local governments, law
18enforcement, nonprofit stakeholders, the massage industry, and
19massage professionals work together going forward to improve
20communication and share information to further increase the value
21of statewide certification, to collaborate in the implementation of
22this act, and to develop a model ordinance reflecting best practices
23in massage regulation for cities and counties to adopt that will
24respect local control, patient privacy, and the dignity of the
25profession of massage therapy.

26

4601.  

As used in this chapter, the following terms shall have
27the following meanings:

28(a) “Approved school” or “approved massage school” means a
29school approved by the council that meets minimum standards for
30training and curriculum in massage and related subjects, that meets
31any of the following requirements, and that has not been otherwise
32unapproved by the council:

33(1) Is approved by the Bureau for Private Postsecondary
34Education.

35(2) Is approved by the Department of Consumer Affairs.

36(3) Is an institution accredited by the Accrediting Commission
37for Senior Colleges and Universities or the Accrediting
38Commission for Community and Junior Colleges of the Western
39Association of Schools and Colleges and that is one of the
40following:

P6    1(A) A public institution.

2(B) An institution incorporated and lawfully operating as a
3nonprofit public benefit corporation pursuant to Part 2
4(commencing with Section 5110) of Division 2 of Title 1 of the
5Corporations Code, and that is not managed by any entity for profit.

6(C) A for-profit institution.

7(D) An institution that does not meet all of the criteria in
8subparagraph (B) that is incorporated and lawfully operating as a
9nonprofit public benefit corporation pursuant to Part 2
10(commencing with Section 5110) of Division 2 of Title 1 of the
11Corporations Code, that has been in continuous operation since
12April 15, 1997, and that is not managed by any entity for profit.

13(4) Is a college or university of the state higher education system,
14as defined in Section 100850 of the Education Code.

15(5) Is a school requiring equal or greater training than what is
16required pursuant to this chapter and is recognized by the
17corresponding agency in another state or accredited by an agency
18recognized by the United States Department of Education.

19(b) “Certificate” means a valid certificate issued by the council
20pursuant to this chapter.

21(c) “Compensation” means a payment, loan, advance, donation,
22contribution, deposit, or gift of money, or anything of value.

23(d) “Council” means the California Massage Therapy Council
24created pursuant to this chapter, which shall be a nonprofit
25organization exempt from taxation under Section 501(c)(3) of Title
2626 of the United States Code.

27(e) “Massage” means the scientific manipulation of the soft
28tissues. For purposes of this chapter, the terms “massage” and
29“bodywork” shall have the same meaning.

30(f) “Massage establishment” or “establishment” means a fixed
31 location where massage is performed for compensation, excluding
32those locations where massage is only provided on an out-call
33basis.

34(g) “Massage practitioner” means a person who is certified by
35the council pursuant to Section 4604.2 and who administers
36massage for compensation.

37(h) “Massage therapist” means a person who is certified by the
38council under Section 4604 and who administers massage for
39compensation.

P7    1(i) “Sole provider” means a massage business where the owner
2owns 100 percent of the business, is the only person who provides
3massage services for compensation for that business pursuant to
4a valid and active certificate issued in accordance with this chapter,
5and has no other employees or independent contractors.

6

4602.  

(a) The California Massage Therapy Council, as defined
7in subdivision (d) of Section 4601, is hereby established and shall
8carry out the responsibilities and duties set forth in this chapter.

9(b) The council may take any reasonable actions necessary to
10carry out the responsibilities and duties set forth in this chapter,
11including, but not limited to, hiring staff, entering into contracts,
12and developing policies, procedures, rules, and bylaws to
13implement this chapter.

14(c) The council may require background checks for all
15employees, contractors, volunteers, and board members as a
16condition of their employment, formation of a contractual
17relationship, or participation in council activities.

18(d) The council shall issue a certificate to an individual applicant
19who satisfies the requirements of this chapter for that certificate.

20(e) The council is authorized to determine whether the
21information provided to the council in relation to the certification
22of an applicant is true and correct and meets the requirements of
23this chapter. If the council has any reason to question whether the
24information provided is true or correct or meets the requirements
25of this chapter, the council is authorized to make any investigation
26it deems necessary to establish that the information received is
27accurate and satisfies any criteria established by this chapter. The
28applicant has the burden to prove that he or she is entitled to
29certification.

30(f) Until September 15, 2015, the council shall be governed by
31a board of directors comprised of two representatives selected by
32each professional society, association, or other entity, which
33membership is comprised of massage therapists and that chooses
34to participate in the council. To qualify, a professional society,
35association, or other entity shall have a dues-paying membership
36in California of at least 1,000 individuals for the last three years
37and shall have bylaws that require its members to comply with a
38code of ethics. The board of directors shall also include each of
39the following persons:

P8    1(1) One member selected by each statewide association of
2private postsecondary schools incorporated on or before January
31, 2010, which member schools have together had at least 1,000
4graduates in each of the previous three years from massage therapy
5programs that meet the approval standards set forth in subdivision
6(a) of Section 4601, unless a qualifying association chooses not
7to exercise this right of selection.

8(2) One member selected by the League of California Cities,
9unless that entity chooses not to exercise this right of selection.

10(3) One member selected by the California State Association
11of Counties, unless that entity chooses not to exercise this right of
12selection.

13(4) One member selected by the Director of Consumer Affairs,
14unless that entity chooses not to exercise this right of selection.

15(5) One member appointed by the Office of the Chancellor of
16the California Community Colleges, unless that entity chooses not
17to exercise this right of selection. The person appointed, if any,
18shall not be part of any massage therapy certificate or degree
19program.

20(6) The council’s bylaws shall establish a process for appointing
21other professional directors to the council who have knowledge
22of the massage industry or can bring needed expertise to the
23operation of the council for purposes of complying with Section
244603.

25(g) At 12 p.m. Pacific standard time on September 15, 2015,
26the term of each member of the board of directors established
27pursuant to subdivision (f) shall terminate, and the terms of 13
28new members of the board of directors who shall be chosen in the
29following manner, shall begin:

30(1) One member shall be a representative of the League of
31California Cities, unless that entity chooses not to exercise this
32right to appoint.

33(2) One member shall be a representative of the California Police
34Chiefs Association, unless that entity chooses not to exercise this
35right to appoint.

36(3) One member shall be a representative of the California State
37Association of Counties, unless that entity chooses not to exercise
38this right to appoint.

39(4) One member shall be a representative of an “anti-human
40trafficking” organization to be determined by the council. This
P9    1organization shall appoint one member, unless the organization
2chooses not to exercise this right to appoint.

3(5) One member shall be appointed by the Office of the
4Chancellor of the California Community Colleges, unless that
5office chooses not to exercise this right to appoint.

6(6) One member shall be a member of the public appointed by
7the Director of the Department of Consumer Affairs, unless the
8director chooses not to exercise this right to appoint.

9(7) One member shall be appointed by the California Association
10of Private Postsecondary Schools, unless that entity chooses not
11to exercise this right to appoint.

12(8) One member shall be appointed by the American Massage
13Therapy Association, California Chapter, who shall be a
14California-certified massage therapist or massage practitioner who
15is a California resident and who has been practicing massage for
16at least three years, unless that entity chooses not to exercise this
17right to appoint.

18(9) One member shall be a public health official representing a
19city, county, city and county, or state health department, to be
20determined by the council. The city, county, city and county, or
21state health department chosen, shall appoint one member unless
22that entity chooses not to exercise this right to appoint.

23(10) (A) One member shall be a certified massage therapist or
24a certified massage practitioner who is a California resident who
25has practiced massage for at least three years prior to the
26appointment, selected by a professional society, association, or
27other entity which membership is comprised of massage therapist
28professionals, and that chooses to participate in the council. To
29qualify, a professional society, association, or other entity shall
30have a dues-paying membership in California of at least 1,000
31individuals, have been established since 2000, and shall have
32bylaws that require its members to comply with a code of ethics.

33(B) If there is more than one professional society, association,
34or other entity that meets the requirements of subparagraph (A),
35the appointment shall rotate based on a four-year term between
36each of the qualifying entities. The qualifying entity shall maintain
37its appointment authority during the entirety of the four-year term
38during which it holds the appointment authority. The order in
39which a qualifying professional society, association, or other entity
40has the authority to appoint shall be determined by alphabetical
P10   1order based on the full legal name of the entity as of January 1,
22014.

3(11) The members appointed to the board in accordance with
4paragraphs (1) to (10), inclusive, shall appoint three additional
5members, at a duly held board meeting in accordance with the
6board’s bylaws. One of those appointees shall be an attorney
7licensed by the State Bar of California, who has been practicing
8law for at least three years and who at the time of appointment
9represents a city in the state. One of those appointees shall represent
10a massage business entity that has been operating in the state for
11at least three years. The council shall establish in its bylaws a
12process for appointing an additional member, provided that the
13member has knowledge of the massage industry or can bring
14needed expertise to the operation of the council for purposes of
15complying with Section 4603.

16(h) Board member terms shall be for four years.

17(i) The board of directors shall establish fees reasonably related
18to the cost of providing services and carrying out its ongoing
19responsibilities and duties. Initial and renewal fees for certificates
20shall be in an amount sufficient to support the functions of the
21council in the administration of this chapter, but in no event shall
22exceed three hundred dollars ($300). The renewal fee shall be
23reassessed biennially by the board.

24(j) The meetings of the council shall be subject to the rules of
25the Bagley-Keene Open Meeting Act (Article 9 (commencing with
26Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
27the Government Code). The board may adopt additional policies
28and procedures that provide greater transparency to certificate
29holders and the public than required by the Bagley-Keene Open
30Meeting Act.

31(k) Prior to holding a meeting to vote upon a proposal to increase
32the certification fees, the board shall provide at least 90 days’
33notice of the meeting, including posting a notice on the council’s
34Internet Web site unless at least two-thirds of the board members
35concur that there is an active threat to public safety and that voting
36at a meeting without prior notice is necessary. However, the board
37shall not waive the requirements of subdivision (j).

38(l) If the board approves an increase in the certification fees,
39the council shall update all relevant areas of its Internet Web site
P11   1and notify all certificate holders and affected applicants by email
2within 14 days of the board’s action.

3

4603.  

Protection of the public shall be the highest priority for
4the council in exercising its certification and disciplinary authority,
5and any other functions. Whenever the protection of the public is
6inconsistent with other interests sought to be promoted, the
7protection of the public shall be paramount.

8

4604.  

(a) In order to obtain certification as a massage therapist,
9an applicant shall submit a written application and provide the
10council with satisfactory evidence that he or she meets all of the
11following requirements:

12(1) The applicant is 18 years of age or older.

13(2) The applicant has successfully completed the curricula in
14massage and related subjects totaling a minimum of 500 hours, or
15the credit unit equivalent, that incorporates appropriate school
16assessment of student knowledge and skills.

17(A) Of the 500 hours, a minimum of 100 hours of instruction
18shall address anatomy and physiology, contraindications, health
19 and hygiene, and business and ethics.

20(B) All of the 500 hours shall be from schools approved by the
21council.

22(3) The applicant has passed a massage and bodywork
23competency assessment examination that meets generally
24recognized psychometric principles and standards and that is
25approved by the council. The successful completion of this
26examination may have been accomplished before the date the
27council is authorized by this chapter to begin issuing certificates.

28(4) The applicant has successfully passed a background
29investigation pursuant to Section 4606, and has not violated any
30of the provisions of this chapter.

31(5) All fees required by the council have been paid.

32(6) The council may issue a certificate to an applicant who meets
33the qualifications of this chapter if he or she holds a current and
34valid registration, certification, or license from any other state
35whose licensure requirements meet or exceed those defined within
36this chapter. If an applicant has received education at a school that
37is not approved by the council, the council shall have the discretion
38to give credit for comparable academic work completed by an
39applicant in a program outside of California.

P12   1(b) A certificate issued pursuant to this chapter and any
2identification card issued by the council shall be surrendered to
3the council by any certificate holder whose certificate is suspended
4or revoked.

5

4604.1.  

(a) The council shall not accept applications to issue
6any new certificates to practice as a certified massage practitioner
7on or after January 1, 2015.

8(b) Certificates to practice as a certified massage practitioner
9for applications accepted prior to January 1, 2015, may be renewed
10without any additional educational requirements.

11(c) A massage practitioner certificate and any identification card
12issued by the council, shall be surrendered to the council by any
13certificate holder whose certificate is suspended or revoked.

14

4604.2.  

(a) A person who was issued a conditional certificate
15to practice as a massage practitioner shall, within five years of
16being issued the conditional certificate by the council, complete
17and report to the council the completion of, at least 30 hours of
18additional education per year from approved schools or from
19continuing education providers approved by the council, until he
20or she has completed a total of at least 250 hours of education.

21(b) A conditional certificate issued to any person pursuant to
22this section shall immediately be nullified, without need for further
23action by the council, if proof of completion of the requirements
24specified in subdivision (a) is not filed with the council within the
25time period specified in subdivision (a).

26(c) Notwithstanding subdivision (a) of Section 4604.1, the
27council shall issue a new certificate to practice as a massage
28practitioner to a person that successfully completes the
29requirements described in subdivision (a).

30

4605.  

Except as otherwise provided, a certification issued
31pursuant to this chapter shall be subject to renewal every two years
32in the manner prescribed by the council. A certificate issued by
33the council shall expire after two years unless renewed as
34prescribed. The council may provide for the late renewal of a
35certificate.

36

4606.  

(a) Prior to issuing a certificate to an applicant, or
37designating a custodian of records, the council shall require the
38applicant or the custodian of records candidate to submit fingerprint
39images as directed by the council and in a form consistent with
40the requirements of this section.

P13   1(b) The council shall submit the fingerprint images and related
2information to the Department of Justice for the purpose of
3obtaining information as to the existence and nature of a record of
4state and federal level convictions and of state and federal level
5arrests for which the Department of Justice establishes that the
6applicant or candidate was released on bail or on his or her own
7recognizance pending trial.

8(c) Requests for federal level criminal offender record
9information received by the Department of Justice pursuant to this
10section shall be forwarded to the Federal Bureau of Investigation
11by the Department of Justice. The Department of Justice shall
12review the information returned from the Federal Bureau of
13Investigation, and shall compile and disseminate a fitness
14determination regarding the applicant or candidate to the council.
15The Department of Justice shall provide information to the council
16pursuant to subdivision (p) of Section 11105 of the Penal Code.

17(d) The Department of Justice and the council shall charge a
18fee sufficient to cover the cost of processing the request for state
19and federal level criminal offender record information.

20(e) The council shall request subsequent arrest notification
21service from the Department of Justice, as provided under Section
2211105.2 of the Penal Code, for all applicants for certification or
23custodian of records candidates for whom fingerprint images and
24related information are submitted to conduct a search for state and
25federal level criminal offender record information.

26(f) The council is authorized to receive arrest notifications and
27other backgroundbegin delete materialend deletebegin insert materialsend insert about applicants and
28certificate holders from a city, county, or city and county.

29

4607.  

The council may discipline an owner or operator of a
30massage business or establishment who is certified pursuant to
31this chapter for the conduct of all individuals providing massage
32for compensation on the business premises.

33

4608.  

In addition to the other requirements of this chapter, a
34certificate holder shall:

35(a) Display his or her original certificate wherever he or she
36provides massage for compensation. A certificate holder shall have
37his or her identification card in his or her possession while
38providing massage services for compensation.

39(b) Provide his or her full name and certificate number upon
40the request of a member of the public, the council, or a member
P14   1of law enforcement, or a local government agency charged with
2regulating massage or massage establishments, at the location
3where he or she is providing massage services for compensation.

4(c) Include the name under which he or she is certified and his
5or her certificate number in any and all advertising of massage for
6compensation.

7(d) Notify the council within 30 days of any changes in the
8certificate holder’s home address or the address of any massage
9establishment or other location where he or she provides massage
10for compensation, excluding those locations where massage is
11only provided on an out-call basis. A certificate holder also shall
12notify the council of his or her primary email address, if any, and
13notify the council within 30 days of a change of the primary email
14address.

15

4609.  

(a) It is a violation of this chapter for an applicant or a
16certificate holder to commit any of the following acts, the
17commission of which is grounds for the council to deny an
18application for a certificate or to impose discipline on a certificate
19holder:

20(1) Unprofessional conduct, including, but not limited to, any
21of the following:

22(A) Engaging in sexually suggestive advertising related to
23massage services.

24(B) Engaging in any form of sexual activity on the premises of
25a massage establishment where massage is provided for
26compensation, excluding a residence.

27(C) Engaging in sexual activity while providing massage
28services for compensation.

29(D) Practicing massage on a suspended certificate or practicing
30outside of the conditions of a restricted certificate.

31(E) Providing massage of the genitals or anal region.

32(F) Providing massage of female breasts without the written
33consent of the person receiving the massage and a referral from a
34licensed California health care provider.

35(2) Procuring or attempting to procure a certificate by fraud,
36misrepresentation, or mistake.

37(3) Failing to fully disclose all information requested on the
38application.

P15   1(4) Impersonating an applicant or acting as a proxy for an
2applicant in any examination referred to in this chapter for the
3issuance of a certificate.

4(5) Impersonating a certificate holder, or permitting or allowing
5a noncertified person to use a certificate.

6(6) Violating or attempting to violate, directly or indirectly, or
7assisting in or abetting the violation of, or conspiring to violate,
8any provision of this chapter or any rule or bylaw adopted by the
9council.

10(7) Committing any fraudulent, dishonest, or corrupt act that is
11substantially related to the qualifications or duties of a certificate
12holder.

13(8) Denial of licensure, revocation, suspension, restriction,
14citation, or any other disciplinary action against an applicant or
15certificate holder by another state or territory of the United States,
16by any other government agency, or by another California health
17care professional licensing board. A certified copy of the decision,
18order, judgment, or citation shall be conclusive evidence of these
19actions.

20(9) Being convicted of any felony, misdemeanor, infraction, or
21municipal code violation, or being held liable in an administrative
22or civil action for an act, that is substantially related to the
23qualifications, functions, or duties of a certificate holder. A record
24of the conviction or other judgment or liability shall be conclusive
25evidence of the crime or liability.

26(10) Dressing while engaged in the practice of massage for
27 compensation, or while visible to clients in a massage
28establishment, in any of the following:

29(A) Attire that is transparent, see-through, or substantially
30exposes the certificate holder’s undergarments.

31(B) Swim attire, if not providing a water-based massage
32modality approved by the council.

33(C) A manner that exposes the certificate holder’s breasts,
34buttocks, or genitals.

35(D) A manner that constitutes a violation of Section 314 of the
36 Penal Code.

37(E) A manner that is otherwise deemed by the council to
38constitute unprofessional attire based on the custom and practice
39of the profession in California.

P16   1(11) Committing any act punishable as a sexually related crime
2or being required to register pursuant to the Sex Offender
3Registration Act (Chapter 5.5 (commencing with Section 290) of
4Title 9 of Part 1 of the Penal Code), or being required to register
5as a sex offender in another state.

6(b) The council may deny an application for a certificate for the
7commission of any of the acts described in subdivision (a). The
8council may also discipline a certificate holder, in any manner
9permitted by this chapter, for the commission of any of those acts
10by a certificate holder.

11(c) The council shall deny an application for a certificate, or
12revoke the certificate of a certificate holder, if the applicant or
13certificate holder is required to register pursuant to the Sex
14Offender Registration Act (Chapter 5.5 (commencing with Section
15290) of Title 9 of Part 1 of the Penal Code), or is required to
16register as a sex offender in another state.

17

4610.  

(a) An applicant for a certificate shall not be denied a
18certificate, and a certificate holder shall not be disciplined pursuant
19to this chapter except according to procedures that satisfy the
20requirements of this section. Denial or discipline that is not in
21accord with this section shall be void and without effect.

22(b) The council may discipline a certificate holder by any, or a
23combination, of the following methods:

24(1) Placing the certificate holder on probation, which may
25include limitations or conditions on practice.

26(2) Suspending the certificate and the rights conferred by this
27chapter on a certificate holder for a period not to exceed one year.

28(3) Suspending or staying the disciplinary order, or portions of
29it, with or without conditions.

30(4) Revoking the certificate.

31(5) Taking other action as the council deems proper, as
32authorized by this chapter or policies, procedures, rules, or bylaws
33adopted by the board.

34(c) The council may issue an initial certificate on probation,
35with specific terms and conditions, to any applicant.

36(d) Any denial or discipline shall be decided upon and imposed
37in good faith and in a fair and reasonable manner. Any procedure
38that conforms to the requirements of subdivision (f) is fair and
39reasonable, but a court may also find other procedures to be fair
P17   1and reasonable when the full circumstances of the denial or
2discipline are considered.

3(e) A procedure is fair and reasonable if the procedures specified
4in subdivision (f) or (g) are followed or if all of the following
5apply:

6(1) Denial or discipline shall be based on a preponderance of
7the evidence. In determining the basis for the denial or discipline,
8the council may consider all written documents or statements as
9evidence, but shall weigh the reliability of those documents or
10statements.

11(2) The provisions of the procedure are publicly available on
12the council’s Internet Web site.

13(3) The council provides 15 calendar days prior notice of the
14denial or discipline and the reasons for the denial or discipline.

15(4) The council provides an opportunity for the applicant or
16certificate holder, to be heard, orally or in writing, not less than
17five days before the effective date of the denial or discipline, by
18a person or body authorized to decide whether the proposed denial
19or discipline should go into effect.

20(f)  (1) Notwithstanding any other law, if the council receives
21notice that a certificate holder has been arrested and charges have
22been filed by the appropriate prosecuting agency against the
23certificate holder alleging a violation of subdivision (b) of Section
24647 of the Penal Code or any other offense described in paragraph
25(11) of subdivision (a) of Section 4609, the council shall
26immediately suspend, on an interim basis, the certificate of that
27certificate holder, and take all of the following additional actions:

28(A) Notify the certificate holder at the address last filed with
29the council that the certificate has been suspended and the reason
30for the suspension within 10 business days.

31(B) Provide notification of the suspension by email to the clerk
32or other designated contact of the city, county, or city and county
33in which the certificate holder lives or works, pursuant to the
34council’s records, within 10 business days.

35(C) Provide notification of the suspension by email to any
36establishment or employer, whether public or private, that the
37council has in its records as employing the certificate holder, within
3810 business days.

39(2) Upon notice to the council that the charges described in
40paragraph (1) have resulted in a conviction, the council shall
P18   1permanently revoke the suspended certificate. The council shall
2provide notice to the certificate holder, at the address last filed
3with the council by a method providing delivery confirmation,
4within 10 business days that it has evidence of a valid record of
5conviction and that the certificate will be revoked unless the
6certificate holder provides evidence within 15 days from the date
7of the council’s mailing of the notice that the conviction is either
8invalid or that the information is otherwise erroneous.

9(3) Upon notice that the charges described in paragraph (1) have
10resulted in an acquittal or have been otherwise dismissed prior to
11conviction, the certificate shall be immediately reinstated and the
12certificate holder and any establishment or employer that received
13notice pursuant to this section shall be notified of the reinstatement
14within 10 business days.

15(g)  (1) Notwithstanding any other law, if the council determines
16that a certificate holder has committed an act punishable as a
17sexually related crime or a felony that is substantially related to
18the qualifications, functions, or duties of a certificate holder, the
19council may immediately suspend the certificate of that certificate
20holder. A determination to immediately suspend a certificate
21pursuant to this subdivision shall be based upon a preponderance
22of the evidence and the council shall also consider any available
23credible mitigating evidence before making a decision. Written
24statements by any person shall not be considered by the council
25when determining whether to immediately suspend a certificate
26unless made under penalty of perjury. If the council suspends a
27certificate in accordance with this subdivision, the council shall
28take all of the following additional actions:

29(A) Notify the certificate holder within 10 business days, at the
30address last filed with the council, by a method providing delivery
31confirmation, that the certificate has been suspended, the reason
32for the suspension, and that the certificate holder has the right to
33request a hearing pursuant to paragraph (2).

34(B) Notify by email or any other means consistent with the
35notice requirements of this chapter, any business or employer,
36whether public or private, that the council has in its records as
37employing or contracting with the certificate holder for massage
38services, and the California city, county, or city and county that
39has jurisdiction over that establishment or employer, that the
40certificate has been suspended within 10 business days.

P19   1(2) A certificate holder whose certificate is suspended pursuant
2to this subdivision shall have the right to request, in writing, a
3hearing to challenge the factual basis for the suspension. If the
4holder of the suspended certificate requests a hearing on the
5suspension, the hearing shall be held within 30 calendar days after
6receipt of the request. A holder whose certificate is suspended
7based on paragraph (1) shall be subject to revocation or other
8discipline in accordance with subdivision (a).

9(3) If the council determines, after a hearing conducted pursuant
10to this subdivision, to lift the suspension, the certificate shall be
11immediately reinstated and the certificate holder, any establishment
12or employer, and the city, county, or city and county that has
13jurisdiction over that establishment or employer, that received
14notice pursuant to this section shall be notified of the reinstatement
15within 10 business days.

16(h) Any notice required under this section may be given by any
17method reasonably calculated to provide actual notice. Any notice
18given by mail shall be given by first-class or certified mail sent to
19the last address of the applicant or certificate holder shown on the
20council’s records.

21(i) An applicant or certificate holder may challenge a denial or
22discipline decision issued pursuant to this section in a court of
23competent jurisdiction. Any action challenging a denial or
24 discipline, including any claim alleging defective notice, shall be
25commenced within one year after the effective date of the denial
26or discipline. If the action is successful, the court may order any
27relief, including reinstatement, that it finds equitable under the
28circumstances.

29(j) This section governs only the procedures for denial or
30discipline decision and not the substantive grounds for the denial
31or discipline. Denial or discipline based upon substantive grounds
32that violates contractual or other rights of the applicant or certificate
33holder, or is otherwise unlawful, is not made valid by compliance
34with this section.

35

4611.  

(a) It is an unfair business practice for a person to do
36any of the following:

37(1) To hold himself or herself out or to use the title of “certified
38massage therapist” or “certified massage practitioner,” or any other
39term, such as “licensed,” “certified,” “CMT,” or “CMP,” in any
40manner whatsoever that implies or suggests that the person is
P20   1certified as a massage therapist or massage practitioner, unless
2that person currently holds an active and valid certificate issued
3by the council pursuant to this chapter.

4(2) To falsely state or advertise or put out any sign or card or
5other device, or to falsely represent to the public through any print
6or electronic media, that he or she or any other individual is
7licensed, certified, or registered by a governmental agency as a
8massage therapist or massage practitioner.

9(b) In addition to any other available remedies, engaging in any
10of the prohibited behaviors described in subdivision (a) constitutes
11unfair competition under Section 17200.

12

4612.  

(a) Notwithstanding any other law, a city, county, or
13city and county shall not enact or enforce an ordinance that
14conflicts with this chapter or Section 51034 of the Government
15Code.

16(b) Nothing in this chapter shall prevent a city, county, or city
17and county from licensing, regulating, prohibiting, or permitting
18an individual who provides massage for compensation without a
19valid certificate.

20

4614.  

(a) Upon the request of any law enforcement agency or
21any other representative of a local government agency with
22responsibility for regulating or administering a local ordinance
23relating to massage or massage establishments, the council shall
24provide information concerning an applicant or a certificate holder,
25including, but not limited to, any of the following:

26(1) The current status of an application or certificate.

27(2) Any history of disciplinary actions.

28(3) The home and work addresses of the applicant or certificate
29holder.

30(4) The name and home and work addresses of any person whose
31certificate has been suspended and the length of the suspension,
32if the work address is located within the jurisdiction of agency
33making the request.

34(5) Any other information in the council’s possession that is
35necessary to verify facts relevant to administering the local
36ordinance.

37(b) Upon the request of the council, any law enforcement agency
38or any other representative of a local government agency with
39responsibility for regulating or administering a local ordinance
40relating to massage or massage establishments is authorized to
P21   1provide information to the council concerning an applicant or
2certificate holder, including, but not limited to, any of the
3following:

4(1) The current status of any local application or permit.

5(2) Any history of legal or administrative action taken against
6the applicant or certificate holder.

7(3) Any information related to criminal activity or unprofessional
8conduct allegedly engaged in by a certificate applicant or certificate
9holder, including, but not limited to, police reports and declarations
10of conduct.

11(4) The home and work addresses of the applicant or certificate
12holder.

13(5) Any other information in the possession of the law
14enforcement agency or other local government agency that is
15necessary to verify information or otherwise implement this
16chapter.

17(c) The council shall accept information provided by any law
18enforcement agency or any other representative of a local
19government agency with responsibility for regulating or
20administering a local ordinance relating to massage and review
21that information in a timely manner. The council shall have the
22responsibility to review any information received pursuant to this
23subdivision and to take any actions authorized by this chapter that
24are warranted by that information.

25

4615.  

(a) The council shall have the responsibility to determine
26whether the school from which an applicant has obtained the
27education required by this chapter meets the requirements of this
28chapter.

29(1) If the council has any reason to question whether or not the
30applicant received the education that is required by this chapter
31from the school or schools that the applicant is claiming, the
32council shall investigate the facts to determine that the applicant
33 received the required education prior to issuing a certificate.

34(2) For purposes of this section and any other provision of this
35chapter that authorizes the council to receive factual information
36as a condition of taking any action, the council may conduct oral
37interviews of the applicant and others or conduct any investigation
38deemed necessary to establish that the information received is
39accurate and satisfies the criteria established by this chapter.

P22   1(b) The council shall develop policies, procedures, rules, or
2bylaws governing the requirements and process for the approval
3and unapproval of schools consistent with Section 4601, including
4any corrective action required to return a school to approved status.
5These policies, procedures, rules, or bylaws shall address topics
6 including, but not limited to, what constitutes an acceptable
7curriculum, facility requirements, student-teacher ratios, clinical
8practice requirements, and provisions for the acceptance of
9accreditation from a recognized accreditation body or other form
10of acceptance. The council shall exercise its authority to approve
11and unapprove schools and specify corrective action in keeping
12with the purposes set forth in Section 4603.

13(c) The council may charge a reasonable fee for the inspection
14or approval of schools, provided the fees do not exceed the
15reasonable cost of the inspection or approval process.

16

4616.  

The council shall be sued only in the county of its
17principal office, which shall be in Sacramento, unless otherwise
18designated by the council.

19

4617.  

The superior court of a county of competent jurisdiction
20may, upon a petition by any person, issue an injunction or any
21other relief the court deems appropriate for a violation of this
22chapter by any person or establishment operating in that county
23subject to the provisions of this chapter. An injunction proceeding
24under this section shall be governed by Chapter 3 (commencing
25with Section 525) of Title 7 of Part 2 of the Code of Civil
26Procedure.

27

4618.  

The Legislature finds and declares that due to important
28health, safety, and welfare concerns that affect the entire state,
29establishing a uniform standard of certification for massage
30practitioners and massage therapists upon which consumers may
31rely to identify individuals who have achieved specified levels of
32education, training, and skill is a matter of statewide concern and
33not a municipal affair, as that term is used in Section 5 of Article
34XI of the California Constitution. Therefore, this chapter shall
35apply to all cities, counties, and cities and counties, including
36charter cities and charter counties.

37

4619.  

(a) This chapter shall be liberally construed to effectuate
38its purposes.

39(b) The provisions of this chapter are severable. If any provision
40of this chapter or its application is held invalid, that invalidity shall
P23   1not affect other provisions or applications that can be given effect
2without the invalid provision or application.

3(c) If any provision of this chapter or the application of these
4provisions to any person or circumstance is held to be invalid, the
5invalidity shall not affect other provisions or applications of the
6chapter that can be given effect without the invalid provision or
7application, and to this end the provisions of this chapter are
8 severable.

9

4620.  

(a) On or before June 1, 2016, for the time period
10beginning on January 1, 2015, the council shall provide a report
11to the appropriate policy committees of the Legislature that
12includes all of the following:

13(1) A feasibility study of licensure for the massage profession,
14including a proposed scope of practice, legitimate techniques of
15massage, and related statutory recommendations.

16(2) The council’s compensation guidelines and current salary
17levels.

18(3) The status of the council’s progress towards revising the
19school approval process.

20(4) Performance metrics, including, but not limited to:

21(A) The annual number of denied certificate applications, and
22a brief description of the grounds for each decision.

23(B) The annual number of suspended, revoked, or otherwise
24disciplined certificates, and a brief description of the grounds for
25each decision.

26(C) The number of certificates taken off suspension, and a brief
27description of the grounds for each decision.

28(D) The number of schools inspected and unapproved and a
29brief description of the grounds for each decision to unapprove.

30(E) The total number of complaints about certificate holders
31received annually, including a subtotal of complaints received
32from local law enforcement and the action taken by the council as
33a result of those complaints.

34(b) The council shall testify in person if requested by the
35appropriate policy committees of the Legislature.

36

4621.  

(a) This chapter shall remain in effect only until January
371, 2017, and as of that date is repealed, unless a later enacted
38statute, that is enacted before January 1, 2017, deletes or extends
39that date.

P24   1(b) Notwithstanding any other law, the powers and duties of the
2council shall be subject to review by the appropriate policy
3committees of the Legislature.

4

SEC. 3.  

Section 51034 of the Government Code is amended
5to read:

6

51034.  

(a) The Legislature in enacting this chapter recognizes
7the existing power of a city or county to regulate a lawful massage
8business pursuant to Section 37101, or pursuant to Section 16000
9or 16100 of the Business and Professions Code, or under Section
107 of Article XI of the California Constitution.

11(b) Nothing contained in this chapter shall be a limitation on
12that existing power or on the existing authority of a city to license
13for revenue purposes. A city, county, or city and county shall not
14enact or enforce an ordinance that conflicts with the provisions of
15this section or Chapter 10.5 (commencing with Section 4600) of
16Division 2 of the Business and Professions Code.

17(c) Nothing contained in this chapter shall authorize a city,
18county, or city and county to do any of the following:

19(1) Prohibit a person of one sex from engaging in the massage
20of a person of the other sex.

21(2) Define a massage establishment as an adult entertainment
22business, or otherwise regulate a massage establishment as adult
23entertainment.

24(3) Require a massage establishment to have windows or walls
25that do not extend from the floor to ceiling, or have other internal
26physical structures, including windows, that interfere with a client’s
27reasonable expectation of privacy.

28(4) Impose client draping requirements that extend beyond the
29covering of genitalia and female breasts, or otherwise mandate
30that the client wear special clothing.

31(5) Prohibit a massage establishment from locking its external
32doors if the massage establishment is a business entity owned by
33one individual with one or no employees or independent
34contractors.

35(6) Require a massage establishment to post any notice in an
36area that may be viewed by clients that contains explicit language
37describing sexual acts, mentions genitalia, or specific contraception
38devices.

39(7) Impose a requirement that a person certified pursuant to
40Chapter 10.5 (commencing with Section 4600) of Division 2 of
P25   1the Business and Professions Code take any test, medical
2examination, or background check or comply with education
3requirements beyond what is required by Chapter 10.5
4(commencing with Section 4600) of Division 2 of the Business
5and Professions Code.

6(8) Impose a requirement that an individual holding a certificate
7issued in accordance with Chapter 10.5 (commencing with Section
84600) of Division 2 of the Business and Professions Code, obtain
9any other license, permit, certificate, or other authorization to
10provide massage for compensation. However, this paragraph shall
11not be construed to prohibit a city, county, or city and county from
12requiring by ordinance that a massage business or establishment
13obtain a license, permit, certificate, or other authorization in order
14to operate lawfully within the jurisdiction.

15(9) Impose a dress code requirement on a person certified
16pursuant to Chapter 10.5 (commencing with Section 4600) of
17Division 2 of the Business and Professions Code in excess of those
18already imposed pursuant to paragraph (10) of subdivision (a) of
19Section 4609 of the Business and Professions Code.

20(10) Prohibit a person certified pursuant to Chapter 10.5
21(commencing with Section 4600) of Division 2 of the Business
22and Professions Code from performing massage for compensation
23on the gluteal muscles, prohibit specific massage techniques
24 recognized by the California Massage Therapy Council as
25legitimate, or impose any other specific restriction on professional
26practice beyond those set forth in subparagraph (E) of paragraph
27(1) of subdivision (a) of Section 4609 of the Business and
28Professions Code, except as authorized by Section 460 of the
29Business and Professions Code.



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