BILL ANALYSIS Ó AB 1147 Page 1 Date of Hearing: May 7, 2013 ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER PROTECTION Richard S. Gordon, Chair AB 1147 (Gomez) - As Amended: May 1, 2013 SUBJECT : Massage therapy. SUMMARY : Revises the qualifications for certification as a massage practitioner and massage therapist, and allows a city, county, or city and county to require the owner of a massage business to obtain a revocable certificate of registration, as specified. Specifically, this bill : 1)Requires an applicant for certification as a massage practitioner to pass a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards and is approved by the California Massage Therapy Council (CAMTC). 2)Provides that the successful completion of the competency examination may have been accomplished prior to the date CAMTC was authorized to issue certificates. 3)Eliminates a specific 100 hour coursework requirement in anatomy and physiology, contraindications, health and hygiene, and business and ethics, in favor of a more general requirement to complete 500 hours of hours in massage and related subjects. 4)States that nothing in this chapter precludes 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 apply for and receive a revocable certificate of registration. 5)Permits a city, county, or city and county, to require the following as part of the application for a certificate of registration: a) The full and true legal name under which the massage establishment or business will be conducted; b) The present or proposed address where the massage AB 1147 Page 2 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 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 certified persons to provide massage services, and that failure to comply may result in the 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 the change occurring; h) Authorization for the city, county, or city and county to investigate the truth of the information contained in the application; and, i) The payment of a fee to conduct a background check if the owner or owners of the massage establishment or business applying for the certificate of registration are not certified and own five percent or more of the massage establishment or business. 6)Authorizes a city, county, or city and county to require a massage establishment or business to comply with any applicable local ordinance, regulation, rule, requirement, or restriction as a condition of granting or maintaining a revocable certificate of registration including, but not limited to, those provisions pertaining to health and safety. 7)Authorizes a city, county, or city and county to exempt certain classes of persons or businesses from compliance with the requirements for a certificate of registration. 8)Authorizes a city, county, or city and county to make the AB 1147 Page 3 certificate or registration nontransferable. 9)Authorizes a city, county, or city and county at its sole discretion to suspend, revoke, impose conditions upon, or otherwise act against a certificate of registration for cause. 10)Makes other technical and clarifying changes. EXISTING LAW : 1)Establishes the CAMTC and defines the responsibilities and duties of the CAMTC. (Business and Professions Code (BPC) Section 4600.5) 2)Defines massage therapist, body worker, or bodywork therapist, massage and body work therapist, massage practitioner, body work practitioner or massage and body work practitioner to mean "a person who is certified by the CAMTC as specified." (BPC 4600) 3)Requires the CAMTC to issue a "massage therapist" certificate to an applicant, who submits a written application and provides satisfactory evidence that he or she meets all of the specified education, experience or examination requirements. (BCP 4601) 4)Requires the CAMTC to issue a "massage practitioner" certificate to an applicant who submits a written application and provides with satisfactory evidence that he or she meets all of the specified education, experience or examination requirements. (BCP 4601) 5)Provides that the holder of a certificate issued by the CAMTC shall be able to practice massage in any city, county, or city and county, consistent with the law and the qualifications established by his or her certification, and shall not be required to obtain any other license, permit, or other authorization, except as provided in current law. (BPC 4612) 6)Provides that nothing in existing law shall prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, and reasonable health and safety requirements AB 1147 Page 4 for massage establishments or businesses that employs or uses persons who are not certified by the CAMTC. (BPC 4612) 7)Provides that a local government may subject any massage business or establishment to reasonable inspections to verify conformance with local ordinances and fire, health, and safety requirements, and may also require the operator of a massage business to notify it of any change in business name, management, or transfer of ownership to another person. (BPC 4612) FISCAL EFFECT : None. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS : 1)Purpose of this bill . This bill would impose stronger regulations on massage therapy businesses by authorizing local governments to require revocable certificates of registration for massage businesses. These revocable certificates would give local governments more information about massage therapy businesses, and more power to discipline or shut down unscrupulous massage businesses. Additionally, this bill requires individuals applying for certification as a certified massage practitioner (CMP) to pass an examination and eliminates specified coursework requirements for individuals applying for certification as a Certified Massage Therapist (CMT). This bill is sponsored by the author. 2)Author's statement . According to the author, "Several years ago the Legislature pre-empted local control over land use issues surrounding massage parlors. As a result of the preemption numerous communities [complain] about what they regard as an explosion of these places. It is not the intent [of this bill] to disrupt legitimate owners, but a number of communities are experiencing a real concentration of these [massage] parlors." 3)The profession of massage therapy . Massage therapists treat clients by using touch to manipulate the soft-tissue muscles of the body. Massage therapy may be used to relieve pain, rehabilitate injuries, reduce stress, increase relaxation, and aid in the general wellness of clients. In 2010, massage therapists held approximately 153,700 jobs nationally and the AB 1147 Page 5 massage therapy profession is continuing to grow. Massage therapists work in a variety of settings, such as private offices, spas, hospitals, fitness centers, and shopping malls. SB 731 (Oropeza), Chapter 384, Statutes of 2008, established the voluntary statewide certification of massage therapists by the Massage Therapy Organization (MTO), which was renamed the CAMTC in 2011. The goal of the CAMTC is to standardize the process of certification throughout the state. The certification allows for massage professionals to work in multiple California locations without the need for multiple permits or fees. Massage professionals can obtain one of two certification levels: Certified Massage Practitioners (CMPs) are required to complete at least 250 hours of education and training, while Certified Massage Therapists (CMTs) are required to complete at least 500 hours of massage education and training at an approved massage therapy school, or complete 250 hours of education and training and pass an examination. CMPs and CMTs must also undergo background checks, including fingerprinting and other identification verification procedures. The CMP and CMT licenses are renewed biannually and licensees are not required to obtain continuing education in order to renew a license. Titles commonly used in California by the massage profession may include: massage therapist, massage practitioner, certified massage therapist, massage technician, bodyworker, masseur, and masseuse. However, current law makes it an unfair business practice for anyone not certified by CAMTC to use the titles CMP or CMT. Currently, applicants for certification as a CMT must pass an examination which is administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The NCBTMB is a nationally recognized entity which certifies massage therapists and bodyworkers on behalf of the profession. NCBTMB developed and administers the National Certification Examination for Therapeutic Massage and Bodywork. This bill would require both CMT and CMP applicants to pass an examination, and CMT applicants would now need to complete 500 hours of education in order to be certified. AB 1147 Page 6 4)California Massage Therapy Council . The CAMTC was created to implement a statewide certification process with clear standards of preparation and education. The provisions related to regulation of massage therapy and CAMTC will sunset on January 1, 2015. The CAMTC is led by a volunteer Board of Directors comprised of professionals from California's massage community, including massage associations, schools, and businesses. Two representatives are selected by each professional society, association or other entity whose membership is comprised of massage therapists and that choose to participate in the CAMTC. One member is selected by each statewide association of private postsecondary schools incorporated on or after January 1, 2010 whose member schools have had 1000 graduates in each of the previous three years. Additionally, the League of Cities, California State Association of Counties, Director of the Department Consumer Affairs, and the Chancellor of the California Community Colleges may appoint a member to the CAMTC board if they choose. Currently, the CAMTC is comprised of 20 members. While CAMTC does not accredit or approve schools, it does have the responsibility to determine if the curriculum of schools meets the legal requirements for applicants to obtain certification. Schools must either be nationally accredited or approved by the California Bureau for Private Postsecondary Education (BPPE) or a California community college. The CAMTC regulates approximately 38,000 certified CMPs and CMTs. If a certificate holder violates the terms of certification, CAMTC can suspend or revoke their certification, but it has no "cite and fine" authority. The CAMTC may deny, discipline or revoke the certification of a CMP or CMT for a variety of reasons, including: failure to obtain a clear fingerprint check; reports of unprofessional conduct in another state; any attempt to obtain a certificate through misrepresentation or fraud; or, committing any act punishable as a sexually-related crime. All of the relative disciplinary procedures are carried out by an employee of the CAMTC known as the Division Director of Professional Standards. Since 2010, there have been approximately 130 certificate suspensions or revocations. 5)City ordinances regulating massage therapy . As provided by SB 731, cities and counties may enact ordinances related to the AB 1147 Page 7 operation of a massage business including, but not limited to, requiring evidence for review by local authorities demonstrating that persons providing massage therapy services are certified, charging specified licensing fees, and filling out an application that provides relevant information about the business. However, cities and counties may not enact ordinances related to land use regulations, permits or zoning requirements specifically for massage businesses if those same requirements are not uniformly applied to all other businesses providing professional services. Additionally, local cities and counties cannot require any other specified permit or requirement other than for reasonable health and safety requirements. The original intent behind these restrictions was to prevent discrimination against legitimate massage businesses. Under current law, the power of cities and counties to regulate massage businesses depends on the certification status of the owner and the individuals working in the business. If a business chooses not to hire CMTs or CMPs, or if the owner is not certified, then a city or county ordinance may condition the issuance of a license upon proof that the business meets reasonable standards, such as minimum age, education and experience of personnel; passage of a practice examination of competence by massage personnel; sanitary conditions for the establishment; hours of operation; a prohibition on the sale or serving of food or beverages; and a prohibition on conducting non-massage-related business on the premises. AB 1147 would expand the ability of cities and counties to regulate massage businesses by explicitly making their certification revocable. An application for the revocable certification could include: a request for the full name and address of the business and the legal name and mailing address of the owners, a copy or other evidence of certification for each person providing massage services, a statement that the business will only employ certified individuals, and a statement that an applicant for certification will provide notification of any changes to the original application. This bill also allows a city or county to charge an application fee for a background check if the owner of a business is not certified. Additionally, AB 1147 provides local governments with the option to revoke, suspend, impose conditions upon or otherwise act against the certification for violations. AB 1147 Page 8 6)Recent issues in the news . Recent news stories have highlighted the concern in some communities about a rise in the number of massage businesses, as well as the fear that some of those businesses are operating as a front for prostitution or other illegal activities. A news story by the independent public television station in Los Angeles KCET, reported on March 25, 2013: "In case you haven't noticed, massage parlors are springing up all over Southern California, maybe even in your neighborhood. They seem to be everywhere-from Simi Valley to Beverly Hills. Huntington Beach has seen a 600% increase in just three years. Some blame a new state law for rules that allow this to growing industry to regulate itself." According to the Bureau of Labor Statistics, the employment of massage therapists is expected to increase by 20% nationwide between 2010 and 2020. 7)Arguments in support . The American Massage Therapy Association-California Chapter writes in support, "We recognize cities must have the tools necessary to regulate massage establishments effectively to reach our mutual goals of eradicating human trafficking and have a healthy massage industry in each city. To meet this end, we support the changes in [this bill] which will allow cities to provide a revocable certification of registration to [CMTs and CMPs]. This will go a long way in providing cities another tool to keep bad actors from the massage industry and ensure consumer protection." 8)Arguments in opposition . The League of California Cities is opposed unless amended and writes in opposition, "While cities have seen some benefits as a result of the 2008 [SB 731 Oropeza] legislation, there have been some unintended consequences and issues that need to be addressed. Illegitimate businesses have found ways to work within the confines of SB 731 by requiring one or two persons in their establishment to have a certification (as a cost of doing business) because they know they cannot be regulated if they are CAMTC certified. If law enforcement enters an establishment that is CAMTC certified, only the massage therapists are required to have certification." AB 1147 Page 9 9)Questions for the Committee . The Committee may wish to inquire of the author and interested parties as to whether or not there are any available data that can evidence the extent of nuisance or illegality caused by massage businesses in California. Furthermore, to the extent that advocates for local government contend that cities and counties should have expanded authority to specifically regulate other elements of massage businesses, such as the density or total number of businesses in a geographic area, the Committee may wish to discuss how best to balance local governments' need for greater control over potentially unscrupulous businesses against the rights of legitimate massage businesses to practice their profession without undue restriction. 10)Technical amendment . The Committee recommends a technical amendment to revise a deleted section related to coursework requirements for CMT certification. On Page 4, line 1, after "schools." insert: "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 minimum 250 hours from approved schools devoted to these curriculum areas." 11)Previous legislation . AB 619 (Halderman), Chapter 162, Statutes of 2011, changed the name of the MTO to the CAMTC and makes a number of clarifying, conforming and technical changes to the Massage Therapy Act. SB 1238 (Price), Chapter 655, Statutes of 2012, made a number of substantive, clarifying, conforming and technical changes regarding the approval of school credit hours and examination and training requirements for purposes of certification; the grounds for suspension, denial or revocation of certification of the certificate holder; the sharing of information between local law enforcement and the CAMTC; the responsibility of owner/operators of massage businesses for conduct of employees or their independent contractors and background checks of owner/operators; and the ability for cities to restrict the operation of massage businesses involved in prior criminal AB 1147 Page 10 activity. SB 285 (Correa) Chapter 149, Statutes of 2011, provided that any person who provides a certificate, diploma or other document, or otherwise affirms that a person has received instruction in massage therapy, knowing that the person has not received such training, is guilty of a misdemeanor, punishable by a fine of $2,500, or imprisonment in county jail for up to one year, or both. AB 1822 (Swanson) of 2010, would have added two additional members to the MTO's board of directors, each one selected by the California Police Chiefs Association and the California State Sheriffs' Association, respectively, unless those entities choose not to do so. AB 1822 was vetoed by the Governor. SB 731 (Oropeza) Chapter 384, Statutes of 2008, created the MTO and provided for the voluntary certification of massage therapists and massage practitioners by the MTO. SB 412 (Figueroa) of 2005 would have established the MTO and would have provided for the certification of massage therapist and massage practitioners by the MTO. SB 412 was held on the Assembly floor. REGISTERED SUPPORT / OPPOSITION : Support American Massage Therapy-Association California Massage Therapy Council One private individual Opposition City of Huntington Beach City of Thousand Oaks League of California Cities Analysis Prepared by : Elissa Silva / B.,P. & C.P. / (916) 319-3301 AB 1147 Page 11