BILL ANALYSIS �
AB 1147
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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
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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
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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
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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
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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.
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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
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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.
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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."
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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
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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
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