BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1147|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 1147
Author: Bonilla (D), Gomez (D), and Holden (D), et al.
Amended: 8/4/14 in Senate
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV.COMM. : 8-0, 6/23/14
AYES: Lieu, Wyland, Berryhill, Corbett, Galgiani, Hernandez,
Hill, Torres
NO VOTE RECORDED: Block
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 68-1, 1/27/14 - See last page for vote
SUBJECT : Massage therapy
SOURCE : Author
DIGEST : This bill revises, recasts, rewrites and makes a
number of substantive, clarifying, conforming and technical
changes to the Massage Therapy Act as follows: deletes the
preemption of ordinances and local land use authority for
"certified-only" massage establishments; reconstitutes the
California Massage Therapy Council (CAMTC); reinforces local
massage ordinances; raises professional and educational
standards for massage therapists; expands the disciplinary
authority of the CAMTC; and extends the sunset date, by two
years, until January 1, 2017.
ANALYSIS :
CONTINUED
AB 1147
Page
2
Existing law:
1. Provides, until January 1, 2015, for the voluntary
certification of massage practitioners and massage therapists
by the CAMTC.
2. Specifies the requirements for the CAMTC to issue to an
applicant a certificate as a massage practitioner or massage
therapist.
3. 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.
4. 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:
1. Prohibits a city, county, or city and county from preventing
a licensed or authorized individual, as specified, from
engaging in their regulated profession.
2. Establishes the Massage Therapy Act.
3. Permits the CAMTC to require background checks for all
employees, contractors, volunteers, and members of board of
directors (Board) as a condition of their employment,
formation of a contractual relationship, or participation in
CAMTC activities.
4. Permits the CAMTC to issue a certificate to an individual
applicant, as specified.
5. Authorizes the CAMTC to determine whether information
provided to them in relation to certification of an applicant
CONTINUED
AB 1147
Page
3
is true and correct and meets the specified requirements, and
if the CAMTC has any reason to question whether the
information provided is true or correct or meets the
specified requirements, the CAMTC may make any investigation
it deems necessary to establish that the information received
is accurate and satisfies the established criteria. Provides
that the applicant has the burden to prove he/she is entitled
to certification.
6. Repeals the authority, structure and composition of the
CAMTC's Board on September 15, 2015.
7. Specifies that the term of the current Board will terminate
on September 15, 2015, and the terms of 13 new members of the
Board will begin, as specified.
8. Specifies that Board member terms are for four years.
9. Provides that the fee for certification or renewal can be no
higher than $300.
10.Authorizes the Board to adopt additional policies and
procedures that provide greater transparency to certificate
holders and the public than required by the Bagley-Keene Open
Meeting Act.
11.Provides that, prior to holding a meeting to vote upon a
proposal to increase the certification fees, the Board shall
provide at least 90 days' notice of the meeting, including
posting a notice on the CAMTC's Internet Web site, unless at
least two-thirds of the Board members concur that there is an
active threat to public safety and that voting at a meeting
without prior notice is necessary; however, the Board shall
not waive the requirements of the Bagley-Keene Open Meeting
Act.
12.Provides that if the Board approves an increase in the
certification fees, the CAMTC shall update all relevant areas
of its Internet Web site and notify all certificate holders
and affected applicants by email within 14 days of the
Board's action.
13.States that the protection of the public is the highest
priority for the CAMTC in exercising its certification and
CONTINUED
AB 1147
Page
4
disciplinary authority, and other functions and whenever the
protection of the public is inconsistent with other interests
sought to be promoted, the protection of the public is
paramount.
14.Revises and recasts the educational requirements for
certification to require all applicants to complete curricula
in massage and related subjects totaling a minimum of 500
hours, or the credit unit equivalent, from schools approved
by the CAMTC; and specifies of the 500 hours a minimum of 100
hours must address anatomy and physiology, contraindications,
health and hygiene, and business and ethics.
15.Requires all applicants for certification to take and pass a
massage and bodywork competency assessment and examination,
as specified.
16.Prohibits the CAMTC from accepting applications to practice
as a certified massage practitioner on or after January 1,
2015, as specified.
17.Clarifies that applications accepted prior to January 1,
2015, to practice as a certified massage practitioner, may be
renewed without any additional educational requirements.
18.Requires a massage practitioner certificate or
identification card issued by the CAMTC to be surrendered by
any certificate holder whose certificate is suspended or
revoked.
19.Permits a person who was issued a conditional certificate to
practice as a massage practitioner.
20.Clarifies the provisions to phase out the massage
practitioner conditional certification, as specified.
21.Provides that a certification issued by the CAMTC is subject
to renewal every two years, as specified, and a certificate
issued by the CAMTC expires after two years unless it is
renewed, and the CAMTC may provide for the late renewal of a
certificate.
22.Permits the CAMTC to receive arrest notifications and other
background material about applicants and certificate holders
CONTINUED
AB 1147
Page
5
from a city, county or city and county.
23.Provides that an owner or operator of a certified massage
business or establishment is responsible for the conduct of
all individuals providing massage for compensation on the
business premises.
24.Requires a certificate holder to include the name under
which he/she is certified and his/her certificate number in
any and all advertising of massage for compensation.
25.Requires a certificate holder to notify the CAMTC of his/her
primary email address, if any, and notify the CAMTC within 30
days of a change of the primary email address, and specifies
that if a certificate holder provides massage on an out-call
basis, they do not need to notify the CAMTC of a change in
address, as specified.
26.Expands the definition of "unprofessional conduct" to
include:
A. Engaging in sexually suggestive advertising;
B. Engaging in any form of sexual activity on the
premises of a massage establishment where massage is
provided for compensation, excluding a residence;
C. Engaging in sexual activity while providing massage
services for compensation;
D. Practicing massage on a suspended certificate or
practicing outside of the conditions of a restricted
certificate;
E. Providing massage of the genitals or anal region; and
F. Providing massage of female breasts without the
written consent of the person receiving massage and
referral by a licensed California health care provider.
1. Permits the CAMTC to deny an application for a certificate
for the commission of any specified acts, including but not
limited to, failing to fully disclose all information
requested on the application; and dressing while engaged in
CONTINUED
AB 1147
Page
6
the practice of massage for compensation, or while in a
massage establishment, in a manner that exposes the
certificate holder's breasts, buttocks, or genitals, that is
transparent or see-through, that violates the Penal Code
Section 314, or that is otherwise deemed by the CAMTC to
constitute unprofessional attire based on the custom and
practice of the profession in California.
2. Enhances the CAMTC's authority to discipline a certificate
to include placing the certificate holder on probation which
may include limitations or conditions on practice.
3. States that any denial or discipline must be decided upon
and imposed in good faith and in a fair and reasonable manner
and any procedure that conforms to the requirements, as
specified, is fair and reasonable, but a court may also find
other procedures to be fair and reasonable when the full
circumstances of the denial or discipline are considered.
4. Specifies that a procedure is fair and reasonable if the
procedures, as specified, are followed or if all of the
following apply:
A. Denial or discipline shall be based on a preponderance
of the evidence. In determining the basis for the denial
or discipline, the CAMTC may consider all written
documents or statements as evidence, but shall weigh the
reliability of those documents or statements;
B. The provisions of the procedure are publicly available
on the CAMTC's Internet Web site; and,
C. The CAMTC provides 15 calendar days prior notice of
the denial or discipline and the reasons for the denial or
discipline.
D. The CAMTC provides an opportunity for the applicant or
certificate holder to be heard not less than five days
before the effective date of the denial or discipline, as
specified.
1. States that if the CAMTC receives notice that a certificate
holder has been arrested and charges have been filed, as
specified, the CAMTC will immediately suspend, on an interim
CONTINUED
AB 1147
Page
7
basis, the certificate of that certificate holder and provide
notification of the suspension by email, within 10 business
days, to (a) the clerk or other designated contact of the
city, county, or city and county in which the certificate
holder lives or works, pursuant to the CAMTC's records, and
(b) any establishment or employer, whether public or private,
that the CAMTC has in its records as employing the
certificate holder.
2. Requires the CAMTC to take specified actions if the CAMTC
suspends a certificate.
3. Requires that any notice given by the CAMTC pertaining to
discipline of a certificate holder may be given by any method
reasonably calculated to provide actual notice, and any
notice given by mail must be given by first-class or
certified mail sent to the last address of the applicant or
certificate holder shown on the CAMTC's records.
4. Permits an applicant or certificate holder to challenge a
denial or discipline decision, as specified.
5. Adds unfair competition under Business and Professions Code
Section 17200 to the remedies for engaging in an unfair
business practice, as specified.
6. Prohibits a city, county or city and county from enacting or
enforcing an ordinance that conflicts with this bill.
7. Specifies that nothing shall prevent a city, county, or city
and county from licensing, regulating, prohibiting, or
permitting an individual who provides massage for
compensation without a valid certificate.
8. Requires the CAMTC, upon the request of any law enforcement
agency or any other representative of a local government
agency with responsibility for regulating or administering a
local ordinance relating to massage or massage
establishments, to provide information concerning an
applicant or a certificate holder, as specified.
9. States that, upon request of the CAMTC, any law enforcement
agency or any other representative of a local government
agency with responsibility for regulating or administering a
CONTINUED
AB 1147
Page
8
local ordinance relating to massage or massage establishments
is authorized to provide information to the CAMTC concerning
an applicant or certificate holder, as specified.
10.Requires the CAMTC to accept information provided by any law
enforcement agency or any other representative of a local
government agency with responsibility for regulating or
administering a local ordinance relating to massage and
review that information in a timely manner; and specifies
that the CAMTC has the responsibility to review any
information received and take any actions authorized, as
specified, that are warranted by that information.
11.Provides the CAMTC with the responsibility to determine
whether the school from which an applicant has obtained the
education required, meets the requirements, as specified.
12.States that if the CAMTC has any reason to question whether
or not the applicant received the education that is required
from the school(s) that the applicant is claiming, the CAMTC
will investigate the facts to determine that the applicant
received the required education prior to issuing a
certificate.
13.Authorizes the CAMTC to charge a reasonable fee for the
inspection or approval of schools, provided the fees do not
exceed the reasonable cost of the inspection or approval
process.
14.Requires the CAMTC to develop policies and procedures
governing the requirements and approval process for schools
and the curriculum and programs for these schools, including
provisions for acceptance of accreditation from a recognized
accreditation body or other form of acceptance.
15.States that the superior court of a county of competent
jurisdiction may, upon petition by any person, issue an
injunction or any other relief the court deems appropriate
for a violation, as specified.
16.States that the provisions of this chapter are severable, as
specified.
17.Requires, on or before June 1, 2016, for the time period
CONTINUED
AB 1147
Page
9
beginning January 1, 2015, the CAMTC to provide a report to
the Legislature as specified.
18.Requires the CAMTC to testify in person if requested by the
appropriate policy committees of the Legislature.
19.Extends the sunset date, by two years, until January 1,
2017, and subjects the CAMTC to review by the appropriate
policy committees of the Legislature.
20.Provides that nothing in this bill shall authorize a city,
county, or city and county to do the following:
A. Defining a massage establishment as an adult
entertainment business, or otherwise regulating a massage
establishment as adult entertainment.
B. Requiring a massage establishment to have windows or
walls that do not extend from the floor to the ceiling, or
have other internal physical structures, including
windows, that interfere with a client's reasonable
expectation of privacy.
C. Imposing client draping requirements that extend
beyond the covering of genitalia and female breasts, or
otherwise mandating the client wear special clothing.
D. Prohibiting a massage establishment from locking its
external doors if the massage establishment is a business
entity owned by one individual with one or no employees or
independent contractors.
E. Requiring a massage establishment to post any notice
in an area that may be viewed by clients that contains
explicit language describing sexual acts, mentions
genitalia, or specific contraception devices.
F. Imposing a requirement that a person certified by this
bill take any test, medical exam, or background check or
comply with education requirements beyond what is required
by this bill.
G. Imposing a requirement that an individual, other than
a sole proprietor, holding a certificate issued in
CONTINUED
AB 1147
Page
10
accordance with this bill, obtain any other license,
permit, certificate, or other authorization to provide
massage for compensation.
H. Imposing a dress code requirement on a person
certified by this bill in excess of those already imposed,
as specified in #27.
I. Prohibiting a person certified by this bill from
performing massage for compensation on gluteal muscles;
prohibiting specific massage techniques recognized by the
Council as legitimate; or imposing any other specific
restriction on professional practice beyond those set
forth, as specified in #26E.
1. States legislative intent relating to certification for
massage practitioners and therapists.
2. Defines numerous terms.
Comments
According to the authors, on March 10, 2014, the Assembly
Business, Professions and Consumer Protection Committee and the
Senate Business, Professions and Economic Development Committee
held a joint Sunset Review hearing to investigate CAMTC's
performance and the related impacts on local governments. A
comprehensive review of CAMTC and testimony from the hearing
revealed that current law is clearly not operating the way it
was intended. The review of CAMTC demonstrated that the
organization faces many challenges to its ability to fulfill its
mission, including the need for greater oversight of educational
institutions; a need for establishment and business inspections;
a need for better administrative controls; and, a revised Board
more responsive to stakeholders. In addition, it was clear that
local governments strongly desired to regain land use authority
over establishments using certified professionals, and for CAMTC
to enhance its communications with local government and law
enforcement entities to better help in stopping individuals and
businesses engaged in illegal activity from masquerading as
legitimate healing arts practitioners and damaging the
reputation of the massage therapy profession.
The authors also indicate that, in addition, recent news stories
CONTINUED
AB 1147
Page
11
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/11/14)
American Massage Therapy Association, California Chapter
American Planning Association, California Chapter
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Police Chiefs Association
California State Association of Counties
California State Sheriffs' Association
Cities of Alhambra, Arcadia, Beaumont, Benicia, Big Bear Lake,
Blue Lake, Brea, Burbank, Camarillo, Cerritos, Chowchilla,
Claremont, Clayton, Colton, Corona, Coronado, Del Mar, Downey,
Duarte, Encinitas, Escondido, Eureka, Fontana, Fountain
Valley, Glendale, Glendora, Huntington Beach, La Mirada,
Livermore, Lomita, Long Beach, Mission Viejo, Modesto,
Moorpark, National City, Norwalk, Oceanside, Ontario, Palm
Desert, Palmdale, Pasadena, Pleasanton, Poway, Rancho
Cucamonga, Rosemead, Roseville, Sacramento, San Bernardino,
San Carlos, San Francisco, San Gabriel, San Jose, San Leandro,
San Luis Obispo, San Marino, San Rafael, Santa Clarita, Scotts
Valley, Selma, Signal Hill, Simi Valley, Sonoma, South El
Monte, South Pasadena, Sunnyvale, Thousand Oaks, Torrance,
Union, Ventura, Vista, Whittier, West Hollywood, and Yucaipa
Concerned Women for America of California
Counties of Sacramento, San Francisco, and Sonoma
Institute on Violence, Abuse and Trauma
League of California Cities
Los Angeles County Division of the League of California Cities
Los Angeles County Sheriff's Department
Los Angeles Police Protective League
Moms For Community
North County Lifeline
Redwood Empire Division of the League of California Cities
Riverside Sheriffs' Association
San Diego County Division of the league of California Cities
San Diego South Bay Cities Council of Governments
CONTINUED
AB 1147
Page
12
Soroptimist International of Vista, Human Trafficking Task Force
Town of Danville
Ventura Council of Governments
ARGUMENTS IN SUPPORT : The League of California Cities is in
support of this bill as it would return the tools to local
governments that would allow them to close down businesses
masquerading as massage establishments that are really offering
illicit services, and in some cases engaging in human
trafficking. According to the League, they have been very
involved in this issue and have been asking for three issues to
be addressed: (1) that the CAMTC be replaced with a board or
commission; (2) that businesses that employ massage
professionals be regulated and local governments be allowed to
apply reasonable regulations to massage businesses; and (3)
local governments be authorized to recoup their costs of
protecting the public. The League believes that this bill
addresses all of the concerns raised by the League.
The American Massage Therapy Association, California Chapter
(AMTA-CA) supports setting a higher bar to become certified by
requiring 500 hours of education from approved schools, passage
of a national exam and strengthening the unprofessional conduct
rules as required by this bill. AMTA-CA indicates that while
they have serious concerns with giving regulatory authority of
all massage establishment back to the cities, they are
optimistic the protections for massage therapists in this bill
will be sufficient to ensure there is incentive for massage
therapists to meet the higher standards to become certified and
be protected from onerous adult entertainment type ordinance
applied in prior years.
ASSEMBLY FLOOR : 68-1, 1/27/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chesbro, Conway, Cooley, Dababneh,
Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Beth
Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,
Grove, Hall, Harkey, Roger Hernández, Holden, Jones-Sawyer,
Levine, Linder, Lowenthal, Maienschein, Medina, Morrell,
Mullin, Muratsuchi, Nazarian, Olsen, Pan, Patterson, Perea,
Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner,
Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Williams,
Yamada, John A. Pérez
CONTINUED
AB 1147
Page
13
NOES: Donnelly
NO VOTE RECORDED: Bigelow, Chávez, Hagman, Jones, Logue,
Mansoor, Melendez, Nestande, V. Manuel Pérez, Quirk, Wilk
MW:k 8/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED