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 states that they support extending the sunset of the statewide program and support providing cities the tools they need to eradicate illicit businesses. They write, "This bill does that and more; however, amendments must be taken to protect certified sole providers of massage from being required to obtain excess permits and pay onerous fees meant to block them from practicing and drive them out of business." 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 NOES: Donnelly NO VOTE RECORDED: Bigelow, Chávez, Hagman, Jones, Logue, Mansoor, Melendez, Nestande, V. Manuel Pérez, Quirk, Wilk CONTINUED AB 1147 Page 13 MW:k 8/20/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED