BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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  :    
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          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  

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             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  

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             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  

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             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  

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             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  

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             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  

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             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  

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             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  

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                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  

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          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

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          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

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          MW:k  8/20/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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