BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1147
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1147 (Bonilla, et al.)
          As Amended  August 22, 2014
          Majority vote
           
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          |ASSEMBLY:  |68-1 |(January 27,    |SENATE: |34-0 |(August 26,    |
          |           |     |2014)           |        |     |2014)          |
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           Original Committee Reference:    B., P. & C.P.  

           SUMMARY  :  Substantially revises existing law regulating  
          certified massage therapy professionals, including the deletion  
          of the preemption of local massage-related ordinances as they  
          relate to land use, a two-year extension of the sunset date of  
          the California Massage Therapy Council (CAMTC) which regulates  
          certified massage therapists, reconstitution of CAMTC's board of  
          directors (Board), the increase of educational standards for  
          certified massage professionals, and the creation of new  
          protections for consumers of massage services.   

           The Senate amendments  delete the Assembly version of this bill,  
          and instead:

          1)Clarify that a city or county may not prevent an individual  
            licensed or otherwise authorized under the Business and  
            Professions Code from engaging in their regulated profession.

          2)Establish the Massage Therapy Act (Act).

          3)Define the terms "approved school," "certificate,"  
            "compensation," "Council," "massage," "massage practitioner,"  
            "massage therapist," as specified.  

          4)Define a "massage establishment" or "establishment" to mean "  
            a fixed location where massage is performed for compensation,  
            excluding those locations where massage is only provided on an  
            out-call basis."

          5)Define a "sole provider" to mean "a massage business where the  
            owner owns 100% of the business, is the only person who  
            provides massage services for compensation for that business  
            pursuant to a valid and active certificate, as specified, and  
            has no other employees."








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          6)Establish CAMTC to carry out the responsibilities and duties  
            of the Act, and authorize CAMTC to develop rules and bylaws in  
            addition to policies and procedures to carry out the duties of  
            the Act. 

          7)Authorize CAMTC to require background checks for all  
            employees, contractors, volunteers, and board members as a  
            condition of their employment, formation of a contractual  
            relationship, or participation in CAMTC activities.

          8)Authorize CAMTC to determine whether information provided to  
            them in relation to certification of an applicant is true and  
            correct and meets the specified requirements, and if CAMTC has  
            any reason to question whether the information provided is  
            true or correct or meets the specified requirements, CAMTC may  
            make any investigation it deems necessary to establish that  
            the information received is accurate and specifies that the  
            applicant has the burden to prove that he or she is entitled  
            to certification.

          9)Repeal the authority, structure and composition of CAMTC's  
            Board on September 15, 2015.

          10)Specify that the terms of 13 new members of the Board will  
            begin on September 15, 2015, with new Board members, each of  
            whom shall serve a term of four years, being chosen in the  
            following manner:

             a)   One member shall be a representative of the League of  
               California Cities;

             b)   One member shall be a representative of the California  
               Police Chiefs Association;

             c)   One member shall be a representative of the California  
               State Association of Counties;

             d)   One member shall be a representative of an anti-human  
               trafficking organization, to be determined by CAMTC;

             e)   One member shall be appointed by the Office of the  
               Chancellor of the Community Colleges.

             f)   One public member shall be appointed by the director of  








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               DCA;

             g)   One member appointed by the California Association of  
               Private Postsecondary Schools;

             h)   One member shall be appointed by the American Massage  
               Therapy Association, California Chapter, who is a  
               California-certified massage therapist or practitioner, is  
               a California resident, and has been practicing massage for  
               at least three years;

             i)   One member shall be a public health official  
               representing a city, county or city and county health  
               department;

             j)   One member who shall be a certified massage therapist  
               (CMT) or a certified massage practitioner (CMP) who is a  
               California resident who has practiced massage for at least  
               three years prior to the appointment, selected by a  
               professional society, association, or other entity, as  
               specified;

             aa)  Three additional members appointed by the Board at a  
               duly held Board meeting in accordance with the Board's  
               bylaws, one of whom shall be an attorney who represents a  
               city in the state, and one of whom shall represent a  
               massage business entity that has been operating in the  
               state for at least three years, as specified.

          11)Require the Board to establish fees reasonably related to the  
            cost of providing services and carrying out its ongoing  
            responsibilities and duties, as specified. 

          12)Provide that the fee for certification or renewal may be no  
            higher than $300.

          13)Authorize 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.

          14)State that prior to holding a meeting to vote upon a proposal  
            to increase the certification fees, CAMTC shall provide at  
            least 90 days' notice of the meeting, as specified, and  
            require CAMTC to update its Internet Web site and notify all  








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            certificate holders and affected applicants by email within 14  
            days if CAMTC increases certification fees.

          15)State that the protection of the public is the highest  
            priority for CAMTC in exercising its certification and  
            disciplinary authority, and any 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.

          16)Revise and recast the educational requirements for  
            certification to require all applicants to complete curricula  
            in massage and related subjects totaling a minimum of 500  
            hours from CAMTC approved schools, and specify that of those  
            500 hours, a minimum of 100 hours must address anatomy and  
            physiology, contraindications, health and hygiene, and  
            business ethics.

          17)Require all applicants for certification to take and pass a  
            massage and bodywork competency assessment and examination, as  
            specified.

          18)Require an applicant for certification to successfully pass a  
            background investigation, as specified, and pay the required  
            fees.

          19)Permit CAMTC to issue a certificate to an applicant who meets  
            specified qualifications, if the applicant holds a valid  
            registration, certification, or license from any other state  
            whose licensure requirements meet or exceed those established  
            by the Act, as specified.

          20)Require a certificate holder to surrender his or her  
            certificate and any identification card issued by CAMTC if his  
            or her certificate is suspended or revoked by CAMTC. 

          21)Prohibit CAMTC from accepting applications to practice as a  
            CMP on or after January 1, 2015, clarifies that applications  
            accepted prior to January 1, 2015, to practice as a CMP may be  
            renewed without any additional educational requirements, and  
            permits a person who was issued a conditional certificate to  
            practice as a massage practitioner, as specified.

          22)Provide that a certificate issued by CAMTC is subject to  
            renewal every two years, and authorizes CAMTC to provide for  








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            the late renewal of a certificate or registration. 

          23)Require CAMTC, prior to issuing a certificate to an applicant  
            or designating a custodian of records, to require the  
            applicant or custodian of records to submit fingerprint  
            images, as specified.

          24)Establish the process for obtaining the record of state and  
            federal level convictions and of state and federal level  
            arrests, as specified.

          25)Permit CAMTC to receive arrest notifications and other  
            background material about applicants and certificate holders  
            from a city, county, or city and county.

          26)Specify that CAMTC may discipline an owner or operator of a  
            massage business or establishment who is certified by CAMTC  
            for the conduct of all individuals providing massage for  
            compensation on the business premises. 

          27)Require a certificate holder to:

             a)   Display his or her original certificate wherever he or  
               she provides massage for compensation and have his or her  
               identification card in his or her possession while  
               providing massage for compensation;

             b)   Provide his or her full name and certificate number upon  
               request at the location where he or she is providing  
               massage for compensation; 

             c)   Include the name under which he or she is certified and  
               his or her certificate number in any and all advertising of  
               massage for compensation; and, 

             d)   Notify CAMTC of his or her primary email address, if  
               any, and notify CAMTC within 30 days of a change of the  
               primary email address, except as specified.

          28)Expand 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  








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               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;

             f)   Providing massage of female breasts without the written  
               consent of the person receiving the massage and a referral  
               from a licensed California health care provider;

             g)   Procuring or attempting to procure a certificate by  
               fraud, misrepresentation, or mistake;

             h)   Failing to fully disclose all information requested on  
               the application; and,

             i)   Dressing while engaged in the practice of massage for  
               compensation, or while visible to clients, in a massage  
               establishment in any of the following:

               i)     Attire that is transparent or see-through, or that  
                 substantially exposes the certificate holder's  
                 undergarments;

               ii)    Swim attire, if not providing a water-based massage  
                 modality approved by CAMTC;

               iii)   In a manner that exposes the certificate holder's  
                 breasts, buttocks, or genitals;

               iv)    In a manner that constitutes a violation of the  
                 Penal Code, as specified; or,

               v)     In a manner that is otherwise deemed by CAMTC to  
                 constitute unprofessional attire based on the custom and  
                 practice of the profession in California.

          29)Permit CAMTC to deny an application for a certificate for the  
            commission of any specified criminal acts.









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          30)Enhance CAMTC's authority to discipline a certificate holder  
            to include the imposition of probation, which may include  
            limitations or conditions on practice.

          31)Require CAMTC to deny an application for a certificate, or  
            revoke the certificate of a certificate holder, if the  
            individual is required to register as a sex offender, as  
            specified.

          32)State that any denial or discipline must be decided upon and  
            imposed in good faith and in a fair and reasonable manner, and  
            that any procedure that conforms to specified requirements is  
            fair and reasonable, but a court may also find other  
            procedures to be fair and reasonable.

          33)Specify that a procedure is fair and reasonable if specified  
            procedures are followed or if all of the following apply:

             a)   Denial or discipline is based on a preponderance of the  
               evidence;

             b)   The provisions of the procedure are publically available  
               on CAMTC's Internet Web site; 

             c)   CAMTC provides 15 calendar days prior notice of the  
               denial or discipline and the reasons for the denial or  
               discipline; and,

             d)   CAMTC provides an opportunity for the applicant or  
               certificate holder to be heard, orally or in writing, as  
               specified.

          34)Require CAMTC, upon receiving notice that a certificate  
            holder has been arrested and charges have been filed, to:

             a)   Notify the certificate holder, at the address last filed  
               with CAMTC, that the certificate has been suspended and the  
               reason for the suspension within 10 business days;

             b)   Provide notification of the suspension by email to the  
               clerk or other designated contact of the city, county or  
               city and county in which the certificate holder lives or  
               works, pursuant to CAMTC's records within 10 business days;  
               and,









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             c)   Provide notification of the suspension by email, to any  
               establishment or employer, whether public or private, that  
               CAMTC has in its records as employing the certificate  
               holder, within 10 business days.

          35)Permit an applicant or certificate holder to challenge a  
            denial or discipline decision, as specified.

          36)Provide the procedures and process for CAMTC to immediately  
            suspend the certificate of a certificate holder, if CAMTC  
            determines that a certificate holder committed any act  
            punishable as a sexually related crime or a felony that is  
            substantially related to the qualifications, functions or  
            duties of a certificate holder, as specified.

          37)Prohibit a city, county, or city and country from enacting an  
            ordinance that conflicts with the provisions of this Act or  
            specified provisions of the Government Code.  
           
          38)Clarify that nothing shall prevent a city, county, or city  
            and county from licensing, regulating, prohibiting, or issuing  
            a permit to an individual who provides massage for  
            compensation without a valid certificate.

          39)Require 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, to provide information  
            concerning an applicant or certificate holder, as specified.

          40)Require 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 clarifies that CAMTC  
            has the responsibility to take any actions that are authorized  
            or warranted, as specified.

          41)State that upon request of CAMTC, 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 is  
            authorized to provide information to CAMTC concerning an  
            applicant or certificate holder, as specified.









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          42)Require CAMTC to determine whether the school from which an  
            applicant has obtained his or her education meets applicable  
            requirements, as specified, and require CAMTC to investigate  
            the facts prior to issuing a certificate, including oral  
            interviews or any other investigation deemed necessary to  
            receive factual information, as specified. 

          43)Require CAMTC to develop policies, procedures, rules or  
            bylaws governing the requirement and process for the approval  
            and unapproval of schools including any corrective action  
            required to return a school to approved status, as specified.

          44)Authorize CAMTC to approve and unapprove schools and specify  
            corrective action in keeping with the purposes of protecting  
            the public, as specified.

          45)Authorize 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.

          46)Provide that CAMTC may only be sued in the county of its  
            principal office, which is Sacramento, unless otherwise  
            designated by CAMTC. 

          47)State that the superior court of a county or competent  
            jurisdiction may, upon petition by any person, issue an  
            injunction or any other relief the court deems appropriate for  
            a violation, as specified.

          48)State that the provisions of this chapter are severable.

          49)Require CAMTC, on or before June 1, 2016, to provide a report  
            to the Legislature for the time period beginning January 1,  
            2015, that addresses all of the following topics:

             a)   A feasibility study of licensure for the massage  
               profession, including a proposed scope of practice,  
               legitimate techniques of massage, and related statutory  
               recommendations;

             b)   CAMTC's compensation guidelines and current salary  
               levels;

             c)   The status of CAMTC's progress towards revising the  
               school approval process; and,








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             d)   Performance metrics, including, but not limited to,  
               total application denials, discipline against certificates,  
               inspections of schools, and complaints, as specified. 

          50)Extend the sunset date of CAMTC by two years, until January  
            1, 2017, and subject CAMTC to review by the appropriate policy  
            committees of the Legislature.

          51)Prohibit a city, county, or city and county from doing any of  
            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  
               require that the client wear special clothing;

             d)   Prohibiting a massage establishment from locking its  
               external doors when there is only one individual working on  
               the premise as specified;

             e)   Require 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  
               contraception devices;

             f)   Impose a requirement that a certificate holder take or  
               pass any test, medical examination or background check, or  
               comply with educational requirements beyond what is  
               required;

             g)   Impose a dress code requirement in excess of that  
               already required of certificate holders;

             h)   Impose a requirement that an individual holding a  
               certificate issued in accordance with the Act obtain any  








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               other license, permit, certificate, or other authorization  
               to provide massage for compensation; provided, however,  
               that a city, county, or city and county is not prohibited  
               from requiring by ordinance that a massage business or  
               establishment obtain a license, permit, certificate or  
               authorization in order to operate lawfully within a  
               jurisdiction; and, 

             i)   Prohibit an individual holding a certificate from  
               performing massage for compensation on the gluteal muscles,  
               prohibit specific massage techniques, recognized by CAMTC  
               as legitimate, or impose any other restriction on the  
               practice of massage beyond what is specified under the  
               provisions of the Act.

          52)State that is the intent of the Legislature that land use  
            authority be returned to local governments while professional  
            regulation remains the province of CAMTC and the state, and  
            that fees and regulations imposed by local governments on  
            massage businesses and establishments be necessary and  
            reasonable. 

          53)State that the Legislature finds and declares that the  
            regulation of the profession of massage therapy is a matter of  
            statewide concern and not a municipal affair, and that this  
            Act applies to all cities, counties, and cities and counties,  
            including charter cities and charter counties.

          54)Make numerous other technical and clarifying changes to the  
            Act. 

           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.  


           COMMENTS  :   

          1)Purpose of the bill.  This bill substantially revises the  
            existing massage therapy law, incorporating changes which were  
            recommended as a result of the 2014 sunset review process.   
            This bill would revise, recast, and update multiple provisions  
            of current law to give local governments greater authority to  
            regulate massage establishments and businesses while creating  
            a more robust statewide regulatory system for massage  
                                                        professionals.  Among its major provisions, this bill would  








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            return land use authority over massage establishments and  
            businesses to cities and counties; reconstitute CAMTC's  
            governing Board and enhance its disciplinary authority; raise  
            professional standards for massage professionals; and create  
            new consumer-oriented protections for individuals seeking  
            massage services.  This bill is intended to address the  
            concerns raised by local governments battling illegal  
            businesses engaged in prostitution and human trafficking while  
            protecting the legitimate massage therapy profession.  This  
            bill is author-sponsored.   

           2)Authors' statement.  According to Assembly Member Bonilla, "in  
            an effort to enhance consumer protection and local control,  
            this bill makes major changes to the current regulatory system  
            for massage therapy.  AB 1147 will restore the ability of  
            cities to better control massage establishments while raising  
            certification standards and creating a stronger regulatory  
            system for massage professionals.  It will also reconstitute  
            the Board of the California Massage Therapy Counsel to make it  
            more inclusive by incorporating a broader range of  
            stakeholders who care about the massage industry in  
            California, including a city attorney and a member of an  
            anti-human trafficking organization.  It also clarifies the  
            rights of the profession, and sets out certain protections for  
            consumers of massage.  

            "Unfortunately, the current massage therapy law (SB 731  
            (Oropeza), Chapter 384, Statutes of 2008) had serious  
            unintended consequences; with bad actors masquerading as  
            legitimate massage professionals exploiting loopholes in  
            current law to insulate themselves against the ability of  
            local governments and law enforcement to shut them down.  This  
            bill will give that power back to the cities and counties,  
            which will go a long way towards eliminating the brothel  
            owners and human traffickers who are hurting women, hurting  
            neighborhoods, hurting the profession, and hurting  
            California." 

            Assembly Member Gomez writes, "it's time we take back control  
            of our neighborhoods with this reform measure.  Legitimate  
            massage therapists have a role in our communities.  But the  
            current law has allowed criminal elements to hide behind the  
            law and disrupt our communities.  The most critical piece of  
            the reform measure is that the bill will return land use  
            authority to cities and counties.  The broad pre-emption of  








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            local land use authority for 'certified-only' massage  
            professionals has been removed, returning local land use  
            control back to the cities and counties.  Now our communities  
            will once again have a voice in the process."

            Assembly Member Holden writes, "this bill frees cities and law  
            enforcement to do what they do best: guard the best interests  
            of its citizens and resident businesses and protect their  
            community from criminals.  This bill allows good massage  
            therapists to be recognized and bad actors to be put out of  
            business.  AB 1147 removes the most detrimental parts of the  
            law and ensures that control over planning of our communities  
            is handed back to the people, not business owners with bad  
            intentions."

          3)The profession of massage therapy.  Massage professionals  
            treat clients by using touch to manipulate the soft-tissue and  
            muscles of the body.  Massage therapy is a healing art used to  
            relieve pain, rehabilitate injuries, reduce stress, increase  
            relaxation, and increase the general wellness of clients.   
            Massage professionals work in a variety of settings, including  
            private offices, spas, hospitals, fitness centers and shopping  
            malls.  According to the Bureau of Labor Statistics,  
            employment of massage professionals is projected to grow 23%  
            from 2012 to 2022, much faster than the average for all  
            occupations.   

            Titles commonly used in California by the massage profession  
            may include:  massage therapist, massage practitioner, CMT,  
            CMP, massage technician, bodyworker, masseur, and masseuse.   
            Current law makes it an unfair business practice for anyone  
            not certified by CAMTC to use the title of CMP or CMT.

          4)Regulation of massage therapy.  SB 731 established a system  
            for the voluntary statewide certification of massage  
            professionals by a Massage Therapy Organization, which was  
            renamed CAMTC in 2011.  The goal of establishing what would  
            become CAMTC was to standardize the process for certification  
            throughout the state.  Certification allows massage  
            professionals to work in multiple California locations without  
            the need for duplicative local certifications.  CAMTC is led  
            by a volunteer Board comprised of professionals from  
            California's massage community, including massage  
            associations, schools, and businesses.  CAMTC's authority in  
            statute is set to expire on January 1, 2015, unless that  








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            authority is extended by legislative action.    

             Currently, massage professionals in California can obtain one  
            of two certification levels: CMPs are required to complete at  
            least 250 hours of education and training, while CMTs are  
            required to complete at least 500 hours of massage education  
            and training 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  
            certificates are renewed biannually, and certificate holders  
            are not required to obtain continuing education.  Of the 250  
            hours of educational requirements for CMPs, 100 hours must be  
            in the instruction of anatomy, physiology, contraindications,  
            health and hygiene, and business ethics.  The current law  
            permitting the certification of CMPs is scheduled to be  
            repealed on December 31, 2015.  CAMTC regulates over 45,000  
            CMPs and CMTs in California.   
             
          5)CAMTC's Board of Directors.  The current Board is largely  
            comprised of professionals from California's massage  
            community, including massage associations, schools, and  
            businesses.  CAMTC's bylaws provide for a total of 20 members,  
            although it has only 19 members at the moment.  In addition to  
            the power to issue certificates, CAMTC also has the authority  
            to discipline certificate holders and unapprove massage  
            schools.   

             a)   Discipline.  If a certificate holder violates the terms  
               of certification, CAMTC may suspend or revoke his or her  
               certification, but it cannot exercise cite and fine  
               authority.  CAMTC may deny, revoke or impose probationary  
               conditions on 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 CAMTC's  
               Division of Professional Standards.  According to CAMTC,  
               there have been approximately 248 certificate suspensions  
               or revocations since 2010.
              
             b)   Schools.  While CAMTC does not accredit or affirmatively  
               approve massage schools, it does have the responsibility to  








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               determine if the curriculum of a school meets the legal  
               requirements for applicants to obtain CAMTC certification.   
               In practice, this means that schools are generally treated  
               as approved unless and until CAMTC takes action to  
               "unapproved" them.  Schools must meet certain requirements  
               such as be nationally accredited, approved by the  
               California Bureau for Private Postsecondary Education  
               (BPPE), be a public institution, or a California community  
               college in order to be approved for CAMTC's purposes.

          6)Oversight hearings and sunset review.  In March and April of  
            2014, the Assembly Business, Professions and Consumer  
            Protection (BPCP) Committee and the Senate Business,  
            Professions and Economic Development (BPED) Committee  
            conducted joint oversight hearings to review nine regulatory  
            entities, including CAMTC.  The BPCP and BPED Committees began  
            their review of these entities over three days of public  
            hearings in March.  This bill, like other sunset bills, is  
            intended to implement the legislative changes recommended in  
            the background reports authored by the Senate BPED and  
            Assembly BPCP Committees.

          7)Issues raised during CAMTC's sunset review.  This was the  
            first sunset review for CAMTC, which highlighted numerous  
            issues about the operations of the organization and the impact  
            of the massage therapy law - particularly its land use  
            preemption provisions - on local governments.  This bill  
            represents an effort to address concerns raised by the BPCP  
            and BPED Committees, massage professionals, local governments,  
            and other interested parties.  The major provisions of this  
            bill reflect those issues raised during the sunset review  
            process, of which many are noted in the BPCP sunset review  
            report.   

             a)   Limitations on fees.  Under current law, the Board is  
               permitted to establish fees reasonably related to the cost  
               of providing services and carrying out its ongoing duties  
               and responsibilities, including fees for certification and  
               recertification.  Currently, the Board is required, under  
               its bylaws, to assess the certification and recertification  
               fees annually.  Although the certification and  
               recertification fees have not been raised since the  
               inception of CAMTC, the BPCP Committee recommended capping  
               the fees in statute to ensure greater certainty for massage  
               professionals in the future.  The fee cap established in  








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               this bill will allow the Board to raise fees up to $300, if  
               an annual assessment by the Board determines an increase of  
               the fees, as authorized by CAMTC's bylaws, is warranted.   
               Additional prior notice provisions for fee increases were  
               incorporated as well. 

             b)   Certification tiers.  The legislation that authorized  
               CAMTC also created the two-tier certification system (CMT  
               and CMP) in order to provide a pathway to certification for  
               many massage professionals who had been practicing in  
               California prior to a statewide voluntary certification  
               program.  In order to raise the standards of the profession  
               as a whole in California, the BPCP sunset report  
               recommended the elimination of the lower certification  
               tier, the CMP.   

             This bill will sunset the existing CMP certification tier for  
               new applicants, beginning January 1, 2015, instead of  
               December 31, 2015, under current law, and will require all  
               applicants for CMT certification to obtain the required 500  
               hours of education from an approved school and pass an  
               examination.   
                
                This bill would also revise the educational requirements  
               for the CMT certification by requiring applicants to  
               complete all of the 500 hours of required education from a  
               school approved by CAMTC, and specifies that 100 of the 500  
               hours required for certification must be in the subjects of  
               anatomy, physiology, contraindications, health and hygiene,  
               and business ethics.  

             c)   Certification revocation, suspension or denial.   
               According to CAMTC's procedures for discipline, revocation,  
               or denial, a certificate may be denied or revoked for a  
               wide variety of reasons reasonably related to protecting  
               public safety, including failure to meet statutory  
               requirements, violations of law, and certain dishonest  
               acts.   

               In order to increase public confidence that CAMTC  
               certificate holders are operating appropriately, this bill  
               expands the definition of unprofessional conduct to  
               prohibit certain behaviors and practices of concern to  
               local governments.  Those new standards include engaging in  
               sexually suggestive advertising, engaging in any form of  








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               sexual activity on the premises of a massage establishment,  
               or practicing massage on a suspended certificate or outside  
               the of the conditions on a restricted certificate.  These  
               additions will improve CAMTC's ability to discipline  
               certificate holders who engage in inappropriate or  
               unprofessional behavior while providing massage services. 

             d)   School approval.  The 2014 sunset review report raised  
               the issue of CAMTC's current "reactive" school approval  
               process.  According to CAMTC, it currently does not  
               proactively approve schools, but rather "unapproves" a  
               school if it finds that a school does not meet the minimum  
               standards for training and curriculum or operates  
               inappropriately.  Schools may be unapproved for selling or  
               offering to sell transcripts, failing to require students  
               to attend the classes listed on the transcript, failure to  
               require students to attend all of the hours listed on the  
               transcript, or engaging in fraudulent practices.  

             While CAMTC may unapprove a school for a number of reasons,  
               the most common reason is transcript discrepancies, meaning  
               the transcript does not accurately reflect the education  
               actually received by the applicant.  In November of 2013,  
               CAMTC reported that it had unapproved approximately 46  
               schools and placed seven on its "inadequate education  
               list," which means that applicants who have taken courses  
               at those schools must submit additional proof of education  
               beyond a transcript and diploma.  
                
                The sunset review report recommended that CAMTC take  
               proactive steps to improve their current complaint-driven  
               unapproval process, and instead find a more proactive-based  
               approval process.  In response, this bill authorizes CAMTC  
               to take an affirmative role in establishing an approval  
               process for schools by requiring that CAMTC develop  
               policies, procedures, rules or bylaws governing the  
               requirements and process for the approval and unapproval of  
               schools, including any corrective action to return a school  
               to approved status.  This bill also provides CAMTC with  
               explicit authority to establish a reasonable fee for the  
               inspection or approval of schools.  
           
              e)   Board composition.  CAMTC is led by a volunteer Board  
               primarily comprised of professionals from across  
               California's massage community, including massage  








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               associations, schools, and businesses.  CAMTC currently has  
               19 members with one vacancy.       

             In order to make the Board more responsive based on feedback  
               from stakeholders, the BPCP sunset review report  
               recommended that the number of board members be reduced to  
               15 or less, that local government or local law enforcement  
               representation be increased, and a California residency  
               requirement be imposed.  This bill reconstitutes CAMTC's  
               Board to reduce the total number of authorized board  
               members from 20 to 13, increases the diversity of the Board  
               by making the seats available to a broader array of  
               stakeholders, including public health and anti-human  
               trafficking advocates, and requires all appointees to be  
               residents of California.  
                
              f)   Increased accountability of CAMTC.  As a voluntary,  
               non-profit organization CAMTC has discretion in many of its  
               administrative practices and procedures.  While this  
               structure is in place to provide the organization with the  
               flexibility it needs to fulfill its statutory mission while  
               operating as an independent non-profit entity, the BPCP  
               sunset review report highlighted a number of areas where  
               administrative accountability can be improved, including  
               obtaining additional customer service information from  
               stakeholders, providing better enforcement data, enhancing  
               communication with local governments and law enforcement  
               representatives, and sharing salary data, contract awards  
               and hiring standards.  

             To that end, this bill mandates expanded data sharing with  
               law enforcement and local governments, and requires CAMTC  
               to provide specified reports on the above-mentioned topics  
               to the appropriate policy committees of the Legislature  
               beginning January 1, 2016.   

             g)   Local control.  SB 731 was originally intended to  
               provide uniform standards for the education, training and  
               background investigations for massage practitioners to help  
               professionalize the massage industry in California.   
               Moreover, it also attempted to create a brighter  
               distinction between legitimate massage professionals and  
               the illegal sex trade by creating a reliable certification  
               system for professionals and eliminating discriminatory  
               business regulations on legitimate healing arts  








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               professionals.  As many of the professionals involved in  
               massage therapy are sole practitioners who work from their  
               home, travel to a client's home or contract to work at spas  
               in various cities and counties, the concept of a statewide  
               certification program was designed to help alleviate the  
               need for duplicative certification standards which varied  
               from city to city.  From a consumer protection perspective,  
               a voluntary statewide certification meant that a "certified  
               professional" has meet educational, training and background  
               standards sufficient to give consumers some reassurance  
               that the massage professional providing services was  
               properly educated, trained and obtained the appropriate  
               background clearance.  

               Because the legitimate massage profession in California had  
               often been unfairly linked to illegal practices,  
               particularly prostitution and human trafficking, some  
               cities and counties established massage ordinances that  
               appeared to presume that massage professionals and clients  
               may be engaging in prostitution, which led to a host of  
               problems for real massage therapists, many of whom operate  
               part-time or as sole practitioners.  

               For example, the Riverside Municipal Code requires massage  
               professionals to wear special attire in an attempt to  
               dissuade potential prostitution, but also marking the  
               profession as 'suspect.  The Temecula Municipal Code  
               requires massage establishments to post a notice to patrons  
               that "massage rooms do not provide complete privacy and are  
               subject to inspection by the Temecula Police Department  
               without prior notice," which is off-putting to some  
               clients.  As another example, the Westminster Municipal  
               Code requires massage technician applicants to complete a  
               medical examination that tests for the HIV Virus, Syphilis,  
               Gonorrhea, Tuberculosis, and Hepatitis 30 days prior to  
               submitting an application as a massage technician - tests  
               which are required of no other healing arts professional  
               and imply a likelihood of engaging in prostitution.  

               This bill attempts to balance local governments' real need  
               to regulate businesses throughout their jurisdictions with  
               the need to protect certificated massage professionals by  
               giving local governments back their land use authority to  
               regulate massage establishments and businesses while  
               imposing narrowly-tailored protections to ensure that the  








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               profession will continue to be regulated consistently  
               across the state.  

             h)   Practice protection for massage professionals.  Because  
               massage as a profession is not formally licensed by the  
               state, a voluntary certification was designed as a  
               mechanism to create uniform education and practice  
               standards as opposed to multiple, duplicative local  
               ordinances which vary in the requirements needed to  
               practice massage.  The voluntary certification allows  
               massage professionals to work in multiple jurisdictions  
               without a need to obtain multiple costly city licenses to  
               practice.  

             However, as some local governments may have ordinances now or  
               in the future that could impinge on the practice rights of  
               certified massage professionals; this bill enumerates a  
               number of new protections for certificated individuals.   
               Local governments will not be permitted to impose a  
               requirement that certified massage professionals be  
               required to take any test, medical examination, or  
               background check, or otherwise comply with any additional  
               educational requirements beyond what is already required.   
               Nor may a city or county impose a requirement that  
               certified massage professionals obtain any other license,  
               permit, certificate or authorization to provide massage for  
               compensation, excluding those normally required to operate  
               a business.  This bill also prohibits the imposition of a  
               dress code requirement in excess of what is already  
               considered unprofessional conduct by CAMTC, and protects  
                                                                  certified massage professionals from interference in their  
               performance of legitimate massage techniques approved by  
               CAMTC.   

             i)   Continuation of CAMTC and a voluntary certification  
               program.  The 2014 sunset review report found overall that  
               the health, safety and welfare of consumers is protected  
               through the voluntary certification of massage  
               professionals, which ensures greater consistency and  
               quality amongst professionals while giving local  
               governments the tools to more easily identify trustworthy  
               practitioners.  The current regulatory system operated by  
               CAMTC combines education, training, and background  
               standards into a systematic formal review process whereby  
               only those individuals who have met the standards can  








                                                                  AB 1147
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               represent themselves as massage professionals.    

               However, the BPCP sunset review report also found that  
               CAMTC faces many challenges in fulfilling its mission:   
               there is a need for greater oversight of educational  
               institutions; a need for stronger administrative controls;  
               questions regarding proper board composition; and a strong  
               desire from local governments to regain their land use  
               authority over establishments using certified  
               professionals. 

               If CAMTC were to be allowed to sunset, consumers would lose  
               any hope of making useful distinctions in quality between  
               massage practitioners, practitioners would be again subject  
               to a patchwork of licensing regimes, and local governments  
               would be forced to develop expensive new regulatory  
               processes from scratch.  

               In response, this bill provides for only two-year extension  
               of CAMTC's sunset date, which will maintain a voluntary  
               certification process for massage professionals while  
               simultaneously giving back to local governments the proper  
               authority they need to regulate massage businesses and  
               establishments.  CAMTC will need to be proactive in  
               addressing these underlying issues in order to fulfill its  
               mandate and earn the trust of its many stakeholders before  
               its next sunset review in 2016.  In order to provide more  
               guidance in that endeavor, this bill also clarifies CAMTC's  
               mission by specifying that the highest priority for CAMTC  
               is the protection of the public, and whenever other  
               interests of CAMTC conflict, the protection of the public  
               shall be the prevailing priority 
                  
           8)Practice rights for licensed, permitted or certificated  
            professions.  Under current law, a city or county is generally  
            restricted from prohibiting a person or group of persons  
            authorized by DCA via a license, certificate or other such  
            means to engage in a particular profession, from engaging in  
            that occupation, while allowing a city or county to adopt or  
            enforce any local ordinance governing zoning, business  
            licensing, or reasonable health and safety requirements.  This  
            bill would put CAMTC and its certificate holders under that  
            protection as well, while clarifying that local jurisdictions  
            have full authority to adopt local ordinances governing the  
            zoning, business licensing, and reasonable health and safety  








                                                                  AB 1147
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            requirements of the individual communities.  In this way,  
            regulation of the profession and the individuals practicing it  
            remains the sole purview of the state and CAMTC, but land use  
            decision-making over massage establishments and businesses  
            returns to the local governments themselves.  

          9)Prohibitions.  In an effort to standardize massage industry  
            practices while providing local jurisdictions with the ability  
            to properly regulate massage businesses and establishments,  
            this bill establishes a small number of narrow prohibitions on  
            local regulations that would be discriminatory against  
            individual professionals and massage businesses and  
            establishments. It also enacts changes protective of the  
            massage consumer as well. 

            Those protections would prohibit local jurisdictions from  
            enacting ordinances which:  require massage businesses or  
            establishments to be zoned as adult entertainment; require an  
            establishment or business to have windows or short walls that  
            interfere with a consumers expectation of privacy; impose  
            unnecessary draping or covering requirements on consumers;  
            require a business with one employee from locking its door,  
            thereby jeopardizing employee and customer safety; or posting  
            any signs or any notice in a business that may be viewed by  
            clients that contains graphic language describing sexual acts,  
            genitalia, or contraceptives.  This bill also explicitly  
            prohibits the imposition of medical testing, duplicative  
            education standards and examinations, and dress code  
            requirements on individuals who are CAMTC certified.   
                  
           10)Previous version.  As passed by the BPCP Committee on January  
            21, 2014, (11-0), and the Assembly floor on January 27, 2014,  
            (68-1), this bill required an applicant for certification as a  
            massage practitioner to pass a massage and bodywork competency  
            examination that meets specified standards and is approved by  
            CAMTC. 

          However, most of the provisions of this bill were completed and  
            amended into this bill while in the Senate, and the provisions  
            regarding the massage examination provision were deleted.  As  
            a result, the language of this bill in its current form has  
            not yet been heard in an Assembly Policy Committee.    

           
          Analysis Prepared by  :    Elissa Silva / B., P. & C.P. / (916)  








                                                                  AB 1147
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          319-3301 


                                                               FN: 0005520