BILL ANALYSIS Ó
AB 1147
Page 1
Date of Hearing: August 28, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
AB 1147 (Bonilla, Gomez & Holden) - As Amended: August 22,
2014
SUBJECT : Massage therapy.
SUMMARY : Substantially revises existing law regulating
certified massage therapy professionals, including 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), reconstitution
of CAMTC's board of directors (Board), an increase in
educational standards for certified massage professionals, and
the creation of new protections for consumers of massage
services. Specifically, this bill :
1)Clarifies that a city or county may not prevent an individual
licensed or otherwise authorized under the Business and
Professions Code (BPC) from engaging in their regulated
profession.
2)Establishes the Massage Therapy Act (Act).
3)Defines the terms "approved school," "certificate,"
"compensation," "Council," "massage," "massage practitioner,"
"massage therapist," as specified.
4)Defines 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)Defines 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."
6)Establishes CAMTC to carry out the responsibilities and duties
of the Act, and authorizes CAMTC to develop rules and bylaws
in addition to policies and procedures to carry out the duties
AB 1147
Page 2
of the Act.
7)Authorizes 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)Authorizes 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)Repeals the authority, structure and composition of CAMTC's
Board on September 15, 2015.
10)Specifies 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
DCA;
g) One member appointed by the California Association of
Private Postsecondary Schools;
AB 1147
Page 3
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)Requires the Board to establish fees reasonably related to
the cost of providing services and carrying out its ongoing
responsibilities and duties, as specified.
12)Provides that the fee for certification or renewal may be no
higher than $300.
13)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.
14)States 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 requires CAMTC to update its Internet Web site and notify
all certificate holders and affected applicants by email
within 14 days if CAMTC increases certification fees.
15)States that the protection of the public is the highest
AB 1147
Page 4
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)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 from CAMTC approved schools, and specifies that of those
500 hours, a minimum of 100 hours must address anatomy and
physiology, contraindications, health and hygiene, and
business ethics.
17)Requires all applicants for certification to take and pass a
massage and bodywork competency assessment and examination, as
specified.
18)Requires an applicant for certification to successfully pass
a background investigation, as specified, and pay the required
fees.
19)Permits 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)Requires 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)Prohibits 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)Provides that a certificate issued by CAMTC is subject to
renewal every two years, and authorizes CAMTC to provide for
the late renewal of a certificate or registration.
23)Requires CAMTC, prior to issuing a certificate to an
applicant or designating a custodian of records, to require
AB 1147
Page 5
the applicant or custodian of records to submit fingerprint
images, as specified.
24)Establishes the process for obtaining the record of state and
federal level convictions and of state and federal level
arrests, as specified.
25)Permits CAMTC to receive arrest notifications and other
background material about applicants and certificate holders
from a city, county, or city and county.
26)Specifies 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)Requires 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)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;
AB 1147
Page 6
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)Permits CAMTC to deny an application for a certificate for
the commission of any specified criminal acts.
30)Enhances CAMTC's authority to discipline a certificate holder
to include the imposition of probation, which may include
limitations or conditions on practice.
AB 1147
Page 7
31)Requires 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)States 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)Specifies 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)Requires 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,
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
AB 1147
Page 8
holder, within 10 business days.
35)Permits an applicant or certificate holder to challenge a
denial or discipline decision, as specified.
36)Provides 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)Prohibits 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)Clarifies 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)Requires 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)Requires 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)States 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.
42)Requires CAMTC to determine whether the school from which an
applicant has obtained his or her education meets applicable
requirements, as specified, and requires CAMTC to investigate
AB 1147
Page 9
the facts prior to issuing a certificate, including oral
interviews or any other investigation deemed necessary to
receive factual information, as specified.
43)Requires 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)Authorizes CAMTC to approve and unapprove schools and specify
corrective action in keeping with the purposes of protecting
the public, as specified.
45)Authorizes 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)Provides that CAMTC may only be sued in the county of its
principal office, which is Sacramento, unless otherwise
designated by CAMTC.
47)States 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)States that the provisions of this chapter are severable.
49)Requires 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,
d) Performance metrics, including, but not limited to,
AB 1147
Page 10
total application denials, discipline against certificates,
inspections of schools, and complaints, as specified.
50)Extends the sunset date of CAMTC by two years, until January
1, 2017, and subjects CAMTC to review by the appropriate
policy committees of the Legislature.
51)Prohibits 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) Imposes a dress code requirement in excess of that
already required of certificate holders;
h) Imposes a requirement that an individual holding a
certificate issued in accordance with the Act obtain any
other license, permit, certificate, or other authorization
to provide massage for compensation; provided, however,
AB 1147
Page 11
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)States 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)States 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)Makes numerous other technical and clarifying changes to the
Act.
EXISTING LAW
1)Provides for certification of massage practitioners and
massage therapists, as defined, by the CAMTC and
specifies that the CAMTC is a nonprofit organization
meeting specified requirements, and imposes certain
duties on the CAMTC. (Business and Professions Code
Section (BPC) 4600 (c), (d) and (e), 4600.5 (a) and (b)
(2))
2)Requires CAMTC to be governed by a Board of up to 20
members, as specified. (BPC 4600.5(b))
3)Requires that the meetings of CAMTC be subject to the
rules of the Bagley-Keene Open Meeting Act, as specified.
(BPC 4600.5(d))
AB 1147
Page 12
4)Provides CAMTC with the responsibility to determine that
the school or schools from which an applicant has
obtained the appropriate education meet the educational
requirements, as specified, and if CAMTC has any reason
to question whether or not the applicant received the
required education from the school or schools that the
applicant is claiming, CAMTC will investigate the facts
to determine that the applicant received the required
education prior to issuing a certification. (BPC
4601(g)(1))
5)Provides that prior to issuing a certificate to the
applicant or designating a custodian of records, CAMTC
shall obtain fingerprints, which may be in an electronic
format, from an applicant for certification as a massage
therapist or massage practitioner for the purpose of
conducting a criminal background check, and specifies
that the Department of Justice (DOJ) shall provide the
CAMTC with the specified information relating to an
applicant's criminal history. (BPC 4601.3)
6)Provides that CAMTC may discipline a certificate holder
by any, or a combination of, the following methods:
placing the certificate holder on probation; suspending
the certificate and the rights conferred on a certificate
holder for a period not to exceed one year; revoking the
certificate; suspending or staying the disciplinary
order, or portions of it, with or without conditions; and
taking other action as CAMTC deems proper. (BPC
4602(a)(1-2)
7)Provides that if CAMTC receives notice that a certificate
holder has been arrested and charges have been filed by
the appropriate prosecuting agency against the
certificate holder, alleging a violation, as specified,
CAMTC must immediately suspend the certificate and notify
the certificate holder and any employer of record as
specified. (BPC 4602(c)(1))
8)Requires the CAMTC to provide specified information
regarding certificate holders to any local law
enforcement or other agency that regulates massage
therapy, and likewise the CAMTC shall accept and review
any information pertaining to a certificate holder
AB 1147
Page 13
provided by local law enforcement or other agency that
regulates massage therapy, and shall have the
responsibility to take any actions as authorized under
the Act and are warranted by the information. (BPC
4602.5(a)(c))
9)Specifies that the holder of a CAMTC certificate has the
right to practice massage, as specified, in any city,
county, or city and county and is not required to obtain
any other license, permit or other authorization unless
specified, to engage in that practice. (BPC 4612(a)(1))
10)Specifies that a city, county or city and county cannot
enact an ordinance that requires a license, permit or
other authorization to provide massage for compensation
by an individual who is certified, as specified, and who
is practicing consistent with the qualifications
established by his or her certification, or by a massage
business or establishment that employs or uses on
persons who are certified, as specified, to provide
massage for compensation and provides that no provision
of any ordinance enacted by a city, county or city and
county may be enforced against a certified individual, as
specified. (BPC 4612(a)(2))
11)Clarifies that nothing shall be interpreted to prevent a
city, county, or city and county from adopting or
enforcing any local ordinance that provides for the
reasonable health and safety requirements for massage
establishments or businesses which employ or use persons
who are not certified, as specified. (BPC 4612(3))
12)Requires a massage establishment or business that is a
sole proprietor, where the sole proprietor is certified,
or that employs or uses only certified individuals, to
maintain on its premises evidence for review by local
authorities that demonstrates that all persons providing
massage services are certified; and nothing can prevent
local authorities from including in an ordinance a
requirement for specified massage businesses to file
copies or provide other evidence of the certificates held
by the persons providing massage. (BPC 4612 (b)(1)(2))
13)Specifies that a city, county, or city and county may
charge a massage business or establishment a business
AB 1147
Page 14
licensing fee provided that the fee is no higher than the
lowest fee that is applied to other individuals and
businesses providing professional services, as specified.
(BPC 4612(B)(3))
14)Specifies that nothing can prohibit a city, county, or
city and county from enacting ordinances, regulations,
rules, requirements, restrictions, land use regulations,
moratoria, conditional use permits, or zoning
requirements applicant to an individual certified, as
specified, or to a massage establishment or business that
utilizes only certified individuals, as specified, to
provide massage for compensation, provided that unless
otherwise exempted, these ordinances, regulations,
requirements, restrictions, land use regulations,
moratoria, conditional use permits, and zoning
requirements be no different than the requirements that
are uniformly applied to all other individual and
businesses providing professional services, as specified.
(BPC 4612(b)(4))
15)Specifies that local building code or physical facility
requirements applicable to massage establishments or
businesses may not require additional restroom, shower or
other facilities that are not uniformly applicable to
other professional or personal service businesses, nor
shall building or facility requirements be adopted that
require unlocked doors when there is no staff available
to ensure security for clients and massage staff who are
behind closed doors, or require windows that provide a
view into massage rooms that interfere with the privacy
of clients of the massage business. (BPC 4612(b)(5))
16)Specifies that an owner or operator of a massage
business or establishment who is certified, as specified,
is responsible for the conduct of all employees or
independent contractors working on the premises of the
business, and failure to comply may result in revocation
of the owner's or operator's certificate, as specified.
(BPC 4612(c))
17)Permits a city, county, or city and county to adopt a
local ordinance that is applicable to massage businesses
or establishments, as specified, and does either of the
following:
AB 1147
Page 15
a) Provides that duly authorized officials of the
city, county, or city and county have the right to
conduct reasonable inspections, during regular
business hours, to ensure compliance, with the local
ordinance, or other applicable fire and health and
safety requirements; or,
b) Requires an owner or operator to notify the
city, county, or city and county of any intention to
rename, change management or convey the business to
another person. (BPC 4612(d))
18)Authorizes a city, county, or city and county to require
a background check of an owner or operator of a massage
business or establishment who owns five percent or more
of a massage business or massage establishment and who is
not certified, as specified. (BPC 4612(e))
19)Specifies that a city, county, or city and county may
adopt a local ordinance governing any person who is not
certified, as specified. (BPC 4613)(a))
20)Specifies that a city, county, or city and county may
adopt a local ordinance which restricts the opening of a
new massage establishment in a location in which a
massage establishment has been closed due to criminal
activity. (BPC 4613(c))
21)Repeals the above provisions on January 1, 2015, as
specified. (BPC 4620)
22)States that a city, county or city and county cannot
prohibit a person or group of persons, authorized by one
of the agencies in the Department of Consumer Affairs, by
a license, certificate, or other such means to engage in
a particular business, from engaging in that business,
occupation or profession or any portion, thereof. (BPC
460)(a))
23)States that no city, county, or city and county can
prohibit a healing arts professional licensed with the
state, as specified, from engaging in any act or
performing any procedure that falls within the
professionally recognized scope of practice of that
AB 1147
Page 16
licensee. (BPC 460(b))
24)Provides that the above prohibition does not prevent a
city, county, or city and county from adopting or
enforcing a local ordinance governing zoning, business
licensing, or reasonable health and safety requirements
for establishments or businesses of a healing arts
professional, as specified. (BPC 460(2))
25)Provides that nothing prohibits a city, county, or city
and county from levying a license tax solely for the
purpose of covering the cost of regulation. (BPC 460(c))
26)Authorizes the legislative body of a city for
incorporated areas or county for unincorporated areas to
enact an ordinance which provides for the licensing for
regulation of the business of massage when carried on
within the city or county. (GOV 51030)
27)Authorizes an ordinance to condition the issuance of a
license to engage in the business of massage upon proof
that a massage business meets the reasonable standards
set by the ordinance, as specified. (GOV 51034)
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
California's existing massage therapy law, incorporating
changes which were recommended as a result of the 2014 sunset
review process. AB 1147 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 return to cities and
counties their land use authority over massage establishments
and businesses; reconstitute CAMTC's governing Board and
enhance its disciplinary authority; raise educational
standards for massage professionals; and create new
consumer-oriented protections for individuals seeking massage
services. AB 1147 is intended to address the concerns raised
AB 1147
Page 17
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 Assemblymember 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) 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."
Assemblymember 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
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."
Assemblymember Holden writes, "this bill frees cities and law
enforcement to do what they do best: guard the best interests
AB 1147
Page 18
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, improve
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 (Oropeza), Chapter 384,
Statutes of 2008, 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 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
AB 1147
Page 19
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
certified CMPs and CMTs in California.
5)CAMTC 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 restrict, suspend or revoke his
or her certification, although it cannot exercise cite and
fine authority. CAMTC may discipline 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
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
"unapprove" them. Schools must meet certain requirements,
such as being nationally accredited, approved by the
California Bureau for Private Postsecondary Education
AB 1147
Page 20
(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 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.
The sunset review process itself provides a formal opportunity
and mechanism for DCA, the Legislature, the boards and
bureaus, regulatory entities, interested parties and other
stakeholders to discuss the performance of the board or
bureau, and make recommendations for improvement. This is
typically performed on a standard four-year cycle as
envisioned by SB 2036 (McCorquodale) (Chapter 908, Statutes of
1994), unless it is determined by the Legislature that the
entity be reviewed sooner to address any outstanding issues.
The major provisions of this bill are based on specific issues
raised and addressed in the sunset report released by the BPCP
committee.
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
AB 1147
Page 21
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
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.
In addition, this bill requires CAMTC to notify certificate
holders by email 90 days prior to a proposed vote on any
fee increase, along with a posting on CAMTC's Web site
within 14 days of the vote to increase the fees. The 90
day and 14 day notice will help to increase the
transparency of CAMTC for its certification population and
other interested stakeholders.
b) Certification tiers . The legislation that authorized
CAMTC also created the two-tier certification system (CMT &
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 raise the educational requirements for
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
AB 1147
Page 22
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
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 unexplained discrepancies in a
student's transcript. In November 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
AB 1147
Page 23
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
associations, schools, and businesses. CAMTC currently has
19 members with one vacancy.
In order to make the Board more responsive to 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 disclosing salary data, contract
awards and hiring standards.
To that end, this bill 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 (Oropeza), Chapter, 384 Statutes
AB 1147
Page 24
of 2008, 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 while eliminating discriminatory
business regulations on legitimate healing arts
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 met 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 legitimate 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
consumers. 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
AB 1147
Page 25
which are required of no other healing arts professional
and imply a high 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'
practice and dignity by giving local governments back their
land use authority to regulate massage establishments and
businesses while imposing narrowly-tailored protections to
ensure that the 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 their requirements. This 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. 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, such as a business license.
This bill also prohibits the imposition of dress code
requirements 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 . Overall, the 2014 sunset review report found that
the health, safety and welfare of consumers is protected
AB 1147
Page 26
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
represent themselves as massage therapists or massage
practitioners.
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 a 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 support 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 conflict, the protection of the public shall be
CAMTC's 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
AB 1147
Page 27
authorized by DCA via a license, certificate or other such
means 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 requirements of the individual
communities. In this way, regulation of the profession and the
individuals practicing it remain 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 unnecessary and harmful to
individual professionals and massage businesses. It also
enacts changes to better protect 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)Committee comments on the transition away from preemption .
While SB 731 (Oropeza) established the voluntary certification
process, it also created a preemption on local government's
ability to regulate massage establishments and businesses
which left both local government regulators and CAMTC with
little regulatory authority over massage businesses and
AB 1147
Page 28
establishments that used only certified individuals. In order
to correct the deficiencies of SB 731, this bill shifts
regulatory oversight of businesses back to cities and counties
to regulate land use for massage establishments and
businesses. However, it is unclear how the transition will be
executed in each local jurisdiction.
While the massage industry has grown in California since the
passage of SB 731, the debate continues as to whether that
growth was a direct result of SB 731, or a result of increased
interest in massage generally as a means of healthcare and
wellness. However, it is clear that a change in the
regulatory process is necessary for local jurisdictions to
eliminate bad actors, who took advantage of the law, while
maintaining a healthy massage industry in each city or county.
Representatives of the massage profession have raised concerns
that, if this bill is signed into law, local governments may
begin to impose unreasonable or discriminatory requirements on
massage establishments, or charge businesses very high fees
and business license taxes. While it is unknown what
regulations or fees local governments may impose on massage
businesses as a result of the end of preemption, it should be
noted that there are limits in existing law that are designed
to prevent cities and counties from imposing fees or
enforcement costs for licenses and permits from exceeding the
reasonable cost to the cities to administer.
Given that the experience of legitimate massage establishments
and business will now be largely in the hands of the
individual localities, this bill clearly states the intent of
the Legislature that local governments be mindful of
legitimate massage businesses during the transition from
preemption back to local control, and impose only those
regulations and fees that are necessary and reasonable.
Moreover, the short two-year sunset extension ensures that the
Legislature will be able to examine the performance of these
new provisions during the transition and make any needed
follow-up changes.
11)Arguments in support . The League of California Cities writes
in support, "we believe the bill balances the interests of the
state in certifying individual massage therapists and local
governments in regulating the business of providing massage
AB 1147
Page 29
therapy. AB 1147 seeks to provide protections for those that
want to open a legitimate business and provide a valuable
service. The bill recognizes the right of a massage
professional to engage in the practice of massage that falls
within the professionally recognized scope of practice,
prohibits local jurisdictions from regulating massage as adult
entertainment, and maintains responsibility for the
professional conduct of certified individuals by the CAMTC."
CAMTC writes in support, "CAMTC supports [this bill] and is
mindful of its role to assist local jurisdictions by vetting
and disciplining certificate holders so that the local
jurisdictions can meet their duty to maintain the highest
standards of conduct in massage establishments."
12)Previous version . As passed by the Business, Professions and
Consumer Protection 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 amended into
AB 1147 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 this Committee.
13)Related legislation . AB 2739 (Assembly Business, Professions
and Consumer Protection Committee) of 2014 would have extended
the sunset date for the Council until January 1, 2019. This
bill was held in the Assembly Business, Professions and
Consumer Protection Committee.
AB 1904 (Bonilla) of 2014, requires a certified massage
therapist or certified massage practitioner to notify CAMTC of
his or her primary email address, if any, and notify CAMTC
within 30 days of any change to the primary email address.
This bill was held in the Senate Business Professions and
Economic Development Committee.
14)Previous legislation . AB 619 (Halderman) Chapter 162,
Statutes of 2011, changed the name of the MTO to the CAMTC and
makes a number of clarifying, conforming and technical changes
AB 1147
Page 30
to the Massage Therapy Act.
SB 1238 (Price) Chapter 655, Statutes of 2012, made a number
of substantive, clarifying, conforming and technical changes
regarding the approval of school credit hours and examination
and training requirements for purposes of certification; the
grounds for suspension, denial or revocation of certification
of the certificate holder; the sharing of information between
local law enforcement and the CAMTC; the responsibility of
owner/operators of massage businesses for conduct of employees
or their independent contractors and background checks of
owner/operators; and the ability of cities to restrict the
operation of massage businesses involved in prior criminal
activity.
SB 285 (Correa) Chapter 149, Statutes of 2011, provided that
any person who provides a certificate, diploma or other
document, or otherwise affirms that a person has received
instruction in massage therapy, knowing that the person has
not received such training, is guilty of a misdemeanor,
punishable by a fine of $2,500, or imprisonment in county jail
for up to one year, or both.
AB 1822 (Swanson) of 2010, would have added two additional
members to the MTO's Board, each one selected by the
California Police Chiefs Association and the California State
Sheriffs' Association, respectively, unless those entities
chose not to do so. AB 1822 was vetoed by the Governor.
SB 731 (Oropeza) Chapter 384, Statutes of 2008, created a MTO
and provided for the voluntary certification of massage
therapists and massage practitioners by the MTO.
SB 412 (Figueroa) of 2005 would have established the MTO and
would have provided for the certification of massage therapist
and massage practitioners by the MTO. SB 412 was held on the
Assembly floor.
REGISTERED SUPPORT / OPPOSITION :
Support
American Massage Therapy Association, California Chapter
American Planning Association, California Chapter
Association of Orange County Deputy Sheriffs
AB 1147
Page 31
California Massage Therapy Council
California Police Chiefs Association
California State Association of Counties
California State Sheriffs' Association
City of Arcadia
City of Beaumont
City of Burbank
City of Camarillo
City of Corona
City of Del Mar
City of Encinitas
City of Fontana
City of Glendale
City of Livermore
City of Lodi
City of Lomita
City of Los Alamitos
City of Merced
City of Modesto
City of Ontario
City of Pleasanton
City of Sacramento
City of San Buenaventura
City of San Carlos
City of San Francisco
City of San Gabriel
City of San Jose
City of San Leandro
City of South El Monte
City of South Pasadena
City of Thousand Oaks
City of Torrance
City of Vista
County of Sacramento
Fontana Police Department
League of California Cities
Los Angeles County Sheriff's Department
Mayor Edwin Lee, City and County of San Francisco
Town of Danville
Urban Counties Caucus
Massage California (support if amended)
Southern California University (support if amended)
Individuals
Opposition
AB 1147
Page 32
Individuals
Analysis Prepared by : Elissa Silva / B.,P. & C.P. / (916)
319-3301