Amended in Senate June 20, 2016

Amended in Assembly April 19, 2016

Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2194


Introduced by Assembly Member Salas

(Principal coauthor: Senator Hill)

February 18, 2016


An act to amend Sections 4602, 4604,begin insert 4607,end insert 4610, and 4621begin delete ofend deletebegin insert of, and to amend and repeal Section 4620 of,end insert the Business and Professions Code, begin insertand to amend Section 51034 of the Government Code,end insert relating tobegin delete massage therapy.end deletebegin insert massage.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2194, as amended, Salas. California Massage Therapy Council: begin deleteextension of sunset date. end deletebegin insertbusiness of massage.end insert

The Massage Therapy Act, until January 1, 2017, provides for certification of massage practitioners and massage therapists by the California Massage Therapy Council. Existing law also provides for the council to be governed by an interim board of directors until September 15, 2015, and for the appointment of a new board of directors having 4-year terms.begin insert Existing law authorizes the council to discipline an owner or operator of a massage business or establishment who is certified for the conduct of all individuals providing massage for compensation on the business premises.end insert That act requires the council to immediately suspend, on an interim basis, the certificate of a certificate holder if the council receives notice that a certificate holder has been arrested and charges have been filed alleging a violation of certain provisions of law and requires the council to notify an establishment or employer of the suspension by email within 10 business days. That act authorizes the council, if it determines that a certificate holder has committed an act punishable as a sexually related crime, to immediately suspend the certificate of that certificate holder, and provides that the certificate holder has the right to request a hearing to challenge the suspension.begin insert By June 1, 2016, existing law requires the council to provide a report to the appropriate policy committees of the Legislature that includes specified information.end insert

This bill would extend the operation of these provisionsbegin delete untilend deletebegin insert toend insert January 1, begin delete2019,end deletebegin insert 2020,end insert and make nonsubstantive changes to delete obsolete provisions related to the interim board.begin insert The bill would also authorize the council to discipline an owner or operator of a massage business or establishment under those circumstances if the owner or operator is an applicant for certification.end insert The bill would additionally authorize the council to notify an establishment or employer of the suspension of a certificate by first-class mail, and would authorize a certificate holder whose certificate is suspended to request an oral hearing or consideration of a written statement to challenge the suspension.begin insert The bill would instead require that report to be submitted by January 1, 2017.end insert

begin insert

Existing law authorizes the legislative body of a city or county for incorporated areas to enact an ordinance providing for the licensing for regulation of the business of massage when carried on within the city or county. Existing law authorizes that ordinance to condition the issuance of a license to engage in the business of massage upon proof that a massage business meets specified reasonable standards set by the ordinance. Existing law prohibits a city, county, or city and county from requiring a massage establishment to have specified internal physical structures, including windows, and requiring a person certified under the Massage Therapy Act to undergo a background check beyond what is required by the Massage Therapy Act.

end insert
begin insert

This bill would specify that internal physical structures includes showers and would also specify that a background check includes a criminal background check or requiring submission of fingerprints for a federal or state criminal background check.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 4602 of the Business and Professions
2Code
is amended to read:

3

4602.  

(a) The California Massage Therapy Council, as defined
4in subdivision (d) of Section 4601, is hereby established and shall
5carry out the responsibilities and duties set forth in this chapter.

6(b) The council may take any reasonable actions necessary to
7carry out the responsibilities and duties set forth in this chapter,
8including, but not limited to, hiring staff, entering into contracts,
9and developing policies, procedures, rules, and bylaws to
10implement this chapter.

11(c) The council may require background checks for all
12employees, contractors, volunteers, and board members as a
13condition of their employment, formation of a contractual
14relationship, or participation in council activities.

15(d) The council shall issue a certificate to an individual applicant
16who satisfies the requirements of this chapter for that certificate.

17(e) The council is authorized to determine whether the
18information provided to the council in relation to the certification
19of an applicant is true and correct and meets the requirements of
20this chapter. If the council has any reason to question whether the
21information provided is true or correct, or meets the requirements
22of this chapter, the council is authorized to make any investigation
23it deems necessary to establish that the information received is
24accurate and satisfies any criteria established by this chapter. The
25applicant has the burden to prove that he or she is entitled to
26certification.

27(f) The council shall be governed by a board of directors
28comprised of 13 members who shall be chosen in the following
29manner:

30(1) One member shall be a representative of the League of
31California Cities, unless that entity chooses not to exercise this
32right to appoint.

33(2) One member shall be a representative of the California Police
34Chiefs Association, unless that entity chooses not to exercise this
35right to appoint.

36(3) One member shall be a representative of the California State
37Association of Counties, unless that entity chooses not to exercise
38this right to appoint.

P4    1(4) One member shall be a representative of an “anti-human
2trafficking” organization to be determined by the council. This
3organization shall appoint one member, unless the organization
4chooses not to exercise this right to appoint.

5(5) One member shall be appointed by the Office of the
6Chancellor of the California Community Colleges, unless that
7office chooses not to exercise this right to appoint.

8(6) One member shall be a member of the public appointed by
9the Director of the Department of Consumer Affairs, unless the
10director chooses not to exercise this right to appoint.

11(7) One member shall be appointed by the California Association
12of Private Postsecondary Schools, unless that entity chooses not
13to exercise this right to appoint.

14(8) One member shall be appointed by the American Massage
15Therapy Association, California Chapter, who shall be a
16California-certified massage therapist or massage practitioner who
17is a California resident and who has been practicing massage for
18at least three years, unless that entity chooses not to exercise this
19right to appoint.

20(9) One member shall be a public health official representing a
21city, county, city and county, or state health department, to be
22determined by the council. The city, county, city and county, or
23state health department chosen, shall appoint one member unless
24that entity chooses not to exercise this right to appoint.

25(10) (A) One member shall be a certified massage therapist or
26a certified massage practitioner who is a California resident who
27has practiced massage for at least three years prior to the
28appointment, selected by a professional society, association, or
29other entity which membership is comprised of massage therapist
30professionals, and that chooses to participate in the council. To
31qualify, a professional society, association, or other entity shall
32have a dues-paying membership in California of at least 1,000
33individuals, have been established since 2000, and shall have
34bylaws that require its members to comply with a code of ethics.

35(B) If there is more than one professional society, association,
36or other entity that meets the requirements of subparagraph (A),
37the appointment shall rotate based on a four-year term between
38each of the qualifying entities. The qualifying entity shall maintain
39its appointment authority during the entirety of the four-year term
40during which it holds the appointment authority. The order in
P5    1which a qualifying professional society, association, or other entity
2has the authority to appoint shall be determined by alphabetical
3order based on the full legal name of the entity as of January 1,
42014.

5(11) The members appointed to the board in accordance with
6paragraphs (1) to (10), inclusive, shall appoint three additional
7members, at a duly held board meeting in accordance with the
8 board’s bylaws. One of those appointees shall be an attorney
9licensed by the State Bar of California, who has been practicing
10law for at least three years and who at the time of appointment
11represents a city in the state. One of those appointees shall represent
12a massage business entity that has been operating in the state for
13at least three years. The council shall establish in its bylaws a
14process for appointing an additional member, provided that the
15member has knowledge of the massage industry or can bring
16needed expertise to the operation of the council for purposes of
17complying with Section 4603.

18(g) Board member terms shall be for four years.

19(h) The board of directors shall establish fees reasonably related
20to the cost of providing services and carrying out its ongoing
21responsibilities and duties. Initial and renewal fees for certificates
22shall be in an amount sufficient to support the functions of the
23council in the administration of this chapter, but in no event shall
24exceed three hundred dollars ($300). The renewal fee shall be
25reassessed biennially by the board.

26(i) The meetings of the council shall be subject to the rules of
27the Bagley-Keene Open Meeting Act (Article 9 (commencing with
28Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
29the Government Code). The board may adopt additional policies
30and procedures that provide greater transparency to certificate
31holders and the public than required by the Bagley-Keene Open
32Meeting Act.

33(j) Prior to holding a meeting to vote upon a proposal to increase
34the certification fees, the board shall provide at least 90 days’
35notice of the meeting, including posting a notice on the council’s
36Internet Web site unless at least two-thirds of the board members
37concur that there is an active threat to public safety and that voting
38at a meeting without prior notice is necessary. However, the board
39shall not waive the requirements of subdivision (i).

P6    1(k) If the board approves an increase in the certification fees,
2the council shall update all relevant areas of its Internet Web site
3and notify all certificate holders and affected applicants by email
4within 14 days of the board’s action.

5

SEC. 2.  

Section 4604 of the Business and Professions Code is
6amended to read:

7

4604.  

(a) In order to obtain certification as a massage therapist,
8an applicant shall submit a written application and provide the
9council with satisfactory evidence that he or she meets all of the
10following requirements:

11(1) The applicant is 18 years of age or older.

12(2) The applicant has successfully completed the curricula in
13massage and related subjects totaling a minimum of 500 hours, or
14the credit unit equivalent, that incorporates appropriate school
15assessment of student knowledge and skills.

16(A) Of the 500 hours, a minimum of 100 hours of instruction
17shall address anatomy and physiology, contraindications, health
18and hygiene, and business and ethics.

19(B) All of the 500 hours shall be from approved schools.

20(3) The applicant has passed a massage and bodywork
21competency assessment examination that meets generally
22recognized psychometric principles and standards and that is
23approved by the council. The successful completion of this
24examination may have been accomplished before the date the
25council is authorized by this chapter to begin issuing certificates.

26(4) The applicant has successfully passed a background
27investigation pursuant to Section 4606, and has not violated any
28of the provisions of this chapter.

29(5) All fees required by the council have been paid.

30(6) The council may issue a certificate to an applicant who meets
31the qualifications of this chapter if he or she holds a current and
32valid registration, certification, or license from any other state
33whose licensure requirements meet or exceed those defined within
34this chapter. If an applicant has received education at a school that
35is not approved by the council, the council shall have the discretion
36to give credit for comparable academic work completed by an
37applicant in a program outside of California.

38(b) A certificate issued pursuant to this chapter and any
39identification card issued by the council shall be surrendered to
P7    1the council by any certificate holder whose certificate is suspended
2or revoked.

3begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 4607 of the end insertbegin insertBusiness and Professions Codeend insertbegin insert is
4amended to read:end insert

5

4607.  

The council may discipline an owner or operator of a
6massage business or establishment who is certified pursuant to
7this chapterbegin insert or is an applicant for certification pursuant to this
8chapterend insert
for the conduct of all individuals providing massage for
9compensation on the business premises.

10

begin deleteSEC. 3.end delete
11
begin insertSEC. 4.end insert  

Section 4610 of the Business and Professions Code is
12amended to read:

13

4610.  

(a) An applicant for a certificate shall not be denied a
14certificate, and a certificate holder shall not be disciplined pursuant
15to this chapter except according to procedures that satisfy the
16requirements of this section. Denial or discipline that is not in
17accord with this section shall be void and without effect.

18(b) The council may discipline a certificate holder by any, or a
19combination, of the following methods:

20(1) Placing the certificate holder on probation, which may
21include limitations or conditions on practice.

22(2) Suspending the certificate and the rights conferred by this
23chapter on a certificate holder for a period not to exceed one year.

24(3) Suspending or staying the disciplinary order, or portions of
25it, with or without conditions.

26(4) Revoking the certificate.

27(5) Taking other action as the council deems proper, as
28authorized by this chapter or policies, procedures, rules, or bylaws
29adopted by the board.

30(c) The council may issue an initial certificate on probation,
31with specific terms and conditions, to any applicant.

32(d) Any denial or discipline shall be decided upon and imposed
33in good faith and in a fair and reasonable manner. Any procedure
34that conforms to the requirements of subdivision (f) is fair and
35reasonable, but a court may also find other procedures to be fair
36and reasonable when the full circumstances of the denial or
37discipline are considered.

38(e) A procedure is fair and reasonable if the procedures specified
39in subdivision (f) or (g) are followed or if all of the following
40apply:

P8    1(1) Denial or discipline shall be based on a preponderance of
2the evidence. In determining the basis for the denial or discipline,
3the council may consider all written documents or statements as
4evidence, but shall weigh the reliability of those documents or
5statements.

6(2) The provisions of the procedure are publicly available on
7the council’s Internet Web site.

8(3) The council provides 15 calendar days prior notice of the
9denial or discipline and the reasons for the denial or discipline.

10(4) The council provides an opportunity for the applicant or
11certificate holder, to be heard, orally or in writing, not less than
12five days before the effective date of the denial or discipline, by
13a person or body authorized to decide whether the proposed denial
14or discipline should go into effect.

15(f)  (1) Notwithstanding any other law, if the council receives
16notice that a certificate holder has been arrested and charges have
17been filed by the appropriate prosecuting agency against the
18certificate holder alleging a violation of subdivision (b) of Section
19647 of the Penal Code or any other offense described in paragraph
20(11) of subdivision (a) of Section 4609, the council shall
21immediately suspend, on an interim basis, the certificate of that
22certificate holder, and take all of the following additional actions:

23(A) Notify the certificate holder at the address last filed with
24the council that the certificate has been suspended and the reason
25for the suspension within 10 business days.

26(B) Provide notification of the suspension by email to the clerk
27or other designated contact of the city, county, or city and county
28in which the certificate holder lives or works, pursuant to the
29council’s records, within 10 business days.

30(C) Provide notification of the suspension by email or first-class
31mail to any establishment or employer, whether public or private,
32that the council has in its records as employing the certificate
33holder, within 10 business days.

34(2) Upon notice to the council that the charges described in
35paragraph (1) have resulted in a conviction, the council shall
36permanently revoke the suspended certificate. The council shall
37provide notice to the certificate holder, at the address last filed
38with the council by a method providing delivery confirmation,
39within 10 business days that it has evidence of a valid record of
40conviction and that the certificate will be revoked unless the
P9    1certificate holder provides evidence within 15 days from the date
2of the council’s mailing of the notice that the conviction is either
3invalid or that the information is otherwise erroneous.

4(3) Upon notice that the charges described in paragraph (1) have
5resulted in an acquittal or have been otherwise dismissed prior to
6conviction, the certificate shall be immediately reinstated and the
7certificate holder and any establishment or employer that received
8notice pursuant to this section shall be notified of the reinstatement
9within 10 business days.

10(g)  (1) Notwithstanding any other law, if the council determines
11that a certificate holder has committed an act punishable as a
12sexually related crime or a felony that is substantially related to
13the qualifications, functions, or duties of a certificate holder, the
14council may immediately suspend the certificate of that certificate
15holder. A determination to immediately suspend a certificate
16pursuant to this subdivision shall be based upon a preponderance
17of the evidence and the council shall also consider any available
18credible mitigating evidence before making a decision. Written
19statements by any person shall not be considered by the council
20when determining whether to immediately suspend a certificate
21unless made under penalty of perjury. If the council suspends a
22certificate in accordance with this subdivision, the council shall
23take all of the following additional actions:

24(A) Notify the certificate holder within 10 business days, at the
25address last filed with the council, by a method providing delivery
26confirmation, that the certificate has been suspended, the reason
27for the suspension, and that the certificate holder has the right to
28request a hearing pursuant to paragraph (2).

29(B) Notify by email or any other means consistent with the
30notice requirements of this chapter, any business or employer,
31whether public or private, that the council has in its records as
32employing or contracting with the certificate holder for massage
33services, and the California city, county, or city and county that
34has jurisdiction over that establishment or employer, that the
35certificate has been suspended within 10 business days.

36(2) A certificate holder whose certificate is suspended pursuant
37to this subdivision shall have the right to request, in writing, an
38oral hearing or consideration of a written statement to challenge
39the factual basis for the suspension. If the holder of the suspended
40certificate requests an oral hearing or consideration of a written
P10   1statement on the suspension, the oral hearing or consideration of
2a written statement shall be held within 30 calendar days after
3receipt of the request. A holder whose certificate is suspended
4based on paragraph (1) shall be subject to revocation or other
5discipline in accordance with subdivision (a).

6(3) If the council determines, after a hearing conducted pursuant
7to this subdivision, to lift the suspension, the certificate shall be
8immediately reinstated and the certificate holder, any establishment
9or employer, and the city, county, or city and county that has
10jurisdiction over that establishment or employer, that received
11notice pursuant to this section shall be notified of the reinstatement
12within 10 business days.

13(h) Any notice required under this section may be given by any
14method reasonably calculated to provide actual notice. Any notice
15given by mail shall be given by first-class or certified mail sent to
16the last address of the applicant or certificate holder shown on the
17council’s records.

18(i) An applicant or certificate holder may challenge a denial or
19discipline decision issued pursuant to this section in a court of
20competent jurisdiction. Any action challenging a denial or
21discipline, including any claim alleging defective notice, shall be
22commenced within one year after the effective date of the denial
23or discipline. If the action is successful, the court may order any
24relief, including reinstatement, that it finds equitable under the
25circumstances.

26(j) This section governs only the procedures for denial or
27discipline decision and not the substantive grounds for the denial
28or discipline. Denial or discipline based upon substantive grounds
29that violates contractual or other rights of the applicant or certificate
30holder, or is otherwise unlawful, is not made valid by compliance
31with this section.

32begin insert

begin insertSEC. 5.end insert  

end insert

begin insertSection 4620 of the end insertbegin insertBusiness and Professions Codeend insertbegin insert is
33amended to read:end insert

34

4620.  

(a) On or beforebegin delete June 1, 2016,end deletebegin insert January 1, 2017,end insert for the
35time period beginning on January 1, 2015, the council shall provide
36a report to the appropriate policy committees of the Legislature
37that includes all of the following:

38(1) A feasibility study of licensure for the massage profession,
39including a proposed scope of practice, legitimate techniques of
40massage, and related statutory recommendations.

P11   1(2) The council’s compensation guidelines and current salary
2levels.

3(3) The status of the council’s progress towards revising the
4school approval process.

5(4) Performance metrics, including, but not limited to:

6(A) The annual number of denied certificate applications, and
7a brief description of the grounds for each decision.

8(B) The annual number of suspended, revoked, or otherwise
9disciplined certificates, and a brief description of the grounds for
10each decision.

11(C) The number of certificates taken off suspension, and a brief
12description of the grounds for each decision.

13(D) The number of schools inspected and unapproved and a
14brief description of the grounds for each decision to unapprove.

15(E) The total number of complaints about certificate holders
16received annually, including a subtotal of complaints received
17from local law enforcement and the action taken by the council as
18a result of those complaints.

19(b) The council shall testify in person if requested by the
20appropriate policy committees of the Legislature.

begin insert

21
(c) This section shall be repealed on January 1, 2021.

end insert
22

begin deleteSEC. 4.end delete
23
begin insertSEC. 6.end insert  

Section 4621 of the Business and Professions Code is
24amended to read:

25

4621.  

(a) This chapter shall remain in effect only until January
261,begin delete 2019,end deletebegin insert 2020,end insert and as of that date is repealed, unless a later enacted
27statute, that is enacted before January 1,begin delete 2019,end deletebegin insert 2020,end insert deletes or
28extends that date.

29(b) Notwithstanding any other law, the powers and duties of the
30council shall be subject to review by the appropriate policy
31committees of the Legislature.

32begin insert

begin insertSEC. 7.end insert  

end insert

begin insertSection 51034 of the end insertbegin insertGovernment Codeend insertbegin insert is amended to
33read:end insert

34

51034.  

(a) The Legislature in enacting this chapter recognizes
35the existing power of a city or county to regulate a lawful massage
36business pursuant to Section 37101, or pursuant to Section 16000
37or 16100 of the Business and Professions Code, or under Section
387 of Article XI of the California Constitution.

39(b) Nothing contained in this chapter shall be a limitation on
40that existing power or on the existing authority of a city to license
P12   1for revenue purposes. A city, county, or city and county shall not
2enact or enforce an ordinance that conflicts with the provisions of
3this section or Chapter 10.5 (commencing with Section 4600) of
4Division 2 of the Business and Professions Code.

5(c) Nothing contained in this chapter shall authorize a city,
6county, or city and county to do any of the following:

7(1) Prohibit a person of one sex from engaging in the massage
8of a person of the other sex.

9(2) Define a massage establishment as an adult entertainment
10business, or otherwise regulate a massage establishment as adult
11entertainment.

12(3) Require a massage establishment to have windows or walls
13that do not extend from the floor to ceiling, or have other internal
14physical structures, includingbegin delete windows,end deletebegin insert windows or showers,end insert that
15interfere with a client’s reasonable expectation of privacy.

16(4) Impose client draping requirements that extend beyond the
17covering of genitalia and female breasts, or otherwise mandate
18that the client wear special clothing.

19(5) Prohibit a massage establishment from locking its external
20doors if the massage establishment is a business entity owned by
21one individual with one or no employees or independent
22contractors.

23(6) Require a massage establishment to post any notice in an
24area that may be viewed by clients that contains explicit language
25describing sexual acts, mentions genitalia, or specific contraception
26devices.

27(7) Impose a requirement that a person certified pursuant to
28Chapter 10.5 (commencing with Section 4600) of Division 2 of
29the Business and Professions Code take any test, medical
30examination, or backgroundbegin delete checkend deletebegin insert check, including, but not limited
31to, a criminal background check or requiring submission of
32fingerprints for a federal or state criminal background check,end insert
or
33comply with education requirements beyond what is required by
34Chapter 10.5 (commencing with Section 4600) of Division 2 of
35the Business and Professions Code.

36(8) Impose a requirement that an individual holding a certificate
37issued in accordance with Chapter 10.5 (commencing with Section
384600) of Division 2 of the Business and Professions Code, obtain
39any other license, permit, certificate, or other authorization to
40provide massage for compensation. However, this paragraph shall
P13   1not be construed to prohibit a city, county, or city and county from
2requiring by ordinance that a massage business or establishment
3obtain a license, permit, certificate, or other authorization in order
4to operate lawfully within the jurisdiction.

5(9) Impose a dress code requirement on a person certified
6pursuant to Chapter 10.5 (commencing with Section 4600) of
7Division 2 of the Business and Professions Code in excess of those
8already imposed pursuant to paragraph (10) of subdivision (a) of
9Section 4609 of the Business and Professions Code.

10(10) Prohibit a person certified pursuant to Chapter 10.5
11(commencing with Section 4600) of Division 2 of the Business
12and Professions Code from performing massage for compensation
13on the gluteal muscles, prohibit specific massage techniques
14recognized by the California Massage Therapy Council as
15legitimate, or impose any other specific restriction on professional
16practice beyond those set forth in subparagraph (E) of paragraph
17(1) of subdivision (a) of Section 4609 of the Business and
18Professions Code, except as authorized by Section 460 of the
19Business and Professions Code.



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