Amended in Senate August 1, 2016

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, 4607, 4610, and 4621 of, and to amend and repeal Section 4620 of, the Business and Professions Code, and to amend Section 51034 of the Government Code, relating to massage.

LEGISLATIVE COUNSEL’S DIGEST

AB 2194, as amended, Salas. California Massage Therapy Council: business of massage.

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. 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. 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. 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.

This bill would extend the operation of these provisions to January 1, 2020, and make nonsubstantive changes to delete obsolete provisions related to the interim board. 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. 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. The bill would instead require that report to be submitted by January 1, 2017.

Existing law authorizes the legislative body of a city orbegin insert aend insert county forbegin delete incorporatedend deletebegin insert unincorporatedend insert 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.

This bill wouldbegin delete specify that internal physical structures includes showersend deletebegin insert prohibit a city, county, or city and county from requiring a massage establishment to have a shower or bathend insert 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.

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.

P4    1(3) One member shall be a representative of the California State
2Association of Counties, unless that entity chooses not to exercise
3this right to appoint.

4(4) One member shall be a representative of an “anti-human
5trafficking” organization to be determined by the council. This
6organization shall appoint one member, unless the organization
7chooses not to exercise this right to appoint.

8(5) One member shall be appointed by the Office of the
9Chancellor of the California Community Colleges, unless that
10office chooses not to exercise this right to appoint.

11(6) One member shall be a member of the public appointed by
12the Director of the Department of Consumer Affairs, unless the
13director chooses not to exercise this right to appoint.

14(7) One member shall be appointed by the California Association
15of Private Postsecondary Schools, unless that entity chooses not
16to exercise this right to appoint.

17(8) One member shall be appointed by the American Massage
18Therapy Association, California Chapter, who shall be a
19California-certified massage therapist or massage practitioner who
20is a California resident and who has been practicing massage for
21at least three years, unless that entity chooses not to exercise this
22right to appoint.

23(9) One member shall be a public health official representing a
24city, county, city and county, or state health department, to be
25determined by the council. The city, county, city and county, or
26state health department chosen, shall appoint one member unless
27that entity chooses not to exercise this right to appoint.

28(10) (A) One member shall be a certified massage therapist or
29a certified massage practitioner who is a California resident who
30has practiced massage for at least three years prior to the
31appointment, selected by a professional society, association, or
32other entity which membership is comprised of massage therapist
33professionals, and that chooses to participate in the council. To
34qualify, a professional society, association, or other entity shall
35have a dues-paying membership in California of at least 1,000
36individuals, have been established since 2000, and shall have
37bylaws that require its members to comply with a code of ethics.

38(B) If there is more than one professional society, association,
39or other entity that meets the requirements of subparagraph (A),
40the appointment shall rotate based on a four-year term between
P5    1each of the qualifying entities. The qualifying entity shall maintain
2its appointment authority during the entirety of the four-year term
3during which it holds the appointment authority. The order in
4which a qualifying professional society, association, or other entity
5has the authority to appoint shall be determined by alphabetical
6order based on the full legal name of the entity as of January 1,
72014.

8(11) The members appointed to the board in accordance with
9paragraphs (1) to (10), inclusive, shall appoint three additional
10members, at a duly held board meeting in accordance with the
11 board’s bylaws. One of those appointees shall be an attorney
12licensed by the State Bar of California, who has been practicing
13law for at least three years and who at the time of appointment
14represents a city in the state. One of those appointees shall represent
15a massage business entity that has been operating in the state for
16at least three years. The council shall establish in its bylaws a
17process for appointing an additional member, provided that the
18member has knowledge of the massage industry or can bring
19needed expertise to the operation of the council for purposes of
20complying with Section 4603.

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

22(h) The board of directors shall establish fees reasonably related
23to the cost of providing services and carrying out its ongoing
24responsibilities and duties. Initial and renewal fees for certificates
25shall be in an amount sufficient to support the functions of the
26council in the administration of this chapter, but in no event shall
27exceed three hundred dollars ($300). The renewal fee shall be
28reassessed biennially by the board.

29(i) The meetings of the council shall be subject to the rules of
30the Bagley-Keene Open Meeting Act (Article 9 (commencing with
31Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
32the Government Code). The board may adopt additional policies
33and procedures that provide greater transparency to certificate
34holders and the public than required by the Bagley-Keene Open
35Meeting Act.

36(j) Prior to holding a meeting to vote upon a proposal to increase
37the certification fees, the board shall provide at least 90 days’
38notice of the meeting, including posting a notice on the council’s
39Internet Web site unless at least two-thirds of the board members
40concur that there is an active threat to public safety and that voting
P6    1at a meeting without prior notice is necessary. However, the board
2shall not waive the requirements of subdivision (i).

3(k) If the board approves an increase in the certification fees,
4the council shall update all relevant areas of its Internet Web site
5and notify all certificate holders and affected applicants by email
6within 14 days of the board’s action.

7

SEC. 2.  

Section 4604 of the Business and Professions Code is
8amended to read:

9

4604.  

(a) In order to obtain certification as a massage therapist,
10an applicant shall submit a written application and provide the
11council with satisfactory evidence that he or she meets all of the
12following requirements:

13(1) The applicant is 18 years of age or older.

14(2) The applicant has successfully completed the curricula in
15massage and related subjects totaling a minimum of 500 hours, or
16the credit unit equivalent, that incorporates appropriate school
17assessment of student knowledge and skills.

18(A) Of the 500 hours, a minimum of 100 hours of instruction
19shall address anatomy and physiology, contraindications, health
20and hygiene, and business and ethics.

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

22(3) The applicant has passed a massage and bodywork
23competency assessment examination that meets generally
24recognized psychometric principles and standards and that is
25approved by the council. The successful completion of this
26examination may have been accomplished before the date the
27council is authorized by this chapter to begin issuing certificates.

28(4) The applicant has successfully passed a background
29investigation pursuant to Section 4606, and has not violated any
30of the provisions of this chapter.

31(5) All fees required by the council have been paid.

32(6) The council may issue a certificate to an applicant who meets
33the qualifications of this chapter if he or she holds a current and
34valid registration, certification, or license from any other state
35whose licensure requirements meet or exceed those defined within
36this chapter. If an applicant has received education at a school that
37is not approved by the council, the council shall have the discretion
38to give credit for comparable academic work completed by an
39applicant in a program outside of California.

P7    1(b) A certificate issued pursuant to this chapter and any
2identification card issued by the council shall be surrendered to
3the council by any certificate holder whose certificate is suspended
4or revoked.

5

SEC. 3.  

Section 4607 of the Business and Professions Code is
6amended to read:

7

4607.  

The council may discipline an owner or operator of a
8massage business or establishment who is certified pursuant to
9this chapter or is an applicant for certification pursuant to this
10chapter for the conduct of all individuals providing massage for
11compensation on the business premises.

12

SEC. 4.  

Section 4610 of the Business and Professions Code is
13amended to read:

14

4610.  

(a) An applicant for a certificate shall not be denied a
15certificate, and a certificate holder shall not be disciplined pursuant
16to this chapter except according to procedures that satisfy the
17requirements of this section. Denial or discipline that is not in
18accord with this section shall be void and without effect.

19(b) The council may discipline a certificate holder by any, or a
20combination, of the following methods:

21(1) Placing the certificate holder on probation, which may
22include limitations or conditions on practice.

23(2) Suspending the certificate and the rights conferred by this
24chapter on a certificate holder for a period not to exceed one year.

25(3) Suspending or staying the disciplinary order, or portions of
26it, with or without conditions.

27(4) Revoking the certificate.

28(5) Taking other action as the council deems proper, as
29authorized by this chapter or policies, procedures, rules, or bylaws
30adopted by the board.

31(c) The council may issue an initial certificate on probation,
32with specific terms and conditions, to any applicant.

33(d) Any denial or discipline shall be decided upon and imposed
34in good faith and in a fair and reasonable manner. Any procedure
35that conforms to the requirements of subdivision (f) is fair and
36reasonable, but a court may also find other procedures to be fair
37and reasonable when the full circumstances of the denial or
38discipline are considered.

P8    1(e) A procedure is fair and reasonable if the procedures specified
2in subdivision (f) or (g) are followed or if all of the following
3apply:

4(1) Denial or discipline shall be based on a preponderance of
5the evidence. In determining the basis for the denial or discipline,
6the council may consider all written documents or statements as
7evidence, but shall weigh the reliability of those documents or
8statements.

9(2) The provisions of the procedure are publicly available on
10the council’s Internet Web site.

11(3) The council provides 15 calendar days prior notice of the
12denial or discipline and the reasons for the denial or discipline.

13(4) The council provides an opportunity for the applicant or
14certificate holder, to be heard, orally or in writing, not less than
15five days before the effective date of the denial or discipline, by
16a person or body authorized to decide whether the proposed denial
17or discipline should go into effect.

18(f)  (1) Notwithstanding any other law, if the council receives
19notice that a certificate holder has been arrested and charges have
20been filed by the appropriate prosecuting agency against the
21certificate holder alleging a violation of subdivision (b) of Section
22647 of the Penal Code or any other offense described in paragraph
23(11) of subdivision (a) of Section 4609, the council shall
24immediately suspend, on an interim basis, the certificate of that
25certificate holder, and take all of the following additional actions:

26(A) Notify the certificate holder at the address last filed with
27the council that the certificate has been suspended and the reason
28for the suspension within 10 business days.

29(B) Provide notification of the suspension by email to the clerk
30or other designated contact of the city, county, or city and county
31in which the certificate holder lives or works, pursuant to the
32council’s records, within 10 business days.

33(C) Provide notification of the suspension by email or first-class
34mail to any establishment or employer, whether public or private,
35that the council has in its records as employing the certificate
36holder, within 10 business days.

37(2) Upon notice to the council that the charges described in
38paragraph (1) have resulted in a conviction, the council shall
39permanently revoke the suspended certificate. The council shall
40provide notice to the certificate holder, at the address last filed
P9    1with the council by a method providing delivery confirmation,
2within 10 business days that it has evidence of a valid record of
3conviction and that the certificate will be revoked unless the
4certificate holder provides evidence within 15 days from the date
5of the council’s mailing of the notice that the conviction is either
6invalid or that the information is otherwise erroneous.

7(3) Upon notice that the charges described in paragraph (1) have
8resulted in an acquittal or have been otherwise dismissed prior to
9conviction, the certificate shall be immediately reinstated and the
10certificate holder and any establishment or employer that received
11notice pursuant to this section shall be notified of the reinstatement
12within 10 business days.

13(g)  (1) Notwithstanding any other law, if the council determines
14that a certificate holder has committed an act punishable as a
15sexually related crime or a felony that is substantially related to
16the qualifications, functions, or duties of a certificate holder, the
17council may immediately suspend the certificate of that certificate
18holder. A determination to immediately suspend a certificate
19pursuant to this subdivision shall be based upon a preponderance
20of the evidence and the council shall also consider any available
21credible mitigating evidence before making a decision. Written
22statements by any person shall not be considered by the council
23when determining whether to immediately suspend a certificate
24unless made under penalty of perjury. If the council suspends a
25certificate in accordance with this subdivision, the council shall
26take all of the following additional actions:

27(A) Notify the certificate holder within 10 business days, at the
28address last filed with the council, by a method providing delivery
29confirmation, that the certificate has been suspended, the reason
30for the suspension, and that the certificate holder has the right to
31request a hearing pursuant to paragraph (2).

32(B) Notify by email or any other means consistent with the
33notice requirements of this chapter, any business or employer,
34whether public or private, that the council has in its records as
35employing or contracting with the certificate holder for massage
36services, and the California city, county, or city and county that
37has jurisdiction over that establishment or employer, that the
38certificate has been suspended within 10 business days.

39(2) A certificate holder whose certificate is suspended pursuant
40to this subdivision shall have the right to request, in writing, an
P10   1oral hearing or consideration of a written statement to challenge
2the factual basis for the suspension. If the holder of the suspended
3certificate requests an oral hearing or consideration of a written
4statement on the suspension, the oral hearing or consideration of
5a written statement shall be held within 30 calendar days after
6receipt of the request. A holder whose certificate is suspended
7based on paragraph (1) shall be subject to revocation or other
8discipline in accordance with subdivision (a).

9(3) If the council determines, after a hearing conducted pursuant
10to this subdivision, to lift the suspension, the certificate shall be
11immediately reinstated and the certificate holder, any establishment
12or employer, and the city, county, or city and county that has
13jurisdiction over that establishment or employer, that received
14notice pursuant to this section shall be notified of the reinstatement
15within 10 business days.

16(h) Any notice required under this section may be given by any
17method reasonably calculated to provide actual notice. Any notice
18given by mail shall be given by first-class or certified mail sent to
19the last address of the applicant or certificate holder shown on the
20council’s records.

21(i) An applicant or certificate holder may challenge a denial or
22discipline decision issued pursuant to this section in a court of
23competent jurisdiction. Any action challenging a denial or
24discipline, including any claim alleging defective notice, shall be
25commenced within one year after the effective date of the denial
26or discipline. If the action is successful, the court may order any
27relief, including reinstatement, that it finds equitable under the
28circumstances.

29(j) This section governs only the procedures for denial or
30discipline decision and not the substantive grounds for the denial
31or discipline. Denial or discipline based upon substantive grounds
32that violates contractual or other rights of the applicant or certificate
33holder, or is otherwise unlawful, is not made valid by compliance
34with this section.

35

SEC. 5.  

Section 4620 of the Business and Professions Code is
36amended to read:

37

4620.  

(a) On or before January 1, 2017, for the time period
38beginning on January 1, 2015, the council shall provide a report
39to the appropriate policy committees of the Legislature that
40includes all of the following:

P11   1(1) A feasibility study of licensure for the massage profession,
2including a proposed scope of practice, legitimate techniques of
3massage, and related statutory recommendations.

4(2) The council’s compensation guidelines and current salary
5levels.

6(3) The status of the council’s progress towards revising the
7school approval process.

8(4) Performance metrics, including, but not limited to:

9(A) The annual number of denied certificate applications, and
10a brief description of the grounds for each decision.

11(B) The annual number of suspended, revoked, or otherwise
12disciplined certificates, and a brief description of the grounds for
13each decision.

14(C) The number of certificates taken off suspension, and a brief
15description of the grounds for each decision.

16(D) The number of schools inspected and unapproved and a
17brief description of the grounds for each decision to unapprove.

18(E) The total number of complaints about certificate holders
19received annually, including a subtotal of complaints received
20from local law enforcement and the action taken by the council as
21a result of those complaints.

22(b) The council shall testify in person if requested by the
23appropriate policy committees of the Legislature.

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

25

SEC. 6.  

Section 4621 of the Business and Professions Code is
26amended to read:

27

4621.  

(a) This chapter shall remain in effect only until January
281, 2020, and as of that date is repealed, unless a later enacted
29statute, that is enacted before January 1, 2020, deletes or extends
30that date.

31(b) Notwithstanding any other law, the powers and duties of the
32council shall be subject to review by the appropriate policy
33committees of the Legislature.

34

SEC. 7.  

Section 51034 of the Government Code is amended
35to read:

36

51034.  

(a) The Legislature in enacting this chapter recognizes
37the existing power of a city or county to regulate a lawful massage
38business pursuant to Section 37101, or pursuant to Section 16000
39or 16100 of the Business and Professions Code, or under Section
407 of Article XI of the California Constitution.

P12   1(b) Nothing contained in this chapter shall be a limitation on
2that existing power or on the existing authority of a city to license
3for revenue purposes. A city, county, or city and county shall not
4enact or enforce an ordinance that conflicts with the provisions of
5this section or Chapter 10.5 (commencing with Section 4600) of
6Division 2 of the Business and Professions Code.

7(c) Nothing contained in this chapter shall authorize a city,
8county, or city and county to do any of the following:

9(1) Prohibit a person of one sex from engaging in the massage
10of a person of the other sex.

11(2) Define a massage establishment as an adult entertainment
12business, or otherwise regulate a massage establishment as adult
13entertainment.

14(3) Require a massage establishment to have windows or walls
15that do not extend from the floor to ceiling, or have other internal
16physical structures, includingbegin delete windows or showers,end deletebegin insert windows,end insert that
17interfere with a client’s reasonable expectation of privacy.

begin insert

18
(4) Require a massage establishment to have a shower or bath.

end insert
begin delete

19(4)

end delete

20begin insert(5)end insert Impose client draping requirements that extend beyond the
21covering of genitalia and female breasts, or otherwise mandate
22that the client wear special clothing.

begin delete

23(5)

end delete

24begin insert(6)end insert Prohibit a massage establishment from locking its external
25doors if the massage establishment is a business entity owned by
26one individual with one or no employees or independent
27contractors.

begin delete

28(6)

end delete

29begin insert(7)end insert Require a massage establishment to post any notice in an
30area that may be viewed by clients that contains explicit language
31describing sexual acts, mentions genitalia, or specific contraception
32devices.

begin delete

33(7)

end delete

34begin insert(8)end insert Impose a requirement that a person certified pursuant to
35Chapter 10.5 (commencing with Section 4600) of Division 2 of
36the Business and Professions Code take any test, medical
37examination, or background check, including, but not limited to,
38a criminal background check or requiring submission of
39fingerprints for a federal or state criminal background check, or
40comply with education requirements beyond what is required by
P13   1Chapter 10.5 (commencing with Section 4600) of Division 2 of
2the Business and Professions Code.

begin delete

3(8)

end delete

4begin insert(9)end insert Impose a requirement that an individual holding a certificate
5issued in accordance with Chapter 10.5 (commencing with Section
64600) of Division 2 of the Business and Professions Code, obtain
7any other license, permit, certificate, or other authorization to
8provide massage for compensation. However, this paragraph shall
9not be construed to prohibit a city, county, or city and county from
10requiring by ordinance that a massage business or establishment
11obtain a license, permit, certificate, or other authorization in order
12to operate lawfully within the jurisdiction.

begin delete

13(9)

end delete

14begin insert(10)end insert Impose a dress code requirement on a person certified
15pursuant to Chapter 10.5 (commencing with Section 4600) of
16Division 2 of the Business and Professions Code in excess of those
17already imposed pursuant to paragraph (10) of subdivision (a) of
18Section 4609 of the Business and Professions Code.

begin delete

19(10)

end delete

20begin insert(11)end insert Prohibit a person certified pursuant to Chapter 10.5
21(commencing with Section 4600) of Division 2 of the Business
22and Professions Code from performing massage for compensation
23on the gluteal muscles, prohibit specific massage techniques
24recognized by the California Massage Therapy Council as
25legitimate, or impose any other specific restriction on professional
26practice beyond those set forth in subparagraph (E) of paragraph
27(1) of subdivision (a) of Section 4609 of the Business and
28Professions Code, except as authorized by Section 460 of the
29Business and Professions Code.



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