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, 2021, 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.
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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 or a county for unincorporated 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 would prohibit a city, county, or city and county from requiring a massage establishment to have a shower or bath 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.
Fiscal committee: yes.
State-mandated local program:
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The people of the State of California do enact as follows:
(a) It is the intent of the Legislature that this act enable
4consumers and local governments to more easily identify certified
5massage professionals, provide for consistent statewide certification
6and oversight of massage professionals, ensure that schools
7approved by the council that are teaching massage provide a high
8level of training, assist local governments and law enforcement in
9meeting their duty to maintain the highest standards of conduct in
10massage establishments by vetting and disciplining certificate
11holders, provide for a self-funded nonprofit oversight body to
12certify massage professionals, and ensure full compliance with,
13and execution of, the requirements of this act.
14(b) It is the intent of the Legislature that broad control over land
15use in regulating massage establishments be vested in local
16governments so that they may manage those establishments in the
17best interests of the individual community, and that the
18requirements and practice of the profession of massage therapy
19remain a matter of statewide concern, regulation, and oversight.
24(c) It is the intent of the Legislature that local governments
25impose and enforce only reasonable and necessary fees and
26regulations, in keeping with the requirements of existing law and
27being mindful of the need to protect legitimate business owners
28and massage professionals, particularly sole providers, during the
29transition period after this act becomes law and thereafter for the
30sake of developing a healthy and vibrant local economy.
32 It is the intent of the Legislature that local governments, law
33enforcement, nonprofit stakeholders, the massage industry, and
34massage professionals work together going forward to improve
35communication and share information to further increase the value
36of statewide certification, to collaborate in the implementation of
37this act, and to develop a model ordinance reflecting best practices
38in massage regulation for cities and counties to adopt that will
P5 1respect local control, patient privacy, and the dignity of the
2profession of massage therapy.
Section 4602 of the Business and Professions Code is
5amended to read:
(a) The California Massage Therapy Council, as defined
7in subdivision (d) of Section 4601, is hereby established and shall
8carry out the responsibilities and duties set forth in this chapter.
9(b) The council may take any reasonable actions necessary to
10carry out the responsibilities and duties set forth in this chapter,
11including, but not limited to, hiring staff, entering into contracts,
12and developing policies, procedures, rules, and bylaws to
13implement this chapter.
14(c) The council may require background checks for all
15employees, contractors, volunteers, and board members as a
16condition of their employment, formation of a contractual
17relationship, or participation in council activities.
18(d) The council shall issue a certificate to an individual applicant
19who satisfies the requirements of this chapter for that certificate.
20(e) The council is authorized to determine whether the
21information provided to the council in relation to the certification
22of an applicant is true and correct and meets the requirements of
23this chapter. If the council has any reason to question whether the
24information provided is true or correct, or meets the requirements
25of this chapter, the council is authorized to make any investigation
26it deems necessary to establish that the information received is
27accurate and satisfies any criteria established by this chapter. The
28applicant has the burden to prove that he or she is entitled to
30(f) The council shall be governed by a board of directors
31comprised of 13 members who shall be chosen in the following
33(1) One member shall be a representative of the League of
34California Cities, unless that entity chooses not to exercise this
35right to appoint.
36(2) One member shall be a representative of the California Police
37Chiefs Association, unless that entity chooses not to exercise this
38right to appoint.
P6 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
P7 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,
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
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
P8 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.
Section 4604 of the Business and Professions Code is
17amended to read:
(a) In order to obtain certification as a massage therapist,
19an applicant shall submit a written application and provide the
20council with satisfactory evidence that he or she meets all of the
22(1) The applicant is 18 years of age or older.
23(2) The applicant has successfully completed the curricula in
24massage and related subjects totaling a minimum of 500 hours, or
25the credit unit equivalent, that incorporates appropriate school
26assessment of student knowledge and skills.
27(A) Of the 500 hours, a minimum of 100 hours of instruction
28shall address anatomy and physiology, contraindications, health
29and hygiene, and business and ethics.
30(B) All of the 500 hours shall be from approved schools.
31(3) The applicant has passed a massage and bodywork
32competency assessment examination that meets generally
33recognized psychometric principles and standards and that is
34approved by the council. The successful completion of this
35examination may have been accomplished before the date the
36council is authorized by this chapter to begin issuing certificates.
37(4) The applicant has successfully passed a background
38investigation pursuant to Section 4606, and has not violated any
39of the provisions of this chapter.
40(5) All fees required by the council have been paid.
P9 1(6) The council may issue a certificate to an applicant who meets
2the qualifications of this chapter if he or she holds a current and
3valid registration, certification, or license from any other state
4whose licensure requirements meet or exceed those defined within
5this chapter. If an applicant has received education at a school that
6is not approved by the council, the council shall have the discretion
7to give credit for comparable academic work completed by an
8applicant in a program outside of California.
9(b) A certificate issued pursuant to this chapter and any
10identification card issued by the council shall be surrendered to
11the council by any certificate holder whose certificate is suspended
Section 4607 of the Business and Professions Code is
15amended to read:
The council may discipline an owner or operator of a
17massage business or establishment who is certified pursuant to
18this chapter or is an applicant for certification pursuant to this
19chapter for the conduct of all individuals providing massage for
20compensation on the business premises.
Section 4610 of the Business and Professions Code is
23amended to read:
(a) An applicant for a certificate shall not be denied a
25certificate, and a certificate holder shall not be disciplined pursuant
26to this chapter except according to procedures that satisfy the
27requirements of this section. Denial or discipline that is not in
28accord with this section shall be void and without effect.
29(b) The council may discipline a certificate holder by any, or a
30combination, of the following methods:
31(1) Placing the certificate holder on probation, which may
32include limitations or conditions on practice.
33(2) Suspending the certificate and the rights
conferred by this
34chapter on a certificate holder for a period not to exceed one year.
35(3) Suspending or staying the disciplinary order, or portions of
36it, with or without conditions.
37(4) Revoking the certificate.
38(5) Taking other action as the council deems proper, as
39authorized by this chapter or policies, procedures, rules, or bylaws
40adopted by the board.
P10 1(c) The council may issue an initial certificate on probation,
2with specific terms and conditions, to any applicant.
3(d) Any denial or discipline shall be decided upon and imposed
4in good faith and in a fair and reasonable manner. Any procedure
5that conforms to the requirements of subdivision
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begin delete reasonable, but a court may also find other procedures to be fair
7and reasonable when the full circumstances of the denial or
8discipline are considered.end delete
9(e) A procedure is fair and reasonable if the procedures specified in subdivision (f) or
11(g) are followed or if all of the following apply:
12(1) Denial or discipline shall be based on a preponderance of
13the evidence. In determining the basis for the denial or
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14 the council may consider all written documents
16or statements as evidence, but shall weigh the reliability of those
17documents or statements.
25(2) The provisions of the procedure are publicly available on
26the council’s Internet Web site.
27(3) The council provides 15 calendar days prior notice of the
28denial or discipline and the reasons for the denial or discipline.
29(4) The council provides an opportunity for the applicant or
30certificate holder, to be heard, orally or in writing, not less than
31five days before the effective date of the denial or discipline, by
32a person or body authorized to decide whether the proposed denial
33or discipline should go into effect.
(1) Notwithstanding any other law, if the council receives
35notice that a certificate holder has been arrested and charges have
36been filed by the appropriate prosecuting agency against the
37certificate holder alleging a violation of subdivision (b) of Section
38647 of the Penal Code or any other offense described in paragraph
39(11) of subdivision (a) of Section 4609, the council shall
P11 1immediately suspend, on an interim basis, the certificate of that
2certificate holder, and take all of the following additional actions:
3(A) Notify the certificate holder at the address last filed with
4the council that the certificate has been suspended and the reason
5for the suspension within 10 business days.
6(B) Provide notification of the suspension by email to the clerk
7or other designated contact of the city, county, or city and county
8in which the certificate holder lives or works, pursuant to the
9council’s records, within 10 business days.
10(C) Provide notification of the suspension by email or first-class
11mail to any establishment or employer, whether public or private,
12that the council has in its records as employing the certificate
13holder, within 10 business days.
14(2) Upon notice to the council that the charges described in
15paragraph (1) have resulted in a conviction, the council shall
16permanently revoke the suspended certificate. The council shall
17provide notice to the certificate holder, at the address last filed
18with the council by a method providing delivery confirmation,
19within 10 business days that it has evidence of a valid record of
20conviction and that the certificate will be revoked unless the
21certificate holder provides evidence within 15 days from the date
22of the council’s mailing of the notice that the conviction is either
23invalid or that the information is otherwise erroneous.
24(3) Upon notice that the charges described in paragraph (1) have
25resulted in an acquittal or have been otherwise dismissed prior to
26conviction, the certificate shall be immediately reinstated and the
27certificate holder and any establishment or employer that received
28notice pursuant to this section shall be notified of the reinstatement
29within 10 business days.
30(g) (1) Notwithstanding any other law, if the council determines
31that a certificate holder has committed an act punishable as a
32sexually related crime or a felony that is substantially related to
33the qualifications, functions, or duties of a certificate holder, the
34council may immediately suspend the certificate of that certificate
35holder. A determination to immediately suspend a certificate
36pursuant to this subdivision shall be based upon a preponderance
37of the evidence and the council shall also consider any available
38credible mitigating evidence before making a decision. Written
39statements by any person shall not be considered by the council
40when determining whether to immediately suspend a certificate
P12 1unless made under penalty of perjury. If the council suspends a
2certificate in accordance with this subdivision, the council shall
3take all of the following additional actions:
4(A) Notify the certificate holder within 10 business days, at the
5address last filed with the council, by a method providing delivery
6 confirmation, that the certificate has been suspended, the reason
7for the suspension, and that the certificate holder has the right to
8request a hearing pursuant to paragraph (2).
9(B) Notify by email or any other means consistent with the
10notice requirements of this chapter, any business or employer,
11whether public or private, that the council has in its records as
12employing or contracting with the certificate holder for massage
13services, and the California city, county, or city and county that
14has jurisdiction over that establishment or employer, that the
15certificate has been suspended within 10 business days.
16(2) A certificate holder whose certificate is suspended pursuant
17to this subdivision shall have the right to request, in writing, an
18oral hearing or consideration of a written statement to challenge
19the factual basis for the suspension. If the holder of the suspended
20certificate requests an oral hearing or consideration of a written
21statement on the suspension, the oral hearing or consideration of
22a written statement shall be held within 30 calendar days after
23receipt of the request. A holder whose certificate is suspended
24based on paragraph (1) shall be subject to revocation or other
25discipline in accordance with subdivision (a).
26(3) If the council determines, after a hearing conducted pursuant
27to this subdivision, to lift the suspension, the certificate shall be
28immediately reinstated and the certificate holder, any establishment
29or employer, and the city, county, or city and county that has
30jurisdiction over that establishment or employer, that received
31notice pursuant to this section shall be notified of the reinstatement
32within 10 business days.
33(h) Any notice required under this section may be given by any
34method reasonably calculated to provide actual notice. Any notice
35given by mail shall be given by first-class or certified mail sent to
36the last address of the applicant or certificate holder shown on the
38(i) An applicant or certificate holder may challenge a denial or
39discipline decision issued pursuant to this section in a court of
40competent jurisdiction. Any action challenging a denial or
P13 1discipline, including any claim alleging defective notice, shall be
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after the effective date of the
3denial or discipline. If the action is
7successful, the court may order any relief, including reinstatement,
8that it finds equitable under the circumstances.
9(j) This section governs only the procedures for denial or
10discipline decision and not the substantive grounds for the denial
11or discipline. Denial or discipline based upon substantive grounds
12that violates contractual or other rights of the applicant or certificate
13holder, or is otherwise unlawful, is not made valid by compliance
14with this section.
Section 4620 of the Business and Professions Code is
17amended to read:
(a) On or before January 1, 2017, for the time period
19beginning on January 1, 2015, the council shall provide a report
20to the appropriate policy committees of the Legislature that
21includes all of the following:
22(1) A feasibility study of licensure for the massage profession,
23including a proposed scope of practice, legitimate techniques of
24massage, and related statutory recommendations.
25(2) The council’s compensation guidelines and current salary
27(3) The status of the council’s progress towards revising the
28school approval process.
29(4) Performance metrics, including, but not limited to:
30(A) The annual number of denied certificate applications, and
31a brief description of the grounds for each decision.
32(B) The annual number of suspended, revoked, or otherwise
33disciplined certificates, and a brief description of the grounds for
35(C) The number of certificates taken off suspension, and a brief
36description of the grounds for each decision.
37(D) The number of schools inspected and unapproved and a
38brief description of the grounds for each decision to unapprove.
39(E) The total number of complaints about certificate holders
40received annually, including a subtotal of complaints received
P14 1from local law enforcement and the action taken by the council as
2a result of those complaints.
3(b) The council shall testify in person if requested by the
4appropriate policy committees of the Legislature.
5(c) This section shall be repealed on January 1, 2021.
Section 4621 of the Business and Professions Code is
8amended to read:
(a) This chapter shall remain in effect only until January
101, 2021, and as of that date is repealed, unless a later enacted
11statute, that is enacted before January 1, 2021, deletes or extends
13(b) Notwithstanding any other law, the powers and duties of the
14council shall be subject to review by the appropriate policy
15committees of the Legislature.
Section 51034 of the Government Code is amended
(a) The Legislature in enacting this chapter recognizes
20the existing power of a city or county to regulate a lawful massage
21business pursuant to Section 37101, or pursuant to Section 16000
22or 16100 of the Business and Professions Code, or under Section
237 of Article XI of the California Constitution.
24(b) Nothing contained in this chapter shall be a limitation on
25that existing power or on the existing authority of a city to license
26for revenue purposes. A city, county, or city and county shall not
27enact or enforce an ordinance that conflicts with the provisions of
28this section or Chapter 10.5 (commencing with Section 4600) of
29Division 2 of the Business and Professions Code.
30(c) Nothing contained in this chapter shall authorize a city,
31county, or city and county to do any of the following:
32(1) Prohibit a person of one sex from engaging in the massage
33of a person of the other sex.
34(2) Define a massage establishment as an adult entertainment
35business, or otherwise regulate a massage establishment as adult
37(3) Require a massage establishment to have windows or walls
38that do not extend from the floor to ceiling, or have other internal
39physical structures, including windows, that interfere with a client’s
40reasonable expectation of privacy.
P15 1(4) Require a massage establishment to have a shower or bath.
2(5) Impose client draping requirements that extend beyond the
3covering of genitalia and female breasts, or otherwise mandate
4that the client wear special clothing.
5(6) Prohibit a massage establishment from locking its external
6doors if the massage establishment is a business entity owned by
7one individual with one or no employees or independent
9(7) Require a massage establishment to post any notice in an
10area that may be viewed by clients that contains explicit language
11describing sexual acts, mentions genitalia, or specific contraception
13(8) Impose a requirement that a person certified pursuant to
14 Chapter 10.5 (commencing with Section 4600) of Division 2 of
15the Business and Professions Code take any test, medical
16examination, or background check, including a criminal
17background check or requiring submission of fingerprints for a
18federal or state criminal background check, or comply with
19education requirements beyond what is required by Chapter 10.5
20(commencing with Section 4600) of Division 2 of the Business
21and Professions Code.
22(9) Impose a requirement that an individual holding a certificate
23issued in accordance with Chapter 10.5 (commencing with Section
244600) of Division 2 of the Business and Professions Code, obtain
25any other license, permit, certificate, or other authorization to
26provide massage for compensation. However, this paragraph shall
27not be construed to prohibit a city, county, or city and county from
28requiring by ordinance that a massage business or establishment
29obtain a license, permit, certificate, or other authorization in order
30to operate lawfully within the jurisdiction.
31(10) Impose a dress code requirement on a person certified
32pursuant to Chapter 10.5 (commencing with Section 4600) of
33Division 2 of the Business and Professions Code in excess of those
34already imposed pursuant to paragraph (10) of subdivision (a) of
35Section 4609 of the Business and Professions Code.
36(11) Prohibit a person certified pursuant to Chapter 10.5
37(commencing with Section 4600) of Division 2 of the Business
38and Professions Code from performing massage for compensation
39on the gluteal muscles, prohibit specific massage techniques
40recognized by the California Massage Therapy Council as
P16 1legitimate, or impose any other specific restriction on professional
2practice beyond those set forth in subparagraph (E) of paragraph
3(1) of subdivision (a) of Section 4609 of the Business and
4Professions Code, except as authorized by Section 460 of the
5Business and Professions Code.