BILL ANALYSIS Ó
AB 2194
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Rudy Salas, Chair
AB 2194
(Salas) - As Amended April 5, 2016
SUBJECT: California Massage Therapy Council: extension of
sunset date.
SUMMARY: Extends the sunset date for the California Massage
Therapy Counsel (CAMTC) by two years, and makes other technical
and clarifying changes.
EXISTING LAW:
1)Establishes Massage Therapy Act and the CAMTC which is
responsible for the administration of the voluntary
certification program for certified massage therapists.
(Business and Professions Code (BPC) Sections 4600 et seq.)
2)Authorizes the CAMTC to take any reasonable actions necessary
to carry out the responsibilities and duties under the Massage
Therapy Act, including but not limited to, hiring staff,
entering into contracts, and developing policies, procedures,
rules, and bylaws. (BPC Section 4602(b))
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3)Defines "massage" as the scientific manipulation of the soft
tissues. (BPC Section 4601(e))
4)Define a "sole provider" as a massage business where the owner
owns 100% of the business, is the only person who provides
massage for compensation for that business pursuant to a valid
and active certificate and has no other employees or
independent contractors. (BPC Section 4601(i))
5)Defines an "approved school" or "approved massage school" as a
school that meets minimum standards for training and
curriculum in massage and related subjects, that meets
specified requirements and has not otherwise been unapproved
by the CAMTC. (BPC Section 4601)
6)States that the meetings of the CAMTC are subject to the rules
of the Bagley-Keene Open Meeting Act (Bagley-Keene), as
specified, and authorizes the CAMTC to adopt additional
policies and procedures that provide greater transparency to
certificate holders and the public than required by the
Bagley-Keene. (BPC Section 4602(j))
7)Specifies that the CAMTC is to be governed by a board of
directors comprised of 13 members, appointed by various
stakeholders. (BPC Section 4602(g))
8)Authorizes the CAMTC to discipline an owner or operator of a
certified massage business or establishment who is certified
by the CAMTC for the conduct of all individuals providing
massage for compensation. (BPC Section 4607)
9)Prohibits a city, county, or city and county from enacting or
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enforcing an ordinance that conflicts with the provisions of
the Massage Therapy Act or Section 51034 of the Government
Code (GC), but does not prohibit a city, county, or city and
county from licensing, regulating, prohibiting, or permitting
an individual who provides massage for compensation without a
certificate issued by the CAMTC. (BPC Section 4612)
10)States that it is the intent of the Legislature that local
governments impose and enforce only reasonable and necessary
fees and regulations in keeping with the requirements of
existing laws and being mindful of the need to protect
legitimate business owners and massage professionals,
particularly sole providers, during the transition period and
after for the sake of developing a healthy and vibrant local
economy.
11)Prohibits a city, county, or city and county from the
following: (GC Section 51034(c)(1-8))
a) Prohibiting a person of one sex from engaging in the
massage of a person of the other sex;
b) Define a massage establishment as an adult entertainment
business, or otherwise regulate a massage establishment as
adult entertainment;
c) Require 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;
d) Impose client draping requirements, as specified;
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e) Prohibit a massage establishment from locking its
external doors if the massage establishment is a business
entity owned by one individual with one or no employees or
independent contractors;
f) Require a massage establishment to post a notice in an
area viewed by clients that contains explicit language, as
specified;
g) Require a certified individual to take any test, medical
examination, or background check, or comply with education
requirements beyond what is required under the Massage
Therapy Act; and,
h) Impose a requirement that an individual holding a
certificate in accordance with the Massage Therapy Act,
obtain any other license, permit, certificate or other
authorization to provide massage for compensation, as
specified; however, a city is not prohibited from requiring
an ordinance that a massage business or establishment
obtain a license, permit, certificate, or other
authorization in order to operate lawfully within the
jurisdiction.
THIS BILL:
1)Extends the provisions of the CAMTC by two-years until January
1, 2019.
2)Makes other technical and clarifying changes.
FISCAL EFFECT: Unknown. This bill is keyed fiscal by the
Legislative Counsel.
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COMMENTS:
Purpose. Unless legislation is carried this year to extend the
sunset date for the CAMTC, it will be repealed on January 1,
2017. The legislative changes reflected in this bill are
solutions to issues raised about the CAMTC in the Business and
Profession's Committee staff Background Paper and during its
subsequent sunset review hearing.
CAMTC. The CAMTC is a nonprofit organization responsible for
the voluntary certification and recertification of massage
therapists and the recertification of massage practitioners.
The certification law was initially enacted by SB 731(Oropeza),
Chapter 384, Statutes of 2008. Because certification is
voluntary, non-certified individuals may provide massage
services in accordance with local rules and regulations. SB 731
authorized the creation of a governing certification entity, the
Massage Therapy Organization which was renamed the CAMTC by AB
619 (Halderman) Chapter 162, Statutes of 2011.
Unlike other practice acts in the BPC, the Massage Therapy Act
is administered by a private nonprofit organization, not an
agency under the Department of Consumer Affairs (DCA). The
provision authorizing the establishment of the nonprofit
oversight body for the purpose of administering the voluntary
massage certification program is specified in BPC Section 4602.
As a nonprofit public benefit organization, the CAMTC must abide
by nonprofit corporations law, as specified in the Corporations
Code. The CAMTC is authorized by statute to take any reasonable
actions necessary to carry out its responsibilities and duties,
as specified in BPC Section 4600 et seq.
CAMTC-certified professionals are recognized throughout
California to provide massage services but may still be subject
to local ordinances and business regulations. GC Section 51034
provides modest restrictions on local ordinances regarding
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certified massage professionals and massage businesses. For
individuals who are not certified by the CAMTC, local
jurisdictions may regulate those individuals according to their
local ordinances.
The law also authorizes the CAMTC to deny applications and
discipline certificate holders by denying an applicant or
revoking, suspending, or placing probationary conditions on an
individual's certificate.
The CAMTC's Board of Directors (board) is currently comprised of
13 members who are appointed by various entities including, but
not limited to, massage trade associations, the League of
California Cities, the DCA, the California Police Chiefs
Association, the California State Association of Counties, the
Chancellor of the California Community Colleges, the California
Association of Private Postsecondary Schools, an anti-human
trafficking organization, and the CAMTC itself.
Joint Oversight Hearings and Sunset Review of DCA Licensing
Boards. In March of 2016, the Senate Business, Professions and
Economic Development Committee and the Assembly Business and
Professions Committee (Committees) conducted multiple joint
oversight hearings to review 11 regulatory boards within the
DCA, and one regulatory entity outside of the DCA. The sunset
bills are intended to implement legislative changes recommended
in the respective background reports drafted by the Committees
for the agencies reviewed this year.
The Sunset Review Process. The sunset review process provides a
formal mechanism for the DCA; the Legislature; the regulatory
boards, bureaus and committees; interested parties; and
stakeholders to make recommendations for improvements to the
authority of consumer protection boards and bureaus. This is
performed on a standard four-year cycle and was mandated by SB
2036 (McCorquodale), Chapter 908, Statutes of 1994. Each
eligible agency is required to submit to the Committees a report
covering the entire period since last reviewed that includes,
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among other things, the purpose and necessity of the agency and
any recommendations of the agency for changes or reorganization
in order to better fulfill its purpose. During the sunset
review hearings, the Committees take public testimony and
evaluate the eligible agency prior to the date the agency is
scheduled to be repealed. An eligible agency is allowed to
sunset unless the Legislature enacts a law to extend,
consolidate, or reorganize the eligible agency.
In 2014, the CAMTC underwent its first sunset review 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. As a result, AB 1147 (Bonilla, Gomez, and Holden)
Chapter 406, Statutes of 2014, made numerous changes to the
Massage Therapy Act. The CAMTC was granted a two-year sunset
extension in order to provide the Legislature with the
opportunity to examine the performance of these new provisions
related to the operations of the CAMTC and the local government
response to the elimination of preemption, and make any needed
follow-up changes. Although AB 1147 was signed into law in
2014, the provisions of that bill did not take effect until
January 1, 2015. Some of the major changes required by AB 1147
included: 1) the establishment of a fee cap for certification
and recertification fees; 2) sunset the CMP certification tier;
3) expansion of the definition of unprofessional conduct; 4)
requirement of the CAMTC to develop policies, procedures, rules
or bylaws for the approval of schools; 5) reconstitution of the
CAMTC board; 4) return of local control; and established a
number of new protections for certified professionals.
The two-year extension provisions enacted after the CAMTC's last
sunset review was intended to provide the Legislature with an
opportunity to review the CAMTC's implementation of the numerous
changes that resulted from AB 1147. Moreover, the two-year
sunset extension ensured that the Legislature would be able to
examine the performance of the new provisions of GC Section
51304 and the deletion of preemption which shifted the
regulation of massage businesses back to the local regulatory
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entities during the transition to make any potentially needed
follow-up changes.
Technical Amendments. The CAMTC identified several issues in
need of technical clarification in its 2015 Sunset Review
Report, including the three referenced below:
BPC Section 4601(a) defines an "approved school" or an "approved
massage school" as a school that is approved by the council that
meets minimum standards for training and curriculum in massage
and related subjects, and that is additionally approved by a
specified list of accrediting bodies. As a result of AB 1147,
BPC Section 4604(a)(2)(B) specifies that in order to obtain
certification, all 500 hours of education must be from schools
"approved by the council." As noted in the CAMTC's 2015 Sunset
Review Report, because the CAMTC is not the only entity
responsible for school-approval, it requests to replace "schools
approved by the council" with an "approved school" for
consistency with the definition of an "approved school" as
defined in BPC Section 4601(a).
Prior to AB 1147, there was a provision in the Massage Therapy
Act which required the CAMTC to notify the employers of
certificate holders that were suspended based on an arrest with
charges filed for Penal Code 647(b) (prostitution), or an act
punishable as a sexually-related crime, at the last address
filed with the CAMTC. BPC Section 4610(f)(1)(C) changed this
provision to limit the notification of employers to an
email-only notification. As reported by the CAMTC, often times
applicants fail to provide the CAMTC with an email address for
the vast majority of businesses (even though one is requested),
and an email message may easily be ignored. The CAMTC requests
to revise current law to allow for the specified notification to
employers to be completed via email or first-class mail.
BPC Section 4610(e)(4) specifies that when the CAMTC is
proposing to deny an application or impose discipline on a
certificate holder, the disciplinary procedure is fair and
reasonable if specified conditions are followed, including "an
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opportunity for the applicant or certificate holder, to be
heard, orally or in writing." However, BPC Section 4610(g)(2),
a provision allowing for suspension based on evidence, does not
specify that a certificate holder has the opportunity to be
heard "orally or in writing." The CAMTC reported that although
the CAMTC interprets this provision to provide for an oral
hearing or consideration of a written statement, clarification
of this provision might better inform certificate holders of
their options in appealing a disciplinary matter.
AMENDMENT(S):
The following amendments will make technical and minor
non-controversial changes to the Massage Therapy Act:
In Business and Professions Code Section 4604(a)(2)(B) strike
schools approved by the council and replace with approved
school .
In Business and Professions Code Section 4610(f)(1)(C), after
"email" insert or first class mail,
In Business and Professions Code Section 4610(g)(2), after
"provides evidence" insert either orally or in writing,
REGISTERED SUPPORT:
American Massage Therapy Association, California Chapter
REGISTERED OPPOSITION:
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None on file.
Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301