BILL ANALYSIS                                                                                                                                                                                                    



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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