BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2194| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2194 Author: Salas (D), et al. Amended: 8/15/16 in Senate Vote: 21 SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 6/27/16 AYES: Hill, Bates, Block, Gaines, Hernandez, Jackson, Mendoza, Wieckowski NO VOTE RECORDED: Galgiani SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16 AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen ASSEMBLY FLOOR: 79-0, 5/5/16 (Consent) - See last page for vote SUBJECT: California Massage Therapy Council: business of massage SOURCE: Author DIGEST: This bill extends the sunset date for the California Massage Therapy Council (CAMTC) by four years and makes other technical and clarifying changes. ANALYSIS: Existing law: AB 2194 Page 2 1) Establishes Massage Therapy Act (Act) and the CAMTC which is responsible for the administration of the voluntary certification program for certified massage therapists. (Business and Professions Code (BPC) § 4600 et seq.) 2) 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. (BPC § 4600(c)) 3) States that it is the intent of the Legislature that local government, law enforcement, CAMTC and the massage industry and massage professionals work together to improve communications and in a collaborative effort and to develop model local ordinances reflecting the best practices in massage regulation by cities and counties that will respect local control, patient privacy and the dignity of the profession of massage therapy. (BPC § 4600(d)) 4) Defines "massage" as the scientific manipulation of the soft tissues. (BPC § 4601(e)) 5) Define a "sole provider" as a massage business where the owner owns 100% of the business, is the only person who AB 2194 Page 3 provides massage for compensation for that business pursuant to a valid and active certificate and has no other employees or independent contractors. (BPC § 4601(i)) 6) 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 other specified requirements and has not otherwise been unapproved by the CAMTC. (BPC § 4601(a)) 7) Authorizes the CAMTC to take any reasonable actions necessary to carry out the responsibilities and duties under the Act, including, but not limited to, hiring staff, entering into contracts, and developing policies, procedures, rules, and bylaws. (BPC § 4602(b)) 8) Specifies that on September 15, 2015, the CAMTC will be reconstituted and is to be governed by a board of directors comprised of 13 members, appointed by various stakeholders or the CAMTC including the League of Cities, Police Chiefs Association, State Association of Counties, representative from anti-human trafficking organization, California Community Colleges, Department of Consumer Affairs (DCA), Association of Private Postsecondary Schools, Massage Therapy Association, public health official, certified massage therapist and three additional members, as specified. (BPC § 4602(g)) AB 2194 Page 4 9) 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 § 4602(j)) 10)Provides that in order for a massage therapist to obtain certification that they must submit an application and provide CAMTC with satisfactory evidence that he or she is 18 years of age or older, has successfully completed 500 hours of instruction in massage and related subjects as specified, the applicant has passed a competency assessment examination that is approved by CAMTC, the applicant has successfully passed a background investigation as required and has not violated any provisions of the Act. (BPC § 4604) 11)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 § 4607) 12)Provides that the CAMTC may deny an application for a certificate or impose discipline on a certificate holder or revoke the certificate for the commission of any of the acts, as specified, including, but not limited to, unprofessional conduct, failure to disclose all information requested on an application, committing a fraudulent, dishonest or corrupt act, being convicted of felony, misdemeanor, etc., or a sexually related crime or if required to register as a sex offender. (BPC § 4609) AB 2194 Page 5 13)Provides for procedures that are imposed in good faith and in a fair and reasonable manner for the denial of an applicant for a certificate or the discipline of a certificate holder which allows for the placing of a certificate holder on probation, suspending the certificate, revoking the certificate of taking other actions as deemed appropriate and authorized by the CAMTC. (BPC § 4610) 14)Provides that it is unfair business practice for a person to hold himself or herself out as a "certified massage therapist" or in any manner that implies or suggests that the person is certified by the CAMTC. (BPC § 4611) 15)Prohibits a city, county, or city and county from enacting or enforcing an ordinance that conflicts with the provisions of the 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 § 4612) 16)Requires the CAMTC upon request of any law enforcement agency or other representatives of a local government agency AB 2194 Page 6 with responsibility for regulating or administering a local ordinance relating to massage or massage establishments to provide information concerning an applicant or certificate holder, as specified. (BPC § 4614) 17)Authorizes the CAMTC to have the responsibility to determine whether the school from which an applicant has obtained education required meets the requirements of the Act and to develop policies, procedures, rules, or bylaws governing the requirements and process for approval and unapproval of schools, as specified. (BPC § 4615) 18)Requires the CAMTC on or before June 1, 2016, to provide a report to the Legislature that includes a feasibility study as specified, information regarding the operation of the CAMTC, and the disciplinary action taken by CAMTC against both applicants and certificate holders. (BPC § 4620) 19)Provides that the Act shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends the date, and that the powers and duties of the CAMTC shall be subject to review by the appropriate policy committee of the Legislature. (BPC § 4621) 20)Prohibits a city, county, or city and county from prohibiting or requiring a number things, as specified, in AB 2194 Page 7 the operation of a massage establishment This bill: 1) Extends the provisions of the Act by four years until January 1, 2021. 2) Extends the requirement for a report that is to be provided to the Legislature which includes a feasibility study as specified, information regarding the operation of the CAMTC, and the disciplinary action taken by CAMTC against both applicants and certificate holders, to January 1, 2017. 3) Clarifies that a city, county, or city and county shall not require of a person who is certified pursuant to the Act, to have to submit to another background check, including, but not limited to, a criminal background check, or require submission of fingerprints for a federal or state criminal background check. 4) Prohibits a city, county, or city and county from requiring a massage establishment to have a shower or bath. 5) Makes other technical and clarifying changes. Background 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 Act is administered by a private nonprofit organization, not an agency under the AB 2194 Page 8 DCA. The provision authorizing the establishment of the nonprofit oversight body for the purpose of administering the voluntary massage certification program is specified in the Act. 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 the Act. CAMTC-certified professionals are recognized throughout California to provide massage services but may still be subject to local ordinances and business regulations. Section 51034 of the Government Code provides modest restrictions on local ordinances regarding 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 and Professions Committee and the Assembly Business and Professions Committee (Committees) conducted several joint oversight hearings to review 12 regulatory entities, including CAMTC. This bill is intended to implement legislative changes as recommended by the Committees' staff Background Papers prepared for each entity reviewed. Sunset Review of the CAMTC. 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 AB 2194 Page 9 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 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 of 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; 6) return of local control; and 7) establishment of a number of new protections for certified professionals. The two-year extension provisions enacted after the CAMTC's last sunset review were 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 entities during the transition to make any potentially needed follow-up changes. During the review of the CAMTC in 2016, several issues were brought to light regarding the operation of CAMTC and especially the effect of restoring local government's complete regulatory authority over all massage businesses. Prior to enactment of AB 1147, massage businesses which only employed certified massage professionals were exempt from certain aspects of local control, including zoning, land use, fees or other local requirements, because of a preemption clause in the Act. AB 1147 deleted any such preemption for certified-only massage professionals in order to restore local government's regulatory authority over all massage businesses in each jurisdiction. Although AB 1147 was intended to strike a balance between professional regulation AB 2194 Page 10 and local control, it would appear as if many cities and counties have imposed several types of very restrictive requirements on the operation of massage businesses and establishments within their city or county boundaries. As indicated by the American Massage Therapy Association, California Chapter, over 100 cities have included restrictions in their ordinances which the massage profession views as "adult entertainment ordinances" as opposed to massage therapy ordinances. Elements of these ordinances include: Moratoria on new businesses and issuance of new business licenses to tenants and independent contractors of existing businesses; Conditional use permits; Perceived high application and/or establishment fees; Exclusionary zoning; Distancing requirements from like businesses and/or sensitive land use (such as schools, churches, residences, other massage establishments, etc.?); Prohibited mobile (in-home or outcall) or home-based businesses (home office); massage; Requirements that businesses that provide mobile only services must have a brick and mortar location within the city (not home-based); Additional background checks and Live Scans of the CAMTC certificate holders who are owners or operators, including sole providers; and, Additional fees for local authorities to verify certification. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee, there is no fiscal impact to the state from the extension of the operation of CAMTC, as CAMTC is a non-profit organization and is not part of state government. The analysis also cites ongoing costs of about $300,000 per year for the Department of Justice to process background checks for applicants applying for certification by the CAMTC (Fingerprint Fees Account). The number of new applicants for certification over the last several years has varied considerably. On average, CAMTC has received about 10,000 applications per year. Currently, the Department of Justice assesses a $32 fee to cover its costs to process a background AB 2194 Page 11 check. (Applicants are also required to pay a fee to the Federal Bureau of Investigation and to the entity that collects the applicant's fingerprint.) SUPPORT: (Verified8/12/16) California Chapter of the American Massage Therapy Association OPPOSITION: (Verified8/12/16) None received ARGUMENTS IN SUPPORT: The California Chapter of the American Massage Therapy Association (AMTA) is in support of this bill and indicates that CAMTC plays an important role for our industry and its uninterrupted operation is critical for our practice, however, AMTA still has areas of concern with actions being taken by cities and counties regarding massage establishments throughout the state and believe that other changes are necessary but still understands the need and desire for continued operation of the CAMTC and do not wish to jeopardize its continuation. ASSEMBLY FLOOR: 79-0, 5/5/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Beth Gaines AB 2194 Page 12 Prepared by:Bill Gage / B., P. & E.D. / (916) 651-4104 8/15/16 20:33:26 **** END ****