BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2194|
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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:
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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
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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))
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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)
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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
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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
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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
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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
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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
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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
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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
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Prepared by:Bill Gage / B., P. & E.D. / (916) 651-4104
8/15/16 20:33:26
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