BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2194|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   THIRD READING 


          Bill No:  AB 2194
          Author:   Salas (D), et al.
          Amended:  8/19/16 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.
           
           Senate Floor Amendments of 8/19/16 include intent language that  
          suggests that local governments give strong consideration to  
          establishing a registration program that gives them the  
          authority to either suspend or revoke the registration of  
          massage businesses for specific violations; change legislative  
          intent language to directive (statutory) language regarding the  








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          requirement that local governments only impose and enforce  
          reasonable and necessary fees and regulations on massage  
          businesses; and clarify that the denial or discipline procedures  
          of CAMTC, including final decisions which can be taken based on  
          declarations made under penalty of perjury and specifies the  
          standard for judicial review.   


          ANALYSIS:  


          Existing law:


           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  







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             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  
             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))



           9) States that the meetings of the CAMTC are subject to the  
             rules of the Bagley-Keene Open Meeting Act (Bagley-Keene), as  







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             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)



           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 







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           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  
             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  







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             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  
             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.









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          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  
          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.









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          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  
          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  







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          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  
          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;







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           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:   Yes


          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  
          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:   (Verified8/22/16)


          California Chapter of the American Massage Therapy Association


          OPPOSITION:   (Verified8/22/16)








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          One Individual


          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

          Prepared by:Bill Gage / B., P. & E.D. / (916) 651-4104
          8/23/16 12:55:17


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