BILL ANALYSIS Ó
AB 2793
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Date of Hearing: April 26, 2016
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Rudy Salas, Chair
AB 2793
(Jones) - As Amended April 11, 2016
SUBJECT: Local government: business license: massage:
bowenwork.
SUMMARY: Excludes bowenwork from the business of massage.
EXISTING LAW:
1)Authorizes a city, county, or city and county to enact an
ordinance which provides for the licensing and regulation of
the business of massage when carried on within the city,
county, or city and county. (Government Code (GC) Section
51030)
2)States that the ordinance may condition the issuance of a
massage business license upon proof that a massage business
meets reasonable standards, including, but not limited to, age
of massage personnel, education, experience, and passage of a
practical examination for massage personnel, sanitary
conditions of an establishment, and hours of operation for a
massage business. (GC Section 51031)
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3)States that an ordinance may provide for the denial of
business license for massage, as specified. (GC Section
51032)
4)Exempts cosmetologists, barbers, and licensed healing arts
practitioners from massage ordinance requirements. (GC
Section 51033)
5)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) Defining a massage establishment as an adult
entertainment business, or otherwise regulate a massage
establishment as adult entertainment;
c) Requiring 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) Imposing client draping requirements, as specified;
e) Prohibiting 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;
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f) Requiring a massage establishment to post a notice in an
area viewed by clients that contains explicit language, as
specified;
g) Requiring 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) Imposing 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.
6)Defines "massage" to mean the scientific manipulation of the
soft tissues. (Business and Professions Code (BPC) Section
4601(e))
THIS BILL:
1)States that the business of massage does not include
bowenwork.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS:
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Purpose. This bill exempts bowenwork from the business of
massage in an effort to alleviate practitioners of bowen therapy
from being required to obtain a massage therapy certification in
those jurisdictions which require a voluntary certification in
order to practice massage therapy. This bill is sponsored by
BowenUSA . According to the author, "[This bill] is a bill
advocating for small businesses. Trained and certified Bowen
practitioners should not be prohibited in their ability to
provide for themselves and their families because they don't
have a massage license. Spending upwards of $10,000 to become
licensed in a massage discipline that Bowen practitioners will
never take advantage of, represents an unfair regulatory burden
that is stifling this growing technique. Nothing in this bill
prohibits a municipality from rejecting a business license for
Bowenwork, it simply states that they cannot reject a Bowen
practitioner solely because they don't have a massage license."
Background. Bowen Therapy. According to the American Bowen
Academy, "Bowenwork is a system of touch that initiates a series
of responses through stimulation of the nervous,
musculoskeletal, and fascial systems and the energetic
pathways." According to information provided by the author,
"Bowenwork certified practitioners engage in short 2-5 second
light touch movements over various parts of a client's body.
The client is fully clothed for the entire duration of the
session which could last anywhere from 20 minutes to two hours.
Bowen was developed in Australia about 60 years ago, and
continues to grow in popularity in both England and the United
States. It essentially works by triggering the body's natural
ability to promote healing. These moves (on muscles, tendons,
ligaments, and nerves) deliver signals to the nervous system
that healing needs to occur. What makes Bowen unique is that it
addresses the entire body, by restoring balance via the
autonomic nervous system (ANS). It should be noted that unlike
massage, chiropractic, or other similar healing arts
disciplines, Bowenwork is largely hands off. Movements last
two-five seconds followed by a rest period that could last as
long as 5-7 minutes while the nervous system takes time to
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adjust. During a typical hour-long session, the time a Bowen
practitioners hands are on the body could be as short as 20-25
minutes. While all massage is bodywork, not all bodywork is
massage."
Massage Therapy. To practice massage therapy in California, a
state-issued license is not required. However, massage
practitioners may obtain a voluntary certification from the
California Massage Therapy Council (CAMTC). Any person may
practice massage therapy in compliance with local ordinances,
but some jurisdictions require massage professionals to obtain
the voluntary certification. Local ordinances vary and may
include specifications for professionals (massage practitioners)
and the businesses including educational standards, examination
requirements, conditional use permits, hour restrictions,
exclusionary zoning, distance requirements, moratoria on new
businesses, background checks for owners and practitioners,
prohibitions on outcall and mobile businesses, and conditional
use permits.
To some in the massage industry, these ordinances are often seen
as barriers to opening and operating successful massage therapy
businesses, and are aimed at deterring illegitimate businesses
rather regulating healing arts businesses. This bill would
specifically exempt bowenwork from being classified as the
business of massage, potentially alleviating bowenwork
practitioners from being subject to massage business ordinances
and regulations in local jurisdictions. The author noted that
"prior to 2013, new Bowen practitioners were granted "voluntary"
massage licenses by the [CAMTC], even though Bowen has little in
common with massage. The license allowed Bowen practitioners to
easily receive a business license and set up shop. This changed
in 2013 when [the CAMTC] ceased to give the voluntary massage
licenses to new Bowen practitioners. A follow-up effort where
Bowen sought to work with [the CAMTC] on a certification process
went nowhere."
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The voluntary certification of massage was a result of SB 731
(Oropeza), Chapter 384, Statutes of 2008. Prior to January 2,
2012, there were three pathways available for certification
which allowed individuals with varying amounts of education an
opportunity to become certified. As of January 1, 2015, all
applicants for certification as a certified massage therapist
must obtain 500 hours of education and pass an examination. In
comparison, according to the American Bowen Academy, bowenwork
practitioners complete 340 hours of training in order to become
certified by the American Bowen Academy.
A person using the term "certified massage practitioner" or
"certified massage therapist" or any other term, such as
"licensed," "certified," "CMP," or "CMT," that implies or
suggests that the person is certified as a massage therapist or
practitioner, without being certified by the CAMTC, would be
considered an unfair business practice under BCP Section 4611.
A practitioner practicing bowenwork would not be able to use the
title "CMP" or "CMT" unless he or she has obtained a voluntary
certification from the CAMTC to practice massage therapy.
Other States. Forty states and Puerto Rico regulate the
practice of massage through some form of licensure, which
includes the completion of an educational program,
background checks, and the passage of an approved
examination. Two states offer a licensure or certification
level, depending on the type of practitioner. Three states,
including California, offer a certification for massage
therapists; however, California is the only state to offer
a voluntary certification to practice.
In 2011, Oregon passed SB 454 which exempted bowenwork and
other therapies from needing a massage licensure to
practice. In 2015, Arkansas introduced House Bill 1589 to
exempt bowen therapy or bowen technique from massage
licensure requirements. However, some states, such as
North Carolina, require a massage and bodywork therapy
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license for those professionals practicing a number of
modalities including the bowen technique.
Massage Scope of Practice. Because California does not
recognize massage therapy as a licensed profession and
there is not a defined scope of practice, during the
CAMTC's 2014 sunset review, the issue of a scope of
practice for massage therapy was raised. As a result of AB
1147 (Bonilla, Gomez, and Holden) Chapter 406, Statutes of
2014, the CAMTC is required to complete a feasibility study
of licensure for the massage profession, including a
proposed scope of practice, legitimate techniques of
massage, and related statutory recommendations (BPC Section
4620(a)(1)). The outcome of this study may help provide
some clarification about the practice of massage therapy
and those techniques that should be included within its
scope.
It is important to note, that under current law, there is
not a defined scope of practice for massage therapy in
California. BPC Section 4601(e) specifies a narrowly
tailored scope of practice for massage therapy, which
includes the definition of massage and does not prohibit
those other licensed professions from practicing massage as
allowed by their professional scope of practice as
specified in the BPC or in the California Code of
Regulations.
Other Professions that Include Massage within their Scope
of Practice. California has established scopes of practice
and licensing regulation for physical therapy, acupuncture,
cosmetology, chiropractic, and naturopaths. Each
profession includes massage in some form and licensees are
authorized to perform massage in accordance to each
profession's respective practice act, including:
Acupuncture. BPC Section 4937(b ) authorizes the holder of
an acupuncturist license to perform or prescribe the use of
Asian massage, acupressure, breathing techniques, exercise,
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heat, cold, magnets, nutrition, diet, herbs, plant, animal,
and mineral products, and dietary supplements to promote,
maintain, and restore health.
Barbering and Cosmetology. BPC Section 7316 specifies that
practice of cosmetology includes massaging, cleaning or
stimulating the scalp, face, neck, arms, or upper part of
the human body, by means of the hands, devices, apparatus
or appliances, with or without the use of cosmetic
preparations, antiseptics, tonics, lotions, or creams. BPC
Section 7316(b)(6) provides that cosmetologists may massage
hands and feet.
Chiropractic. California Board of Chiropractors Title 16
CCR Section 302 specifies the scope of practice for
chiropractors includes the manipulation and adjustment of
the spinal column and other joints of the human body. It
further states that a chiropractor may manipulate the
muscle and connective tissue as part of a chiropractic
treatment and massage is listed as part of that treatment.
Naturopaths. BPC Section 3640 specifies that a
naturopathic doctor may among other things dispense,
administer, order, and prescribe or perform the following:
hot or cold hydrotherapy; naturopathic physical medicine
inclusive of the manual use of massage, stretching,
resistance, or joint play examination but exclusive of
small amplitude movement at or beyond the end range of
normal joint motion; electromagnetic energy; colon
hydrotherapy; and therapeutic exercise.
Physical Therapy. BPC Section 2620 defines physical
therapy as the art and science of physical or corrective
rehabilitation or of physical or corrective treatment of
any bodily or mental condition of any person by the use of
the physical, chemical, and other properties of heat,
light, water, electricity, sound, massage, and active,
passive, and resistive exercise, and shall include physical
therapy evaluation, treatment planning, instruction and
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consultative services.
While the author contends that exempting bowenwork from the
business of massage will alleviate practitioners from being
required to obtain a voluntary certification in order to
practice bowenwork, this bill does not prohibit local
jurisdictions from regulating bowenwork businesses,
including requiring educational components, examinations,
background checks, conditional use permits, or specifying
other requirements on businesses that offer bowenwork.
ARGUMENTS IN SUPPORT:
BowenUSA writes in support, "[this bill] is needed because
professional Bowenwork practitioners feel trapped in a
regulatory maze that is prohibiting them from practicing
legitimately. Until 2013, it was common for the Massage Therapy
Council (MTC) to grant professional Bowenwork practitioners
voluntary massage licenses if they presented a Bowenwork
certificate from the American Bowen Academy. Armed with a
massage license, newly certified practitioners had no problem
getting a business license from their local municipality.
However, MTC has stopped giving Bowenwork practitioners massage
licenses presumably because they do not believe Bowenwork is
massage. The problem arises when practitioners go to get a
business license and are confronted with the question, "Where is
your massage license?" This problem is inhibiting the growth of
small businesses and is leading to a confusing regulatory
problem. For instance, the City of Roseville grants Bowenwork
therapists a license, while Sacramento County does not.
Currently, the only guaranteed way for Bowenwork practitioners
to get a business license is if they have a massage license.
Bowenwork practitioners who have spent thousands of dollars to
become professionally certified through the American Bowen
Academy should not have to spend thousands of dollars more on a
massage license that will never be used. For the sake of
regulatory consistency and giving Bowenwork practitioners the
chance to thrive in California, we request that this
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common-sense exemption be granted."
ARGUMENTS IN OPPOSITION:
None on file.
POLICY ISSUES FOR CONSIDERATION:
Given that the CAMTC is in the process of conducting a
feasibility study on licensure including a proposed scope of
practice for massage therapy, this bill may be premature.
In order to clarify that bowenwork is not within the practice of
massage therapy, the author should amend the bill to specify
that bowenwork is not the practice of massage instead of the
business of massage as currently stated in the bill.
REGISTERED SUPPORT:
BowenUSA
REGISTERED OPPOSITION:
None on file.
Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301
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