BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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