BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 285 (Correa)
As Introduced February 14, 2011
Hearing date: May 3, 2011
Penal Code
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MASSAGE THERAPY CERTIFICATION:
FRAUD
HISTORY
Source: Orange County District Attorney
Prior Legislation: SB 731 (Oropeza) - Ch. 384, Stats. 2008
Support: California Massage Therapy Council; Association of
Orange County Deputy Sheriffs; Santa Ana Police
Officers Association; Long Beach Police Officers
Association; Los Angeles County Professional Peace
Officers Association; California Fraternal Order of
Police
Opposition:None known
KEY ISSUES
SHOULD A PERSON WHO FALSELY ASSERTS OR AFFIRMS THAT A PERSON HAS
RECEIVED MASSAGE THERAPY INSTRUCTION BE GUILTY OF A MISDEMEANOR,
WITH A MAXIMUM JAIL TERM OF ONE YEAR AND A FINE OF UP TO $2,500, AS
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SPECIFIED?
WHERE ANY PERSON IS PROSECUTED FOR A CRIME CONNECTED WITH MASSAGE
THERAPY, SHOULD A LAW ENFORCEMENT AGENCY INFORM THE MASSAGE THERAPY
ORGANIZATION ABOUT THE PERSON'S TRAINING, AS SPECIFIED?
PURPOSE
The purposes of this bill are to provide 1) that any person who
falsely asserts or affirms, including through issuance of an
unearned diploma or certificate, that a person has received
massage therapy instruction, is guilty of a misdemeanor, with a
maximum jail term of one year and a fine of up to $2,500; and 2)
that where any person is prosecuted for a crime connected with
massage therapy, including prostitution, a law enforcement
agency shall inform the Massage Therapy Organization about the
person's massage therapy training, including the name of any
school the person attended, as specified.
Existing law includes a process for voluntary certification by a
non-profit Massage Therapy Organization (the California Massage
Therapy Council) of a person as a massage therapist or related
professional. (Bus. & Prof. Code � 4600 et seq.)
Existing law provides that a person must complete 250 hours of
specified training to obtain certification as a massage
practitioner. (Bus. & Prof. Code � 4601, subd. (a).)
Existing law provides that a person must complete 500 hours of
specified training to obtain certification as a massage
therapist. (Bus. & Prof. Code � 4601, subd. (c).)
Existing law provides that certification is valid for two years.
(Bus. & Prof. Code � 4601, subd. (f).)
Existing law provides that a person who obtains a certificate
has the right to practice massage in any city, county or city
and county in California. (Bus. & Prof. Code � 4612, subd. (a).)
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Existing law authorizes local government entities to enact
reasonable health and safety requirements for massage
establishments and zoning rules that do not discriminate against
massage businesses. (Bus. & Prof. Code � 4612, subds. (a)-(b).)
Existing law authorizes local government entities to regulate
massage services by persons who are not certified. (Bus. & Prof.
Code � 4613.)
This bill provides that any person who provides a certificate,
diploma or other document, or otherwise affirms that a person
has received massage therapy instruction, knowing that the
person has not received such training, is guilty of a
misdemeanor, punishable by a fine of no more than $2,500, or
imprisonment in county jail for up to one year, or both.
This bill provides that any person who is criminally prosecuted
for a violation of law in connection with massage therapy,
including crimes related to prostitution, a law enforcement
agency shall inform the Massage Therapy Organization (created
pursuant to Section 4600.5) about the instruction received by
the person prosecuted, including the name of any school attended
by the prosecuted person.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
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federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Need for This Bill
According to the author:
This legislation addresses fraudulent issuance of
transcripts by massage schools. Criminalizing this
conduct will deter massage schools from assisting
human traffickers in sexually exploiting women. In
addition, the identity of the massage school attended
by a massage therapist who has been prosecuted for
prostitution should be provided to the California
Massage Therapy Council (CAMTC) so that massage
schools that are in league with human traffickers can
be readily identified.
Human trafficking is one of the fastest growing
criminal industries in the world. Traffickers reap
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billions in profits by using force, fraud, and
coercion to rob victims of their freedom. According
to the U.S. State Department there are 12.3 million
human trafficking victims around the world; 56 percent
of whom are women and girls. In 2009, 49,105 victims
were identified worldwide, a 59 percent increase over
2008.
California is a prime target for traffickers. The 2007
Human Trafficking in California Final Report found
that the majority of victims were non-citizens, with
or without valid travel documents. The report stated
that prostitution was the most common form (47 %) of
human trafficking followed by domestic servitude (33
%) and agriculture (2 %).
Increasingly, human trafficking victims to work in
illegitimate massage parlors, providing sexual
services under the guise of massage therapy.
Traffickers bring in women, often from Asia, and force
them to work off the debt of being smuggled into the
United States by working in massage parlors as
prostitutes.
In order for a trafficking victim to work in a massage
parlor, either a local police department permit or a
certificate from the California Massage Therapy
Council ("CAMTC") is required. The CAMTC was
established by the Legislature to certify massage
therapists statewide. Police and CAMTC require a
transcript from a massage school certifying that the
student has received 500 hours of massage training, in
English. Many victims speak little or no English and
could not complete such training and traffickers do
not want to wait six months for victims to complete
training. Thus, the traffickers purchase falsified
massage school transcripts. Ending access to
fraudulent transcripts will make human trafficking
significantly more difficult. Unfortunately, under
existing law, it is not a crime to sell someone a
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phony massage school transcript. This bill would
remedy that problem.
This bill addresses a second problem. Each police
department only knows of massage school-related
prostitution arrests in their local area. This
information is not collated in a single location and
made available to law enforcement agencies. This
makes it very difficult to identify the fraudulent
massage schools. This legislation would require this
information be provided to CAMTC for distribution to
all law enforcement agencies who wish to receive it.
2. Background - Massage Therapy Certification
Massage therapy practice is not directly regulated by a state
agency. Rather, state law authorizes or creates a non-profit
organization, the CAMTC that provides voluntary or optional
massage certification. The governing statutes describe the
composition of the organization and set the standards for
massage practitioners and the more advanced status of massage
therapists.
The website of the Massage Therapy Council describes the
statutory purpose and duties of the council:
(1) Create and implement voluntary certification for
the massage therapy profession that will enable
consumers to easily identify credible Certified
Massage Therapists (CMTs) and Certified Massage
Practitioners (CMPs);
(2) Ensure that CMTs and CMPs have completed
sufficient training at approved schools; and
(3) Increase education and training standards
consistent with other states.
3.Provision in the Bill Requiring Law Enforcement to Notify the
CAMTC When Persons Certified by Each Massage School are
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Arrested for Prostitution
This bill requires law enforcement agencies to notify the CAMTC
of prostitution arrests involving persons certified by various
schools as trained in massage therapy or practice.
Specifically, the bill provides: "A law enforcement agency
shall provide to the Massage Therapy Organization, created
pursuant to Section 4600.5 of the Business and Professions Code,
information concerning the massage therapy instruction received
by the person prosecuted, including the name of the school
attended, if any."
The bill does not specify which agency shall provide information
to the "Massage Therapy Organization." This could be the
arresting agency, the Department of Justice or another agency.
Perhaps the agency best able to provide this information would
be the arresting agency. However, the arresting officers may be
unaware of the provisions of this bill.
Arguably, the particular school attended by a prostitution
defendant, or at least the school listed on a certificate or
diploma, is only marginally relevant to the facts underlying a
prostitution arrest. The elements of solicitation of an act of
prostitution are an offer to perform a sexual act and agreement
for an exchange for money or other consideration for the act.
Where an arrest occurs in the context of a massage business, the
fact that the massage provider solicited a sexual act in
exchange for money, rather than providing massage for a fee, is
the essence of the case. The fact that the defendant possesses
a massage therapy training certificate, and the name of the
school, would not likely be of particular concern, except
perhaps where law enforcement is aware that prostitution
defendants may often be associated with prostitution. That is,
in documenting an arrest to solicitation of prostitution, the
arresting officer may have no reason or occasion to determine
what school the person attended or claimed to attend.
Effective implementation of this provision will likely depend on
education of law enforcement agencies which arrest defendants
for providing sexual services under the guise of legitimate
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massage. Members may wish to consider whether this bill should
be amended to state that the arresting agency shall provide
information to CAMTC about the training, or alleged training, of
the defendant if that information is known to the agency.
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4.Suggested Amendment to Specify the CAMTC as the Entity that
Certifies and Sets Training Standards for Massage
Professionals
The bill refers to "the Massage Therapy Organization created by
Business and Professions Code Section 4600.5." The author or
members of the Committee may wish to consider amending the bill
to refer to the agency that was created in that section, the
California Massage Therapy Council. The use of a different name
for the council, a name that could be either a generic
description or the name of a specific agency, is arguably
confusing.
SHOULD THE BILL BE AMENDED TO SPECIFICALLY REFER TO THE CAMTC AS
THE AGENCY THAT CERTIFIES AND SETS STANDARDS FOR MASSAGE
PROFESSIONALS?
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