BILL ANALYSIS �
AB 1147
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1147 (Bonilla, et al.)
As Amended August 22, 2014
Majority vote
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|ASSEMBLY: |68-1 |(January 27, |SENATE: |34-0 |(August 26, |
| | |2014) | | |2014) |
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Original Committee Reference: B., P. & C.P.
SUMMARY : Substantially revises existing law regulating
certified massage therapy professionals, including the deletion
of the preemption of local massage-related ordinances as they
relate to land use, a two-year extension of the sunset date of
the California Massage Therapy Council (CAMTC) which regulates
certified massage therapists, reconstitution of CAMTC's board of
directors (Board), the increase of educational standards for
certified massage professionals, and the creation of new
protections for consumers of massage services.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Clarify that a city or county may not prevent an individual
licensed or otherwise authorized under the Business and
Professions Code from engaging in their regulated profession.
2)Establish the Massage Therapy Act (Act).
3)Define the terms "approved school," "certificate,"
"compensation," "Council," "massage," "massage practitioner,"
"massage therapist," as specified.
4)Define a "massage establishment" or "establishment" to mean "
a fixed location where massage is performed for compensation,
excluding those locations where massage is only provided on an
out-call basis."
5)Define a "sole provider" to mean "a massage business where the
owner owns 100% of the business, is the only person who
provides massage services for compensation for that business
pursuant to a valid and active certificate, as specified, and
has no other employees."
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6)Establish CAMTC to carry out the responsibilities and duties
of the Act, and authorize CAMTC to develop rules and bylaws in
addition to policies and procedures to carry out the duties of
the Act.
7)Authorize CAMTC to require background checks for all
employees, contractors, volunteers, and board members as a
condition of their employment, formation of a contractual
relationship, or participation in CAMTC activities.
8)Authorize CAMTC to determine whether information provided to
them in relation to certification of an applicant is true and
correct and meets the specified requirements, and if CAMTC has
any reason to question whether the information provided is
true or correct or meets the specified requirements, CAMTC may
make any investigation it deems necessary to establish that
the information received is accurate and specifies that the
applicant has the burden to prove that he or she is entitled
to certification.
9)Repeal the authority, structure and composition of CAMTC's
Board on September 15, 2015.
10)Specify that the terms of 13 new members of the Board will
begin on September 15, 2015, with new Board members, each of
whom shall serve a term of four years, being chosen in the
following manner:
a) One member shall be a representative of the League of
California Cities;
b) One member shall be a representative of the California
Police Chiefs Association;
c) One member shall be a representative of the California
State Association of Counties;
d) One member shall be a representative of an anti-human
trafficking organization, to be determined by CAMTC;
e) One member shall be appointed by the Office of the
Chancellor of the Community Colleges.
f) One public member shall be appointed by the director of
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DCA;
g) One member appointed by the California Association of
Private Postsecondary Schools;
h) One member shall be appointed by the American Massage
Therapy Association, California Chapter, who is a
California-certified massage therapist or practitioner, is
a California resident, and has been practicing massage for
at least three years;
i) One member shall be a public health official
representing a city, county or city and county health
department;
j) One member who shall be a certified massage therapist
(CMT) or a certified massage practitioner (CMP) who is a
California resident who has practiced massage for at least
three years prior to the appointment, selected by a
professional society, association, or other entity, as
specified;
aa) Three additional members appointed by the Board at a
duly held Board meeting in accordance with the Board's
bylaws, one of whom shall be an attorney who represents a
city in the state, and one of whom shall represent a
massage business entity that has been operating in the
state for at least three years, as specified.
11)Require the Board to establish fees reasonably related to the
cost of providing services and carrying out its ongoing
responsibilities and duties, as specified.
12)Provide that the fee for certification or renewal may be no
higher than $300.
13)Authorize the Board to adopt additional policies and
procedures that provide greater transparency to certificate
holders and the public than required by the Bagley-Keene Open
Meeting Act.
14)State that prior to holding a meeting to vote upon a proposal
to increase the certification fees, CAMTC shall provide at
least 90 days' notice of the meeting, as specified, and
require CAMTC to update its Internet Web site and notify all
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certificate holders and affected applicants by email within 14
days if CAMTC increases certification fees.
15)State that the protection of the public is the highest
priority for CAMTC in exercising its certification and
disciplinary authority, and any other functions, and whenever
the protection of the public is inconsistent with other
interests sought to be promoted, the protection of the public
is paramount.
16)Revise and recast the educational requirements for
certification to require all applicants to complete curricula
in massage and related subjects totaling a minimum of 500
hours from CAMTC approved schools, and specify that of those
500 hours, a minimum of 100 hours must address anatomy and
physiology, contraindications, health and hygiene, and
business ethics.
17)Require all applicants for certification to take and pass a
massage and bodywork competency assessment and examination, as
specified.
18)Require an applicant for certification to successfully pass a
background investigation, as specified, and pay the required
fees.
19)Permit CAMTC to issue a certificate to an applicant who meets
specified qualifications, if the applicant holds a valid
registration, certification, or license from any other state
whose licensure requirements meet or exceed those established
by the Act, as specified.
20)Require a certificate holder to surrender his or her
certificate and any identification card issued by CAMTC if his
or her certificate is suspended or revoked by CAMTC.
21)Prohibit CAMTC from accepting applications to practice as a
CMP on or after January 1, 2015, clarifies that applications
accepted prior to January 1, 2015, to practice as a CMP may be
renewed without any additional educational requirements, and
permits a person who was issued a conditional certificate to
practice as a massage practitioner, as specified.
22)Provide that a certificate issued by CAMTC is subject to
renewal every two years, and authorizes CAMTC to provide for
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the late renewal of a certificate or registration.
23)Require CAMTC, prior to issuing a certificate to an applicant
or designating a custodian of records, to require the
applicant or custodian of records to submit fingerprint
images, as specified.
24)Establish the process for obtaining the record of state and
federal level convictions and of state and federal level
arrests, as specified.
25)Permit CAMTC to receive arrest notifications and other
background material about applicants and certificate holders
from a city, county, or city and county.
26)Specify that CAMTC may discipline an owner or operator of a
massage business or establishment who is certified by CAMTC
for the conduct of all individuals providing massage for
compensation on the business premises.
27)Require a certificate holder to:
a) Display his or her original certificate wherever he or
she provides massage for compensation and have his or her
identification card in his or her possession while
providing massage for compensation;
b) Provide his or her full name and certificate number upon
request at the location where he or she is providing
massage for compensation;
c) Include the name under which he or she is certified and
his or her certificate number in any and all advertising of
massage for compensation; and,
d) Notify CAMTC of his or her primary email address, if
any, and notify CAMTC within 30 days of a change of the
primary email address, except as specified.
28)Expand the definition of unprofessional conduct to include:
a) Engaging in sexually suggestive advertising;
b) Engaging in any form of sexual activity on the premises
of a massage establishment where massage is provided for
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compensation, excluding a residence;
c) Engaging in sexual activity while providing massage
services for compensation;
d) Practicing massage on a suspended certificate or
practicing outside of the conditions of a restricted
certificate;
e) Providing massage of the genitals or anal region;
f) Providing massage of female breasts without the written
consent of the person receiving the massage and a referral
from a licensed California health care provider;
g) Procuring or attempting to procure a certificate by
fraud, misrepresentation, or mistake;
h) Failing to fully disclose all information requested on
the application; and,
i) Dressing while engaged in the practice of massage for
compensation, or while visible to clients, in a massage
establishment in any of the following:
i) Attire that is transparent or see-through, or that
substantially exposes the certificate holder's
undergarments;
ii) Swim attire, if not providing a water-based massage
modality approved by CAMTC;
iii) In a manner that exposes the certificate holder's
breasts, buttocks, or genitals;
iv) In a manner that constitutes a violation of the
Penal Code, as specified; or,
v) In a manner that is otherwise deemed by CAMTC to
constitute unprofessional attire based on the custom and
practice of the profession in California.
29)Permit CAMTC to deny an application for a certificate for the
commission of any specified criminal acts.
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30)Enhance CAMTC's authority to discipline a certificate holder
to include the imposition of probation, which may include
limitations or conditions on practice.
31)Require CAMTC to deny an application for a certificate, or
revoke the certificate of a certificate holder, if the
individual is required to register as a sex offender, as
specified.
32)State that any denial or discipline must be decided upon and
imposed in good faith and in a fair and reasonable manner, and
that any procedure that conforms to specified requirements is
fair and reasonable, but a court may also find other
procedures to be fair and reasonable.
33)Specify that a procedure is fair and reasonable if specified
procedures are followed or if all of the following apply:
a) Denial or discipline is based on a preponderance of the
evidence;
b) The provisions of the procedure are publically available
on CAMTC's Internet Web site;
c) CAMTC provides 15 calendar days prior notice of the
denial or discipline and the reasons for the denial or
discipline; and,
d) CAMTC provides an opportunity for the applicant or
certificate holder to be heard, orally or in writing, as
specified.
34)Require CAMTC, upon receiving notice that a certificate
holder has been arrested and charges have been filed, to:
a) Notify the certificate holder, at the address last filed
with CAMTC, that the certificate has been suspended and the
reason for the suspension within 10 business days;
b) Provide notification of the suspension by email to the
clerk or other designated contact of the city, county or
city and county in which the certificate holder lives or
works, pursuant to CAMTC's records within 10 business days;
and,
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c) Provide notification of the suspension by email, to any
establishment or employer, whether public or private, that
CAMTC has in its records as employing the certificate
holder, within 10 business days.
35)Permit an applicant or certificate holder to challenge a
denial or discipline decision, as specified.
36)Provide the procedures and process for CAMTC to immediately
suspend the certificate of a certificate holder, if CAMTC
determines that a certificate holder committed any act
punishable as a sexually related crime or a felony that is
substantially related to the qualifications, functions or
duties of a certificate holder, as specified.
37)Prohibit a city, county, or city and country from enacting an
ordinance that conflicts with the provisions of this Act or
specified provisions of the Government Code.
38)Clarify that nothing shall prevent a city, county, or city
and county from licensing, regulating, prohibiting, or issuing
a permit to an individual who provides massage for
compensation without a valid certificate.
39)Require CAMTC, upon the request of any law enforcement agency
or any other representative of a local government agency with
responsibility for regulating or administering a local
ordinance relating to massage, to provide information
concerning an applicant or certificate holder, as specified.
40)Require CAMTC to accept information provided by any law
enforcement agency or any other representative of a local
government agency with responsibility for regulating or
administering a local ordinance relating to massage and review
that information in a timely manner, and clarifies that CAMTC
has the responsibility to take any actions that are authorized
or warranted, as specified.
41)State that upon request of CAMTC, any law enforcement agency
or any other representative of a local government agency with
responsibility for regulating or administering a local
ordinance relating to massage or massage establishments is
authorized to provide information to CAMTC concerning an
applicant or certificate holder, as specified.
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42)Require CAMTC to determine whether the school from which an
applicant has obtained his or her education meets applicable
requirements, as specified, and require CAMTC to investigate
the facts prior to issuing a certificate, including oral
interviews or any other investigation deemed necessary to
receive factual information, as specified.
43)Require CAMTC to develop policies, procedures, rules or
bylaws governing the requirement and process for the approval
and unapproval of schools including any corrective action
required to return a school to approved status, as specified.
44)Authorize CAMTC to approve and unapprove schools and specify
corrective action in keeping with the purposes of protecting
the public, as specified.
45)Authorize CAMTC to charge a reasonable fee for the inspection
or approval of schools, provided the fees do not exceed the
reasonable cost of the inspection or approval process.
46)Provide that CAMTC may only be sued in the county of its
principal office, which is Sacramento, unless otherwise
designated by CAMTC.
47)State that the superior court of a county or competent
jurisdiction may, upon petition by any person, issue an
injunction or any other relief the court deems appropriate for
a violation, as specified.
48)State that the provisions of this chapter are severable.
49)Require CAMTC, on or before June 1, 2016, to provide a report
to the Legislature for the time period beginning January 1,
2015, that addresses all of the following topics:
a) A feasibility study of licensure for the massage
profession, including a proposed scope of practice,
legitimate techniques of massage, and related statutory
recommendations;
b) CAMTC's compensation guidelines and current salary
levels;
c) The status of CAMTC's progress towards revising the
school approval process; and,
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d) Performance metrics, including, but not limited to,
total application denials, discipline against certificates,
inspections of schools, and complaints, as specified.
50)Extend the sunset date of CAMTC by two years, until January
1, 2017, and subject CAMTC to review by the appropriate policy
committees of the Legislature.
51)Prohibit a city, county, or city and county from doing any of
the following:
a) Defining a massage establishment as an adult
entertainment business, or otherwise regulating a massage
establishment as adult entertainment;
b) 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;
c) Imposing client draping requirements that extend beyond
the covering of genitalia and female breasts, or otherwise
require that the client wear special clothing;
d) Prohibiting a massage establishment from locking its
external doors when there is only one individual working on
the premise as specified;
e) Require a massage establishment to post any notice in an
area that may be viewed by clients that contains explicit
language describing sexual acts, mentions genitalia, or
contraception devices;
f) Impose a requirement that a certificate holder take or
pass any test, medical examination or background check, or
comply with educational requirements beyond what is
required;
g) Impose a dress code requirement in excess of that
already required of certificate holders;
h) Impose a requirement that an individual holding a
certificate issued in accordance with the Act obtain any
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other license, permit, certificate, or other authorization
to provide massage for compensation; provided, however,
that a city, county, or city and county is not prohibited
from requiring by ordinance that a massage business or
establishment obtain a license, permit, certificate or
authorization in order to operate lawfully within a
jurisdiction; and,
i) Prohibit an individual holding a certificate from
performing massage for compensation on the gluteal muscles,
prohibit specific massage techniques, recognized by CAMTC
as legitimate, or impose any other restriction on the
practice of massage beyond what is specified under the
provisions of the Act.
52)State that is the intent of the Legislature that land use
authority be returned to local governments while professional
regulation remains the province of CAMTC and the state, and
that fees and regulations imposed by local governments on
massage businesses and establishments be necessary and
reasonable.
53)State that the Legislature finds and declares that the
regulation of the profession of massage therapy is a matter of
statewide concern and not a municipal affair, and that this
Act applies to all cities, counties, and cities and counties,
including charter cities and charter counties.
54)Make numerous other technical and clarifying changes to the
Act.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)Purpose of the bill. This bill substantially revises the
existing massage therapy law, incorporating changes which were
recommended as a result of the 2014 sunset review process.
This bill would revise, recast, and update multiple provisions
of current law to give local governments greater authority to
regulate massage establishments and businesses while creating
a more robust statewide regulatory system for massage
professionals. Among its major provisions, this bill would
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return land use authority over massage establishments and
businesses to cities and counties; reconstitute CAMTC's
governing Board and enhance its disciplinary authority; raise
professional standards for massage professionals; and create
new consumer-oriented protections for individuals seeking
massage services. This bill is intended to address the
concerns raised by local governments battling illegal
businesses engaged in prostitution and human trafficking while
protecting the legitimate massage therapy profession. This
bill is author-sponsored.
2)Authors' statement. According to Assembly Member Bonilla, "in
an effort to enhance consumer protection and local control,
this bill makes major changes to the current regulatory system
for massage therapy. AB 1147 will restore the ability of
cities to better control massage establishments while raising
certification standards and creating a stronger regulatory
system for massage professionals. It will also reconstitute
the Board of the California Massage Therapy Counsel to make it
more inclusive by incorporating a broader range of
stakeholders who care about the massage industry in
California, including a city attorney and a member of an
anti-human trafficking organization. It also clarifies the
rights of the profession, and sets out certain protections for
consumers of massage.
"Unfortunately, the current massage therapy law (SB 731
(Oropeza), Chapter 384, Statutes of 2008) had serious
unintended consequences; with bad actors masquerading as
legitimate massage professionals exploiting loopholes in
current law to insulate themselves against the ability of
local governments and law enforcement to shut them down. This
bill will give that power back to the cities and counties,
which will go a long way towards eliminating the brothel
owners and human traffickers who are hurting women, hurting
neighborhoods, hurting the profession, and hurting
California."
Assembly Member Gomez writes, "it's time we take back control
of our neighborhoods with this reform measure. Legitimate
massage therapists have a role in our communities. But the
current law has allowed criminal elements to hide behind the
law and disrupt our communities. The most critical piece of
the reform measure is that the bill will return land use
authority to cities and counties. The broad pre-emption of
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local land use authority for 'certified-only' massage
professionals has been removed, returning local land use
control back to the cities and counties. Now our communities
will once again have a voice in the process."
Assembly Member Holden writes, "this bill frees cities and law
enforcement to do what they do best: guard the best interests
of its citizens and resident businesses and protect their
community from criminals. This bill allows good massage
therapists to be recognized and bad actors to be put out of
business. AB 1147 removes the most detrimental parts of the
law and ensures that control over planning of our communities
is handed back to the people, not business owners with bad
intentions."
3)The profession of massage therapy. Massage professionals
treat clients by using touch to manipulate the soft-tissue and
muscles of the body. Massage therapy is a healing art used to
relieve pain, rehabilitate injuries, reduce stress, increase
relaxation, and increase the general wellness of clients.
Massage professionals work in a variety of settings, including
private offices, spas, hospitals, fitness centers and shopping
malls. According to the Bureau of Labor Statistics,
employment of massage professionals is projected to grow 23%
from 2012 to 2022, much faster than the average for all
occupations.
Titles commonly used in California by the massage profession
may include: massage therapist, massage practitioner, CMT,
CMP, massage technician, bodyworker, masseur, and masseuse.
Current law makes it an unfair business practice for anyone
not certified by CAMTC to use the title of CMP or CMT.
4)Regulation of massage therapy. SB 731 established a system
for the voluntary statewide certification of massage
professionals by a Massage Therapy Organization, which was
renamed CAMTC in 2011. The goal of establishing what would
become CAMTC was to standardize the process for certification
throughout the state. Certification allows massage
professionals to work in multiple California locations without
the need for duplicative local certifications. CAMTC is led
by a volunteer Board comprised of professionals from
California's massage community, including massage
associations, schools, and businesses. CAMTC's authority in
statute is set to expire on January 1, 2015, unless that
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authority is extended by legislative action.
Currently, massage professionals in California can obtain one
of two certification levels: CMPs are required to complete at
least 250 hours of education and training, while CMTs are
required to complete at least 500 hours of massage education
and training or complete 250 hours of education and training
and pass an examination. CMPs and CMTs must also undergo
background checks, including fingerprinting and other
identification verification procedures. The CMP and CMT
certificates are renewed biannually, and certificate holders
are not required to obtain continuing education. Of the 250
hours of educational requirements for CMPs, 100 hours must be
in the instruction of anatomy, physiology, contraindications,
health and hygiene, and business ethics. The current law
permitting the certification of CMPs is scheduled to be
repealed on December 31, 2015. CAMTC regulates over 45,000
CMPs and CMTs in California.
5)CAMTC's Board of Directors. The current Board is largely
comprised of professionals from California's massage
community, including massage associations, schools, and
businesses. CAMTC's bylaws provide for a total of 20 members,
although it has only 19 members at the moment. In addition to
the power to issue certificates, CAMTC also has the authority
to discipline certificate holders and unapprove massage
schools.
a) Discipline. If a certificate holder violates the terms
of certification, CAMTC may suspend or revoke his or her
certification, but it cannot exercise cite and fine
authority. CAMTC may deny, revoke or impose probationary
conditions on the certification of a CMP or CMT for a
variety of reasons, including failure to obtain a clear
fingerprint check, reports of unprofessional conduct in
another state, any attempt to obtain a certificate through
misrepresentation or fraud, or committing any act
punishable as a sexually-related crime. All of the
relative disciplinary procedures are carried out by CAMTC's
Division of Professional Standards. According to CAMTC,
there have been approximately 248 certificate suspensions
or revocations since 2010.
b) Schools. While CAMTC does not accredit or affirmatively
approve massage schools, it does have the responsibility to
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determine if the curriculum of a school meets the legal
requirements for applicants to obtain CAMTC certification.
In practice, this means that schools are generally treated
as approved unless and until CAMTC takes action to
"unapproved" them. Schools must meet certain requirements
such as be nationally accredited, approved by the
California Bureau for Private Postsecondary Education
(BPPE), be a public institution, or a California community
college in order to be approved for CAMTC's purposes.
6)Oversight hearings and sunset review. In March and April of
2014, the Assembly Business, Professions and Consumer
Protection (BPCP) Committee and the Senate Business,
Professions and Economic Development (BPED) Committee
conducted joint oversight hearings to review nine regulatory
entities, including CAMTC. The BPCP and BPED Committees began
their review of these entities over three days of public
hearings in March. This bill, like other sunset bills, is
intended to implement the legislative changes recommended in
the background reports authored by the Senate BPED and
Assembly BPCP Committees.
7)Issues raised during CAMTC's sunset review. This was the
first sunset review for CAMTC, 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. This bill
represents an effort to address concerns raised by the BPCP
and BPED Committees, massage professionals, local governments,
and other interested parties. The major provisions of this
bill reflect those issues raised during the sunset review
process, of which many are noted in the BPCP sunset review
report.
a) Limitations on fees. Under current law, the Board is
permitted to establish fees reasonably related to the cost
of providing services and carrying out its ongoing duties
and responsibilities, including fees for certification and
recertification. Currently, the Board is required, under
its bylaws, to assess the certification and recertification
fees annually. Although the certification and
recertification fees have not been raised since the
inception of CAMTC, the BPCP Committee recommended capping
the fees in statute to ensure greater certainty for massage
professionals in the future. The fee cap established in
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this bill will allow the Board to raise fees up to $300, if
an annual assessment by the Board determines an increase of
the fees, as authorized by CAMTC's bylaws, is warranted.
Additional prior notice provisions for fee increases were
incorporated as well.
b) Certification tiers. The legislation that authorized
CAMTC also created the two-tier certification system (CMT
and CMP) in order to provide a pathway to certification for
many massage professionals who had been practicing in
California prior to a statewide voluntary certification
program. In order to raise the standards of the profession
as a whole in California, the BPCP sunset report
recommended the elimination of the lower certification
tier, the CMP.
This bill will sunset the existing CMP certification tier for
new applicants, beginning January 1, 2015, instead of
December 31, 2015, under current law, and will require all
applicants for CMT certification to obtain the required 500
hours of education from an approved school and pass an
examination.
This bill would also revise the educational requirements
for the CMT certification by requiring applicants to
complete all of the 500 hours of required education from a
school approved by CAMTC, and specifies that 100 of the 500
hours required for certification must be in the subjects of
anatomy, physiology, contraindications, health and hygiene,
and business ethics.
c) Certification revocation, suspension or denial.
According to CAMTC's procedures for discipline, revocation,
or denial, a certificate may be denied or revoked for a
wide variety of reasons reasonably related to protecting
public safety, including failure to meet statutory
requirements, violations of law, and certain dishonest
acts.
In order to increase public confidence that CAMTC
certificate holders are operating appropriately, this bill
expands the definition of unprofessional conduct to
prohibit certain behaviors and practices of concern to
local governments. Those new standards include engaging in
sexually suggestive advertising, engaging in any form of
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sexual activity on the premises of a massage establishment,
or practicing massage on a suspended certificate or outside
the of the conditions on a restricted certificate. These
additions will improve CAMTC's ability to discipline
certificate holders who engage in inappropriate or
unprofessional behavior while providing massage services.
d) School approval. The 2014 sunset review report raised
the issue of CAMTC's current "reactive" school approval
process. According to CAMTC, it currently does not
proactively approve schools, but rather "unapproves" a
school if it finds that a school does not meet the minimum
standards for training and curriculum or operates
inappropriately. Schools may be unapproved for selling or
offering to sell transcripts, failing to require students
to attend the classes listed on the transcript, failure to
require students to attend all of the hours listed on the
transcript, or engaging in fraudulent practices.
While CAMTC may unapprove a school for a number of reasons,
the most common reason is transcript discrepancies, meaning
the transcript does not accurately reflect the education
actually received by the applicant. In November of 2013,
CAMTC reported that it had unapproved approximately 46
schools and placed seven on its "inadequate education
list," which means that applicants who have taken courses
at those schools must submit additional proof of education
beyond a transcript and diploma.
The sunset review report recommended that CAMTC take
proactive steps to improve their current complaint-driven
unapproval process, and instead find a more proactive-based
approval process. In response, this bill authorizes CAMTC
to take an affirmative role in establishing an approval
process for schools by requiring that CAMTC develop
policies, procedures, rules or bylaws governing the
requirements and process for the approval and unapproval of
schools, including any corrective action to return a school
to approved status. This bill also provides CAMTC with
explicit authority to establish a reasonable fee for the
inspection or approval of schools.
e) Board composition. CAMTC is led by a volunteer Board
primarily comprised of professionals from across
California's massage community, including massage
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associations, schools, and businesses. CAMTC currently has
19 members with one vacancy.
In order to make the Board more responsive based on feedback
from stakeholders, the BPCP sunset review report
recommended that the number of board members be reduced to
15 or less, that local government or local law enforcement
representation be increased, and a California residency
requirement be imposed. This bill reconstitutes CAMTC's
Board to reduce the total number of authorized board
members from 20 to 13, increases the diversity of the Board
by making the seats available to a broader array of
stakeholders, including public health and anti-human
trafficking advocates, and requires all appointees to be
residents of California.
f) Increased accountability of CAMTC. As a voluntary,
non-profit organization CAMTC has discretion in many of its
administrative practices and procedures. While this
structure is in place to provide the organization with the
flexibility it needs to fulfill its statutory mission while
operating as an independent non-profit entity, the BPCP
sunset review report highlighted a number of areas where
administrative accountability can be improved, including
obtaining additional customer service information from
stakeholders, providing better enforcement data, enhancing
communication with local governments and law enforcement
representatives, and sharing salary data, contract awards
and hiring standards.
To that end, this bill mandates expanded data sharing with
law enforcement and local governments, and requires CAMTC
to provide specified reports on the above-mentioned topics
to the appropriate policy committees of the Legislature
beginning January 1, 2016.
g) Local control. SB 731 was originally intended to
provide uniform standards for the education, training and
background investigations for massage practitioners to help
professionalize the massage industry in California.
Moreover, it also attempted to create a brighter
distinction between legitimate massage professionals and
the illegal sex trade by creating a reliable certification
system for professionals and eliminating discriminatory
business regulations on legitimate healing arts
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professionals. As many of the professionals involved in
massage therapy are sole practitioners who work from their
home, travel to a client's home or contract to work at spas
in various cities and counties, the concept of a statewide
certification program was designed to help alleviate the
need for duplicative certification standards which varied
from city to city. From a consumer protection perspective,
a voluntary statewide certification meant that a "certified
professional" has meet educational, training and background
standards sufficient to give consumers some reassurance
that the massage professional providing services was
properly educated, trained and obtained the appropriate
background clearance.
Because the legitimate massage profession in California had
often been unfairly linked to illegal practices,
particularly prostitution and human trafficking, some
cities and counties established massage ordinances that
appeared to presume that massage professionals and clients
may be engaging in prostitution, which led to a host of
problems for real massage therapists, many of whom operate
part-time or as sole practitioners.
For example, the Riverside Municipal Code requires massage
professionals to wear special attire in an attempt to
dissuade potential prostitution, but also marking the
profession as 'suspect. The Temecula Municipal Code
requires massage establishments to post a notice to patrons
that "massage rooms do not provide complete privacy and are
subject to inspection by the Temecula Police Department
without prior notice," which is off-putting to some
clients. As another example, the Westminster Municipal
Code requires massage technician applicants to complete a
medical examination that tests for the HIV Virus, Syphilis,
Gonorrhea, Tuberculosis, and Hepatitis 30 days prior to
submitting an application as a massage technician - tests
which are required of no other healing arts professional
and imply a likelihood of engaging in prostitution.
This bill attempts to balance local governments' real need
to regulate businesses throughout their jurisdictions with
the need to protect certificated massage professionals by
giving local governments back their land use authority to
regulate massage establishments and businesses while
imposing narrowly-tailored protections to ensure that the
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profession will continue to be regulated consistently
across the state.
h) Practice protection for massage professionals. Because
massage as a profession is not formally licensed by the
state, a voluntary certification was designed as a
mechanism to create uniform education and practice
standards as opposed to multiple, duplicative local
ordinances which vary in the requirements needed to
practice massage. The voluntary certification allows
massage professionals to work in multiple jurisdictions
without a need to obtain multiple costly city licenses to
practice.
However, as some local governments may have ordinances now or
in the future that could impinge on the practice rights of
certified massage professionals; this bill enumerates a
number of new protections for certificated individuals.
Local governments will not be permitted to impose a
requirement that certified massage professionals be
required to take any test, medical examination, or
background check, or otherwise comply with any additional
educational requirements beyond what is already required.
Nor may a city or county impose a requirement that
certified massage professionals obtain any other license,
permit, certificate or authorization to provide massage for
compensation, excluding those normally required to operate
a business. This bill also prohibits the imposition of a
dress code requirement in excess of what is already
considered unprofessional conduct by CAMTC, and protects
certified massage professionals from interference in their
performance of legitimate massage techniques approved by
CAMTC.
i) Continuation of CAMTC and a voluntary certification
program. The 2014 sunset review report found overall that
the health, safety and welfare of consumers is protected
through the voluntary certification of massage
professionals, which ensures greater consistency and
quality amongst professionals while giving local
governments the tools to more easily identify trustworthy
practitioners. The current regulatory system operated by
CAMTC combines education, training, and background
standards into a systematic formal review process whereby
only those individuals who have met the standards can
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represent themselves as massage professionals.
However, the BPCP sunset review report also found that
CAMTC faces many challenges in fulfilling its mission:
there is a need for greater oversight of educational
institutions; a need for stronger administrative controls;
questions regarding proper board composition; and a strong
desire from local governments to regain their land use
authority over establishments using certified
professionals.
If CAMTC were to be allowed to sunset, consumers would lose
any hope of making useful distinctions in quality between
massage practitioners, practitioners would be again subject
to a patchwork of licensing regimes, and local governments
would be forced to develop expensive new regulatory
processes from scratch.
In response, this bill provides for only two-year extension
of CAMTC's sunset date, which will maintain a voluntary
certification process for massage professionals while
simultaneously giving back to local governments the proper
authority they need to regulate massage businesses and
establishments. CAMTC will need to be proactive in
addressing these underlying issues in order to fulfill its
mandate and earn the trust of its many stakeholders before
its next sunset review in 2016. In order to provide more
guidance in that endeavor, this bill also clarifies CAMTC's
mission by specifying that the highest priority for CAMTC
is the protection of the public, and whenever other
interests of CAMTC conflict, the protection of the public
shall be the prevailing priority
8)Practice rights for licensed, permitted or certificated
professions. Under current law, a city or county is generally
restricted from prohibiting a person or group of persons
authorized by DCA via a license, certificate or other such
means to engage in a particular profession, from engaging in
that occupation, while allowing a city or county to adopt or
enforce any local ordinance governing zoning, business
licensing, or reasonable health and safety requirements. This
bill would put CAMTC and its certificate holders under that
protection as well, while clarifying that local jurisdictions
have full authority to adopt local ordinances governing the
zoning, business licensing, and reasonable health and safety
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requirements of the individual communities. In this way,
regulation of the profession and the individuals practicing it
remains the sole purview of the state and CAMTC, but land use
decision-making over massage establishments and businesses
returns to the local governments themselves.
9)Prohibitions. In an effort to standardize massage industry
practices while providing local jurisdictions with the ability
to properly regulate massage businesses and establishments,
this bill establishes a small number of narrow prohibitions on
local regulations that would be discriminatory against
individual professionals and massage businesses and
establishments. It also enacts changes protective of the
massage consumer as well.
Those protections would prohibit local jurisdictions from
enacting ordinances which: require massage businesses or
establishments to be zoned as adult entertainment; require an
establishment or business to have windows or short walls that
interfere with a consumers expectation of privacy; impose
unnecessary draping or covering requirements on consumers;
require a business with one employee from locking its door,
thereby jeopardizing employee and customer safety; or posting
any signs or any notice in a business that may be viewed by
clients that contains graphic language describing sexual acts,
genitalia, or contraceptives. This bill also explicitly
prohibits the imposition of medical testing, duplicative
education standards and examinations, and dress code
requirements on individuals who are CAMTC certified.
10)Previous version. As passed by the BPCP Committee on January
21, 2014, (11-0), and the Assembly floor on January 27, 2014,
(68-1), this bill required an applicant for certification as a
massage practitioner to pass a massage and bodywork competency
examination that meets specified standards and is approved by
CAMTC.
However, most of the provisions of this bill were completed and
amended into this bill while in the Senate, and the provisions
regarding the massage examination provision were deleted. As
a result, the language of this bill in its current form has
not yet been heard in an Assembly Policy Committee.
Analysis Prepared by : Elissa Silva / B., P. & C.P. / (916)
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319-3301
FN: 0005520