BILL ANALYSIS �
AB 1147
Page 1
( Without Reference to File )
CONCURRENCE IN SENATE AMENDMENTS
AB 1147 (Bonilla, et al.)
As Amended August 22, 2014
Majority vote
----------------------------------------------------------------------
|ASSEMBLY: |68-1 |(January 27, |SENATE: |34-0 |(August 26, 2014) |
| | |2014) | | | |
----------------------------------------------------------------------
------------------------------------------------------------------------
|COMMITTEE VOTE: |12-1 |(August 28, 2014) |RECOMMENDATION: |concur |
|(B., P. & C.P.) | | | | |
------------------------------------------------------------------------
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,
AB 1147
Page 2
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."
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;
AB 1147
Page 3
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
Department of Consumer Affairs;
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.
AB 1147
Page 4
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 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.
AB 1147
Page 5
22)Provide that a certificate issued by CAMTC is subject to renewal
every two years, and authorizes CAMTC to provide for 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
AB 1147
Page 6
a massage establishment where massage is provided for
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.
AB 1147
Page 7
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,
c) Provide notification of the suspension by email, to any
establishment or employer, whether public or private, that
AB 1147
Page 8
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.
42)Require CAMTC to determine whether the school from which an
applicant has obtained his or her education meets applicable
AB 1147
Page 9
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,
d) Performance metrics, including, but not limited to, total
application denials, discipline against certificates,
inspections of schools, and complaints, as specified.
AB 1147
Page 10
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 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
AB 1147
Page 11
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
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
AB 1147
Page 12
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 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
AB 1147
Page 13
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
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,
AB 1147
Page 14
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 (Board). 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
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
AB 1147
Page 15
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 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
AB 1147
Page 16
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 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
AB 1147
Page 17
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 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,
nonprofit 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
AB 1147
Page 18
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 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
AB 1147
Page 19
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 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
AB 1147
Page 20
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
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
AB 1147
Page 21
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 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, with a vote of 11-0, and the Assembly floor on January
27, 2014, with a vote of 68-1, this bill required an applicant
for certification as a massage practitioner to pass a massage and
AB 1147
Page 22
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)
319-3301
FN: 0005565