Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1747

Introduced by Assembly Member Holden

February 14, 2014

An act begin insert to amend Sections 4600.5, 4602, and 4612 of, and to add Section 4601.1 to, the Business and Professions Code, and to amend Sections 51030 and 51032 of, and to add Section 51032.3 to, the Government Code, end insert relating to begin delete human trafficking end delete begin insert massage therapy end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 1747, as amended, Holden. begin delete Human trafficking. end delete begin insert Massage therapy. end insert

begin insert

(1) Existing law, until January 1, 2015, creates the California Massage Therapy Council and provides for the voluntary certification of massage practitioners and massage therapists by the council. Existing law specifies the requirements for the council to issue to an applicant a certificate as a massage practitioner or massage therapist, including completion of a curricula in massage and related subjects at an approved school. Existing law requires the council to immediately suspend, on an interim basis, the certificate of a certificate holder, if the council receives notice that the certificate holder has been arrested for and charged with, specified crimes, including soliciting or engaging in an act of prostitution or an act punishable as a sexually related crime.

end insert begin insert

This bill would make the records of the council open to public inspection pursuant to the California Public Records Act. The bill would require an approved or registered school to notify its students if the council has removed council approval of the school. The bill would also require the council to notify the city, county, or city and county where a certificate holder is operating when the council has revoked a massage certificate.

end insert begin insert

(2) Existing law authorizes a city, county, or city and county to charge a massage business or establishment a business licensing fee that is no higher than the lowest fee that is applied to other individuals and businesses providing professional services, as defined. Existing law prohibits a local building code or physical facility requirements applicable to a massage business or establishment from requiring an unlocked door when there is no staff available to ensure security of clients and massage staff who are behind closed doors. Existing law makes an owner or operator of a massage business or establishment who is a certificate holder responsible for the conduct of all employees or independent contractors working on the business premises.

end insert begin insert

This bill would, instead, authorize a city, county, or city and county to charge a massage business or establishment a business licensing fee that is no higher than the average fee that is applied to other individuals and businesses providing professional services. The bill would delete the prohibition against an ordinance requiring an unlocked door as described above. The bill would require an owner or operator to be responsible, as described above, regardless of whether the owner or operator is a certificate holder.

end insert begin insert

(3) Existing law authorizes a city, county, or city and county to enact an ordinance that provides for the licensing and regulation of the business of massage.

end insert begin insert

This bill would expressly authorize the ordinance to prohibit an individual or entity from operating a massage business without a valid massage business license, as defined, to require that, during a massage business’ operating hours, a certificate holder be present, the massage business display a list of its employees and independent contractors certificate holders, and that each employee or independent contractor present his or her state-issued identification card or United States passport to a law enforcement officer upon request. The bill would also expressly authorize the ordinance to require a massage business to provide the list of certificate holders to the enacting body, and to prohibit sexual conduct at a massage business’ premises. The bill would require the legislative body to transmit a copy of the ordinance to the council.

end insert begin insert

(4) Existing law authorizes a licensing body to deny a license if there is proof that the massage personnel, owners, and operators have been convicted of specified crimes, including soliciting or engaging in an act of prostitution.

end insert begin insert

This bill would authorize a licensing body to deny a local massage business license if the council or licensing body of another jurisdiction has revoked the applicant’s massage certificate or massage business license, respectively, the council has disciplined the applicant for unprofessional conduct or other specified acts, or the massage business is located where a previous massage business was located and the massage business license of that previous massage business was revoked.

end insert begin insert

This bill would authorize a local licensing body to suspend a massage business license if the owner, operator, or an employee of a massage business is arrested for specified crimes, including soliciting or engaging in an act of prostitution, for a period up to and including any administrative and judicial hearing regarding the violation, and would require the licensing body to reinstate the massage business license within 60 days of a decision finding the person not guilty of the alleged violation.

end insert begin insert

This bill would authorize a licensing body to revoke a local massage business license if the council or licensing body of another jurisdiction has revoked the owner’s or operator’s massage certificate or massage business license, respectively, or the council has disciplined the owner or operator for unprofessional conduct or other specified acts.

end insert begin delete

Existing law provides that any person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services or to effect or maintain a felony violation of offenses relating to prostitution, child pornography, as specified, or extortion, as defined, is guilty of human trafficking. Existing law also provides that a person who solicits or agrees to engage in or engages in any act of prostitution is guilty of disorderly conduct, a misdemeanor.

end delete begin delete

This bill would state the intent of the Legislature to enact legislation to prevent human trafficking and prostitution in massage therapy establishments.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 4600.5 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

4600.5.  

(a) The California Massage Therapy Council, as
defined in subdivision (e) of Section 4600, begin delete shall be created and
shall have end delete begin insert is hereby established with end insert the responsibilities and duties
set forth in this chapter. The council may take any reasonable
actions to carry out the responsibilities and duties set forth in this
chapter, including, but not limited to, hiring staff and entering into
contracts.

(b) (1) The council begin delete shall be end delete begin insert is end insert governed by a board of directors
made up of two representatives selected by each professional
society, association, or other entity, whose membership is
comprised of massage therapists and that chooses to participate in
the council. To qualify, a professional society, association, or other
entity shall have a dues-paying membership in California of at
least 1,000 individuals for the last three years, and shall have
bylaws that require its members to comply with a code of ethics.
The board of directors shall also include each of the following
persons:

(A) One member selected by each statewide association of
private postsecondary schools incorporated on or before January
1, 2010, whose member schools have together had at least 1,000
graduates in each of the previous three years from massage therapy
programs meeting the approval standards set forth in subdivision
(a) of Section 4600, except from those qualifying associations that
choose not to exercise this right of selection.

(B) One member selected by the League of California Cities,
unless that entity chooses not to exercise this right of selection.

(C) One member selected by the California State Association
of Counties, unless that entity chooses not to exercise this right of
selection.

(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.

(E) One member appointed by the Office of the Chancellor of
the California Community Colleges, unless that entity chooses not
to exercise this right of selection. The person appointed, if any,
shall not be part of any massage therapy certificate or degree
program.

The council’s bylaws shall establish a process for appointing
other professional directors as determined by the board.

(2) The initial board of directors shall establish the council,
initiate the request for tax-exempt status from the Internal Revenue
Service, and solicit input from the massage community concerning
the operations of the council. The initial board of directors, in its
discretion, may immediately undertake to issue the certificates
authorized by this chapter after adopting the necessary bylaws or
other rules, or may establish by adoption of bylaws the permanent
governing structure prior to issuing certificates.

(c) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.

(d) The meetings of the council begin delete shall be end delete begin insert are end insert subject to begin delete the rules
of end delete the Bagley-Keene Open Meeting Act (Article 9 (commencing
with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title
2 of the Government Code).

begin insert

(e) The records of the council shall be open to public inspection
pursuant to the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).

end insert begin insert

(f) It is part of the mission of the council to act as a repository
of information for local governments to utilize when issuing permits
and taking enforcement action authorized by law.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 4601.1 is added to the end insert begin insert Business and Professions
Code end insert begin insert , to read: end insert

begin insert

begin insert 4601.1. end insert   

An approved or registered school shall notify its
students if the council has removed council approval of the school.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 4602 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

4602.  

(a) The council may discipline a certificate holder by
any, or a combination, of the following methods:

(1) Placing the certificate holder on probation.

(2) Suspending the certificate and the rights conferred by this
chapter on a certificate holder for a period not to exceed one year.

(3) Revoking the certificate.

(4) Suspending or staying the disciplinary order, or portions of
it, with or without conditions.

(5) Taking other action as the council, as authorized by this
chapter or its bylaws, deems proper.

(b) The council may issue an initial certificate on probation,
with specific terms and conditions, to any applicant.

(c) (1) Notwithstanding any other provision of law, if the
council receives notice that a certificate holder has been arrested
and charges have been filed by the appropriate prosecuting agency
against the certificate holder alleging a violation of subdivision
(b) of Section 647 of the Penal Code or any other offense described
in subdivision (h) of Section 4603, the council shall take all of the
following actions:

(A) Immediately suspend, on an interim basis, the certificate of
that certificate holder.

(B) Notify the certificate holder within 10 business days at the
address last filed with the council that the certificate has been
suspended, and the reason for the suspension.

(C) Notify any business within 10 business days that the council
has in its records as employing the certificate holder that the
certificate has been suspended.

(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the suspended
certificate shall become subject to permanent revocation. The
council shall provide notice to the certificate holder within 10
business days that it has evidence of a valid record of conviction
and that the certificate will be revoked unless the certificate holder
provides evidence within 15 days that the conviction is either
invalid or that the information is otherwise erroneous.

(3) Upon notice that the charges have resulted in an acquittal,
or have otherwise been dismissed prior to conviction, the certificate
shall be immediately reinstated and the certificate holder and any
business that received notice pursuant to subparagraph (C) of
paragraph (1) shall be notified of the reinstatement within 10
business days.

(d) Notwithstanding any other provision of law, if the council
receives clear and convincing evidence that a certificate holder
has committed an act punishable as a sexually related crime or a
felony that is substantially related to the qualifications, functions,
or duties of a certificate holder, the council may immediately
suspend the certificate of that certificate holder. A decision to
immediately suspend a certificate pursuant to this subdivision shall
be based on clear and convincing evidence and the council shall
also consider any available credible mitigating evidence before
making a decision to suspend a certificate. Written statements by
any person shall not be considered by the council when determining
whether to immediately suspend a certificate unless made under
penalty of perjury. If the council suspends the certificate of a
certificate holder in accordance with this subdivision, the council
shall take all of the following additional actions:

(1) Notify the certificate holder, at the address last filed with
the council, within 10 business days by a method providing
delivery confirmation, that the certificate has been suspended, the
reason for the suspension, and that the certificate holder has the
right to request a hearing pursuant to paragraph (3).

(2) Notify by electronic mail or any other means consistent with
the notice requirements of this chapter, within 10 business days,
any business that the council has in its records as employing or
contracting with the certificate holder for massage services, and
the California city or county permitting authority that has
jurisdiction over any business that the council has in its records as
employing or contracting with the certificate holder, that the
certificate has been suspended.

(3) A certificate holder whose certificate is suspended pursuant
to this subdivision shall have the right to request, in writing, a
hearing to challenge the factual basis for the suspension. If the
holder of the suspended certificate requests a hearing on the
suspension, the hearing shall be held within 30 days after receipt
of the request. A holder whose certificate is suspended based on
paragraph (1) shall be subject to revocation or other discipline in
accordance with subdivision (a).

begin insert

(e) The council shall notify the city, county, or city and county
in which a certificate holder is operating when the council revokes
a certificate holder’s certificate.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 4612 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

4612.  

(a) (1) The holder of a certificate issued pursuant to
this chapter shall have the right to practice massage, consistent
with this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section, to engage
in that practice.

(2) Notwithstanding any other provision of law, a city, county,
or city and county shall not enact an ordinance that requires a
license, permit, or other authorization to provide massage for
compensation by an individual who is certified pursuant to this
chapter and who is practicing consistent with the qualifications
established by his or her certification, or by a massage business
or massage establishment that employs or uses only persons who
are certified pursuant to this chapter to provide massage for
compensation. No provision of any ordinance enacted by a city,
county, or city and county that is in effect before the effective date
of this chapter, and that requires a license, permit, or other
authorization to provide massage for compensation, may be
enforced against an individual who is certified pursuant to this
chapter or against a massage business or massage establishment
that employs or uses only persons who are certified pursuant to
this chapter to provide massage for compensation.

(3) Except as provided in subdivision (b), nothing in this section
shall be interpreted to prevent a city, county, or city and county
from adopting or enforcing any local ordinance that provides for
reasonable health and safety requirements for massage
establishments or businesses. Subdivision (b) shall not apply to
any massage establishment or business that employs or uses
persons to provide massage services who are not certified pursuant
to this chapter.

(b) (1) This subdivision shall apply only to massage
establishments or businesses that are sole proprietorships, where
the sole proprietor is certified pursuant to this chapter, and to
massage establishments or businesses that employ or use only
persons certified pursuant to this chapter to provide massage
services. For purposes of this subdivision, a sole proprietorship is
a business where the owner is the only person employed by that
business to provide massage services.

(2) (A) Any massage establishment or business described in
paragraph (1) shall maintain on its premises evidence for review
by local authorities that demonstrates that all persons providing
massage services are certified.

(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (1) to file copies or
provide other evidence of the certificates held by the persons who
are providing massage services at the business.

(3) A city, county, or city and county may charge a massage
business or establishment a business licensing fee, provided that
the fee shall be no higher than the begin delete lowest end delete begin insert average end insert fee that is applied
to other individuals and businesses providing professional services,
as defined in subdivision (a) of Section 13401 of the Corporations
Code.

(4) Nothing in this section shall prohibit a city, county, or city
and county from enacting ordinances, regulations, rules,
requirements, restrictions, land use regulations, moratoria,
conditional use permits, or zoning requirements applicable to an
individual certified pursuant to this chapter or to a massage
establishment or business that uses only individuals who are
certified pursuant to this chapter to provide massage for
compensation, provided that, unless otherwise exempted by this
chapter, these ordinances, regulations, rules, requirements,
restrictions, land use regulations, moratoria, conditional use
permits, and zoning requirements shall be no different than the
requirements that are begin delete uniformly end delete applied to all other individuals
and businesses providing professional services, as defined in
subdivision (a) of Section 13401 of the Corporations Code. No
provision of any ordinance, regulation, rule, requirement,
restriction, land use regulation, moratoria, conditional use permit,
or zoning requirement enacted by a city, county, or city and county
that is in effect before the effective date of this chapter, and that
is inconsistent with this paragraph, may be enforced against an
individual who is certified pursuant to this chapter or against a
massage business or massage establishment that uses only
individuals who are certified pursuant to this chapter to provide
massage for compensation.

(5) Local building code or physical facility requirements
applicable to massage establishments or businesses shall not require
additional restroom, shower, or other facilities that are not
begin delete uniformly end delete applicable to other professional or personal service
businesses, nor shall building or facility requirements be adopted
that begin delete (A) require unlocked doors when there is no staff available to
ensure security for clients and massage staff who are behind closed
doors, or (B) end delete require windows that provide a view into massage
rooms that interfere with the privacy of clients of the massage
business.

(6) A city, county, or city and county may adopt reasonable
health and safety requirements with respect to massage
establishments or businesses, including, but not limited to,
requirements for cleanliness of massage rooms, towels and linens,
and reasonable attire and personal hygiene requirements for persons
providing massage services, provided that nothing in this paragraph
shall be interpreted to authorize adoption of local ordinances that
impose additional qualifications, such as medical examinations,
background checks, or other criteria, upon any person certified
pursuant to this chapter.

(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:

(A) Requiring an applicant for a business license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information, as long as
the information requested is the same as that required of other
individuals and professionals providing professional services as
defined in subdivision (a) of Section 13401 of the Corporations
Code.

(B) Making reasonable investigations into the information so
provided.

(C) Denying or restricting a business license if the applicant
has provided materially false information.

(c) An owner or operator of a massage business or establishment
begin delete who is certified pursuant to this chapter end delete shall be responsible for
the conduct of all employees or independent contractors working
on the premises of the business. Failure to comply with this chapter
may result in revocation of the owner’s or operator’s certificate in
accordance with Section 4603. Nothing in this section shall
preclude a local ordinance from authorizing suspension, revocation,
or other restriction of a license or permit issued to a massage
establishment or business if violations of this chapter, or of the
local ordinance, occur on the business premises.

(d) Nothing in this section shall preclude a city, county, or city
and county from adopting a local ordinance that is applicable to
massage businesses or establishments described in paragraph (1)
of subdivision (b) and that does either of the following:

(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health
and safety requirements.

(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management,
or convey the business to another person.

(e) Nothing in this chapter shall be construed to preclude a city,
county, or city and county from requiring a background check of
an owner or operator of a massage establishment who owns 5
percent or more of a massage business or massage establishment
and who is not certified pursuant to this chapter. The background
check may include, but is not limited to, a criminal background
check, including requiring submission of fingerprints for a state
and federal criminal background check, submission of an
application that requires the applicant to state information,
including, but not limited to, the applicant’s business, occupation,
and employment history for the 10 years preceding the date of
application, the inclusive dates of same, and the name and address
of any massage business or other like establishment owned or
operated by any person who is subject to the background check
requirement of this subdivision. If a noncertified owner’s or
operator’s background check results in a finding that the city,
county, or city and county determines is relevant to owning or
operating a massage establishment, then the provisions of
subdivisions (a) and (b) shall not apply to that establishment and
the city, county, or city and county may regulate that establishment
in any manner it deems proper that is in accordance with the law.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 51030 of the end insert begin insert Government Code end insert begin insert is amended to
read: end insert

51030.  

begin insert (a) end insert begin insert   end insert The legislative body of a begin delete city for incorporated areas
or county for unincorporated areas end delete begin insert city, county, or city and county end insert
may enact an ordinance begin delete which end delete begin insert that end insert provides for the licensing for
regulation of the business of massage when carried on within the
begin delete city or county. end delete begin insert city, county, or city and county, including, without
limitation, to do any of the following: end insert

begin insert

(1) (A) Prohibit an individual or entity from operating a
massage business in the jurisdiction without a valid massage
business license.

end insert begin insert

(B) For purposes of this chapter, “massage business license”
means a license issued by a local licensing body to operate a
massage business within the local licensing body’s jurisdiction.

end insert begin insert

(2) Require a certificate holder to be present at the massage
business during operating hours.

end insert begin insert

(3) Require an employee or independent contractor to present
his or her state-issued identification card or United States passport
to a law enforcement officer upon request during operating hours.

end insert begin insert

(4)  Require a massage business to display a list of its
employees and independent contractors who are certificate holders.

end insert begin insert

(5) Prohibit sexual conduct on the premises of a massage
business.

end insert begin insert

(b) The legislative body shall transmit a copy of the ordinance
to the Massage Therapy Council.

end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 51032 of the end insert begin insert Government Code end insert begin insert is amended to
read: end insert

51032.  

(a) The ordinance may also provide that a begin insert massage
business end insert license begin delete to engage in the business of massage end delete may be
denied upon a showing by the licensing authority of begin delete either end delete begin insert any end insert of
the following:

(1) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of a violation of Section
begin insert 236.1, end insert 266i, 315, 316, 318, or subdivision (b) of Section 647 of
the Penal Code, or proof that the massage personnel or the owners
or operators of a massage business have been convicted in any
other state of any offense which, if committed or attempted in this
state, would have been punishable as one or more of the
above-mentioned offenses of this subdivision.

(2) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of any felony offense
involving the sale of a controlled substance specified in Section
11054, 11055, 11056, 11057, or 11058 of the Health and Safety
Code or proof that the massage personnel or the owners or
operators of the massage business have been convicted in any other
state of any offense which, if committed or attempted in this state,
would have been punishable as one or more of the above-mentioned
offenses of this subdivision.

begin insert

(3) The California Massage Therapy Council has revoked the
applicant’s massage certificate.

end insert begin insert

(4) The licensing body of another jurisdiction has revoked the
applicant’s massage business license pursuant to subdivision (a)
of Section 51032.3.

end insert begin insert

(5) The California Massage Therapy Council has disciplined
the applicant pursuant to Section 4603 of the Business and
Professions Code.

end insert begin insert

(6) The massage business is located in a location where a
previous massage business was located and the massage business
license of that previous massage business was revoked.

end insert

(b) The ordinance shall also provide that a begin insert massage business end insert
license begin delete to engage in the business of massage end delete shall be denied upon
a showing by the licensing authority of proof that the massage
personnel or the owners or operators of a massage business are
required to register under the provisions of Section 290 of the
Penal Code.

begin insert

(c) For purposes of this chapter, “massage certificate” means
a certificate issued by the Massage Therapy Council pursuant to
Chapter 10.5 (commencing with Section 4600) of Division 2 of the
Business and Professions Code.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 51032.3 is added to the end insert begin insert Government Code end insert begin insert , to
read: end insert

begin insert

begin insert 51032.3. end insert   

(a) (1) The ordinance may authorize the city, county,
or city and county to suspend a massage business license if the
owner, operator, or an employee is arrested for a crime listed in
Section 51032. The suspension may be effective for the period up
to and including any administrative and judicial hearing regarding
the violation.

(2) If the owner, operator, or employee is found not guilty of
the violation described in paragraph (1), the massage business
license shall be reinstated within 60 days of the decision.

(b) The ordinance may authorize the city, county, or city and
county to revoke a massage business license for any of the
following reasons:

(1) The California Massage Therapy Council has revoked a
massage certificate it issued to the owner or operator.

(2) A licensing entity in another jurisdiction has revoked a
license that it issued to the owner or operator.

(3) The California Massage Therapy Council has disciplined
the owner or operator pursuant to Section 4603 of the Business
and Professions Code.

end insert

begin delete

SECTION 1.  

It is the intent of the Legislature to enact
legislation to prevent human trafficking and prostitution in massage
therapy establishments.

end delete