Bill Text: CA AB1147 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Massage therapy.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Passed) 2014-09-18 - Chaptered by Secretary of State - Chapter 406, Statutes of 2014. [AB1147 Detail]
Download: California-2013-AB1147-Amended.html
BILL NUMBER: AB 1147 AMENDED BILL TEXT AMENDED IN SENATE APRIL 23, 2014 AMENDED IN ASSEMBLY JANUARY 14, 2014 AMENDED IN ASSEMBLY JANUARY 6, 2014 AMENDED IN ASSEMBLY MAY 31, 2013 AMENDED IN ASSEMBLY MAY 13, 2013 AMENDED IN ASSEMBLY MAY 1, 2013 AMENDED IN ASSEMBLY APRIL 15, 2013 INTRODUCED BY AssemblyMemberGomezMembers Bonilla, Gomez, and Holden(Coauthor:Assembly MemberMuratsuchi)FEBRUARY 22, 2013 An act toamend Section 4601 ofadd and repeal Chapter 10.5 (commencing with Section 4600) of Division 2 of the Business and Professions Code, relating to healing arts. LEGISLATIVE COUNSEL'S DIGEST AB 1147, as amended,GomezBonilla . Massage therapy. Existing law, until January 1, 2015, provides for the voluntary certification of massage practitioners and massage therapists by the California Massage Therapy Council. Existing law specifies the requirements for the council to issue to an applicant a certificate as a massagepractitioner, including, but not limited to, successfully completing curricula in massage and related subjects totaling a minimum of 250 hours or the credit unit equivalent, as specified.practitioner or massage therapist. Existing law authorizes a city, county, or city and county to impose certain requirements on massage establishments or businesses that are the sole proprietorship of an individual certified pursuant to existing state law or that employ or use only persons who are so certified. Existing law authorizes a city, county, or city and county to, among other things, adopt reasonable health and safety requirements, as specified, pertaining to those massage establishments or businesses, and to require an applicant for a business license to operate a massage business or establishment to fill out an application that requests relevant inf ormation, as specified. This bill would reenact, revise, and recast these provisions to, among other things, additionally provide for the registration of massage establishments and the certification of massage establishment operators, as specified. The bill would discontinue the issuance of new massage practitioner certificates after January 1, 2015, except as provided, but would authorize the renewal of massage practitioner certificates issued prior to January 1, 2015. The bill would require that all certificates or registrations issued pursuant to these provisions be subject to renewal every 2 years, except as provided. The bill would require the board of directors of the council to adopt requirements for the continuing education of certificate holders, as specified, and would require the council to inspect and approve schools or continuing education providers. The bill would authorize the council to deny an application for a certificate or registration, or to discipline a certificate holder or registered establishment for violation of these provisions, as specified. The bill would require the board to exercise its denial or discipline authority by means of fair and reasonable procedures that, among other things, provide the applicant, certificate holder, or registered establishment with notice and an opportunity to be heard, as specified. The bill would provide that unprofessional conduct in violation of these provisions includes, among other things, engaging in sexually suggestive advertising related to massage services and engaging in sexual activity while providing massage services for compensation. The bill would, notwithstanding any other law, prohibit a city, county, or city and county from enacting an ordinance that conflicts with these provisions and would prohibit any conflicting ordinance that is in effect before the effective date of these provisions from being enforced against a certificate holder or registered establishment. However, the bill would authorize a city, county, or city and county to enact ordinances that require a certificate holder or registered establishment to, among other things, obtain a license, permit, or other authorization, as specified, and abide by reasonable health and safety requirements, as specified. The bill would authorize a court to issue an injunction or to provide any other relief it deems appropriate for violations of these provisions, as specified. The bill would provide that the powers and duties of the council are subject to review by the appropriate committees of the Legislature and would require the council to provide a specified report to these committees on or before June 1, 2016. The bill would provide that these provisions are issues of statewide concern, and therefore applicable statewide. The bill would also provide that its provisions be severable. The bill would repeal these provisions on January 1, 2017.This bill would additionally require an applicant for a certificate as a massage practitioner to pass a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the council.Vote: majority. Appropriation: no. Fiscal committee:noyes . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. It is the intent of Legislature that this act enable consumers and local governments to more easily identify trained massage professionals, provide for the consistent and statewide certification and oversight of massage professionals, ensure that schools teaching massage provide a high level of training and protection for students, assist local governments and law enforcement in maintaining the highest standards of performance by certificated professionals, and provide for a self-funded nonprofit oversight body to certify massage professionals, register massage establishments, and ensure full compliance with, and execution of, the requirements of this act. SEC. 2. Chapter 10.5 (commencing with Section 4600) is added to Division 2 of the Business and Professions Code , to read: CHAPTER 10.5. MASSAGE THERAPY ACT 4600. This chapter shall be known and may be cited as the Massage Therapy Act. Whenever a reference is made to the Massage Therapy Act by any statute, it shall be construed to refer to this chapter. 4601. As used in this chapter, the following terms shall have the following meanings: (a) "Approved school" or "approved massage school" means a school approved by the council that meets minimum standards for training and curriculum in massage and related subjects, that meets any of the following requirements, and that has not been otherwise disapproved by the council: (1) Is approved by the Bureau for Private Postsecondary Education. (2) Is approved by the Department of Consumer Affairs. (3) Is an institution accredited by the Accrediting Commission for Senior Colleges and Universities or the Accrediting Commission for Community and Junior Colleges of the Western Association of Schools and Colleges and that is one of the following: (A) A public institution. (B) An institution incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, and that is not managed by any entity for profit. (C) A for-profit institution. (D) An institution that does not meet all of the criteria in subparagraph (B) that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, that has been in continuous operation since April 15, 1997, and that is not managed by any entity for profit. (4) Is a college or university of the state higher education system, as defined in Section 100850 of the Education Code. (5) Is a school requiring equal or greater training than what is required pursuant to this chapter and is recognized by the corresponding agency in another state or accredited by an agency recognized by the United States Department of Education. (b) "Certificate" means a valid certificate issued by the council pursuant to this chapter. (c) "Compensation" means a payment, loan, advance, donation, contribution, deposit, or gift of money, or anything of value. (d) "Council" means the California Massage Therapy Council created pursuant to this chapter, which shall be a nonprofit organization exempt from taxation under Section 501(c)(3) of Title 26 of the United States Code. (e) "Massage" means the scientific manipulation of the soft tissues. For purposes of this chapter, the terms "massage" and "bodywork" shall have the same meaning. (f) "Massage establishment" or "establishment" means a business, studio, facility, or other entity that provides massage for compensation on its premises. (g) "Massage practitioner" means a person who is certified by the council under Section 4604.2 and who administers massage for compensation. (h) "Massage therapist" means a person who is certified by the council under Section 4604 and who administers massage for compensation. (i) "Registration" means a valid establishment registration issued by the council pursuant to this chapter. (j) "Registered massage establishment" or "registered establishment" means a massage establishment that is registered with the council pursuant to Section 4613 as employing or using only certificate holders to administer massage for compensation, and that is in good standing and otherwise in compliance with the requirements of this chapter. (k) "Operator" means a person, whether owner or nonowner, who manages the day-to-day operations of a massage establishment and supervises two or more certificate holders in the administration of massage for compensation. An operator need not be an owner of the establishment. (l) "Owner" means a person having any ownership interest in a massage establishment, including, but not limited to, an officer, director, manager, or partner of a corporation, a partnership, or any other business entity, formation, or relationship. 4602. (a) The California Massage Therapy Council, as defined in subdivision (d) of Section 4601, is hereby established and shall carry out the responsibilities and duties set forth in this chapter. (b) The council may take any reasonable actions necessary to carry out the responsibilities and duties set forth in this chapter, including, but not limited to, the hiring of staff, entering into contracts, and developing policies and procedures to implement this chapter. (c) The council may require background checks for all employees, contractors, volunteers, and board members as a condition of their employment or participation in council activities. (d) The council shall issue a certificate to an individual applicant who satisfies the requirements of this chapter for that certificate, and shall issue a registration to a massage establishment that satisfies the requirements of this chapter. (e) The council shall determine that the information provided to the council in relation to the certification of an applicant or registration of an establishment is true and correct and meets the requirements of this chapter. If the council has any reason to question whether or not the information provided is true or correct or meets the requirements of this chapter, the council is authorized to make any investigation it deems necessary to establish that the information received is accurate and satisfies any criteria established by this chapter. (f) Until July 1, 2015, the council shall be governed by a board of directors comprised of two representatives selected by each professional society, association, or other entity, which 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: (1) One member selected by each statewide association of private postsecondary schools incorporated on or before January 1, 2010, which member schools have together had at least 1,000 graduates in each of the previous three years from massage therapy programs that meet the approval standards set forth in subdivision (a) of Section 4601, except from those qualifying associations that choose not to exercise this right of selection. (2) One member selected by the League of California Cities, unless that entity chooses not to exercise this right of selection. (3) One member selected by the California State Association of Counties, unless that entity chooses not to exercise this right of selection. (4) One member selected by the Director of Consumer Affairs, unless that entity chooses not to exercise this right of selection. (5) 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. (6) The council's bylaws shall establish a process for appointing other professional directors, as determined by the board. (g) On July 1, 2015, the board of directors established pursuant to subdivision (f) shall be dissolved, and the council shall instead be governed by a board of directors comprised of 11 members chosen in the following manner: (1) One member shall be a representative of the League of California Cities, unless that entity chooses not to exercise this right of selection. (2) One member shall be a representative of the California Police Chiefs Association, unless that entity chooses not to exercise this right of selection. (3) One member shall be a representative of the California State Association of Counties, unless that entity chooses not to exercise this right of selection. (4) One member shall be appointed to the board by the Senate Committee on Rules, who shall be a member of the public. (5) One member shall be appointed to the board by the Speaker of the Assembly, who shall be a member of the public. (6) Six members shall be appointed to the board by the Governor. One member shall represent the Department of Consumer Affairs, one member shall be a member of the public, and four members shall be representatives of the massage industry. (h) Board member terms shall be four years. (i) 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 for certificates shall be in an amount sufficient to support the functions of the council in the administration of this chapter, but in no event shall exceed two hundred fifty dollars ($250). The renewal fee shall be reassessed biennially by the board. (j) The meetings of the council shall be subject to the rules of 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). 4603. Protection of the public shall be the highest priority for the council in exercising its certification, registration, disciplinary, and other functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. 4604. (a) In order to obtain certification as a massage therapist, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours, or the credit unit equivalent, that incorporates appropriate school assessment of student knowledge and skills. (A) Of the 500 hours, a minimum of 100 hours of instruction shall address anatomy and physiology, contraindications, health and hygiene, and business and ethics. (B) Of the 500 hours, a minimum of 250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved schools or from a continuing education provider approved by the council. (3) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the council. The successful completion of this examination may have been accomplished before the date the council is authorized by this chapter to begin issuing certificates. (4) The applicant has successfully passed a background investigation pursuant to Section 4606. (5) All fees required by the council have been paid. (b) A certificate issued pursuant to this chapter and any identification card issued by the council shall be surrendered to the council by any certificate holder whose certificate has been suspended or revoked. 4604.1. (a) In order to obtain certification as a massage establishment operator, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant has successfully completed curricula related to massage management and related subjects totaling a minimum of 50 hours, or the credit unit equivalent, that incorporates health and hygiene, and business and ethics. The 50 hours may be secured either from approved schools or from a continuing education provider approved by the council. (3) The applicant has successfully passed a background investigation pursuant to Section 4606. (4) All fees required by the council have been paid. (b) A certificate issued pursuant to this chapter and any identification card issued by the council shall be surrendered to the council by any certificate holder whose certificate has been suspended or revoked. (c) An operator of a massage establishment may be held responsible and disciplined by the council for conduct by any employee, independent contractor, or volunteer working on the premises of the operator's establishment that violates any law or the policies and procedures of the council, if the operator knew or should have known of the conduct. (d) A certificate may be issued by the council pursuant to this section on or after January 1, 2016. 4604.2. (a) The council shall not issue any new certificates to practice as a certified massage practitioner on or after January 1, 2015. (b) Certificates to practice as a certified massage practitioner issued prior to January 1, 2015, may be renewed, if the certificate holder continues to be qualified pursuant to this chapter and is not otherwise out of compliance with the requirements of this chapter. (c) A massage practitioner certificate issued prior to January 1, 2015, and any identification card issued by the council, shall be surrendered to the council by any certificate holder whose certificate has been suspended or revoked. 4604.3. (a) A person who was issued a conditional certificate to practice as a massage practitioner shall, within five years of being issued the conditional certificate, complete at least 30 hours of additional education per year from approved schools or from providers approved by the council. (b) A conditional certificate shall immediately be nullified, without need for further action by the council, if proof of completion of the requirements specified in subdivision (a) is not filed with the council within five years of the issuance of the conditional certificate. (c) Notwithstanding subdivision (a) of Section 4604.2, the council shall issue a new certificate to practice as a massage practitioner to a person that successfully completes the requirements described in subdivision (a). 4605. (a) Except as otherwise provided, a certification or registration issued pursuant to this chapter shall be subject to renewal every two years in the manner prescribed by the council. A certificate or registration issued by the council shall expire after two years unless renewed as prescribed. The council may provide for the late renewal of a certificate or registration. (b) To the extent required by this chapter, a certificate holder seeking renewal shall submit proof satisfactory to the council that, during the preceding two years, he or she has completed the required number of continuing education hours in an approved form and from an approved provider, as determined by the council. 4606. (a) Prior to issuing a certificate or a registration to an applicant, or designating a custodian of records, the council shall require the applicant or the custodian of records candidate to submit fingerprint images as directed by the council and in a form consistent with the requirements of this section. (b) The council shall submit the fingerprint images and related information to the Department of Justice for the purpose of obtaining information as to the existence and nature of a record of state and federal level convictions and of state and federal level arrests for which the Department of Justice establishes that the applicant or candidate was released on bail or on his or her own recognizance pending trial. (c) Requests for federal level criminal offender record information received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice. The Department of Justice shall review the information returned from the Federal Bureau of Investigation, and shall compile and disseminate a fitness determination regarding the applicant or candidate to the council. The Department of Justice shall provide information to the council pursuant to subdivision (p) of Section 11105 of the Penal Code. (d) The Department of Justice and the council may charge a fee sufficient to cover the cost of processing the request for state and federal level criminal offender record information. (e) The council shall request subsequent arrest notification service from the Department of Justice, as provided under Section 11105.2 of the Penal Code, for all applicants for certification or registration, or custodian of records candidates for whom fingerprint images and related information are submitted to conduct a search for state and federal level criminal offender record information. (f) The council is authorized to receive arrest notifications and other background material about applicants and certificate and registration holders from a city, county, or city and county. 4607. (a) The council shall adopt requirements for the continuing education of certificate holders, to become effective on the date specified by the council. The requirements shall address the total number of hours required, acceptable forms of continuing education, approved providers of continuing education, and any other matters deemed necessary by the council. Continuing education requirements for certificate holders shall not exceed 30 hours every two years. (b) The council shall perform random audits in order to ensure compliance with these requirements. (c) The administration of this section may be funded through renewal fees and continuing education provider fees, not to exceed the amounts necessary to cover the reasonable costs of administering this section. (d) This section shall become effective on January 1, 2016. 4608. In addition to the other requirements of this chapter, a certificate holder shall: (a) Display his or her original certificate wherever he or she provides massage for compensation. A certificate holder shall have his or her identification card in his or her possession while providing massage services for compensation. (b) Provide his or her full name and certificate number upon the request of a member of the public, the council, or a member of law enforcement, or a local government agency charged with regulating massage or massage establishments, at the location where he or she is providing massage services 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. (d) Notify the council within 30 days of any changes in the certificate holder's home address or the address of any massage establishment or other location where he or she regularly practices massage. 4609. (a) It is a violation of this chapter for a certificate holder to commit any of the following acts: (1) Unprofessional conduct, including, but not limited to, any of the following: (A) Engaging in sexually suggestive advertising related to massage services. (B) Engaging in any form of sexual activity on the premises of 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 license, or practicing outside of the conditions of a restricted license. (2) Procuring or attempting to procure a certificate by fraud, material misrepresentation, or mistake. (3) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to in this chapter for the issuance of a certificate. (4) Impersonating a certificate holder, or permitting or allowing a noncertified person to use a certificate. (5) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of this chapter or any rule or bylaw adopted by the council. (6) Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder. (7) Being the subject, while holding a valid certificate, of a denial of licensure, revocation, suspension, restriction, or any other disciplinary action by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board, or having been the subject of such discipline before submitting an application without fully disclosing that fact to the council. A certified copy of the decision, order, or judgment shall be conclusive evidence of these actions. (8) Being convicted of any felony, misdemeanor, infraction, or municipal code violation, or being held liable in an administrative or civil action for an act, that is substantially related to the qualifications, functions, or duties of a certificate holder while holding a valid certificate. A record of the conviction or other judgment shall be conclusive evidence of the crime or liability. (9) Having been convicted of crimes or held liable for acts described in paragraph (8) prior to submitting an application for certification and failing to fully disclose that fact to the council. A record of the conviction or other judgment shall be conclusive evidence of the crime or liability. (10) Committing any act punishable as a sexually related crime or being required to register pursuant to the Sex Offender Registration Act (Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1 of the Penal Code), or being required to register as a sex offender in another state. (11) Failing to pay fines or fees levied by a city, county, or city and county for violations pertaining to the practice of massage within 90 days of becoming due, unless a formal dispute process is pending, the certificate holder is in bankruptcy proceedings, or the fines or fees are otherwise waived by the council. (b) The council may deny an application for a certificate or registration for the commission of any of the acts described in subdivision (a). The council may also discipline a certificate holder or registered massage establishment, in any manner permitted by this chapter, for the commission of any of those acts by a certificate holder, or by an employee, contractor, or volunteer of a registered establishment while on the premises, if any owner or operator of the establishment knew or should have known of the acts. 4610. (a) An applicant for a certificate or registration shall not be denied a certificate or registration, and a certificate holder or registered establishment shall not be disciplined, pursuant to this chapter except according to procedures satisfying the requirements of this section. Denial or discipline not in accord with this section shall be void and without effect. (b) The council may discipline a certificate holder or a registered establishment by any, or a combination, of the following methods: (1) Placing the certificate holder or registered establishment on probation, which may include limitations or conditions on practice. (2) Suspending the certificate or registration and the rights conferred by this chapter on a certificate holder or registered establishment for a period not to exceed one year. (3) Suspending or staying the disciplinary order, or portions of it, with or without conditions. (4) Revoking the certificate or registration. (5) Taking other action as the council, as authorized by this chapter or its bylaws, deems proper. (c) The council may issue an initial certificate or registration on probation, with specific terms and conditions, to any applicant. (d) A registered establishment may be held accountable for the conduct of employees, independent contractors, and volunteers working on the premises of the establishment, including individuals not authorized to provide massage services for compensation, and may be disciplined by the council pursuant to this chapter, if any owner or operator of the registered establishment knew or should have known of the conduct. (e) Any denial or discipline shall be decided upon and imposed in good faith and in a fair and reasonable manner. Any procedure that conforms to the requirements of subdivision (f) is fair and reasonable, but a court may also find other procedures to be fair and reasonable when the full circumstances of the denial or discipline are considered. (f) A procedure is fair and reasonable if all of the following apply: (1) Denial or discipline shall be based on a preponderance of the evidence. In determining the basis for the denial or discipline, the council may consider all written documents or statements as evidence, but shall weigh the reliability of those documents or statements. (2) The provisions of the procedure are publically available on the council's Internet Web site. (3) The council provides 15 calendar days prior notice of the denial or discipline and the reasons for the denial or discipline. (4) The council provides an opportunity for the applicant, certificate holder, or registered establishment to be heard, orally or in writing, not less than five days before the effective date of the denial or discipline, by a person or body authorized to decide whether or not the proposed denial or discipline should go into effect. (g) (1) Notwithstanding any other 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 paragraph (10) of subdivision (a) of Section 4609, the council shall immediately suspend, on an interim basis, the certificate of that certificate holder, and take all of the following additional actions: (A) Notify the certificate holder at the address last filed with the council that the certificate has been suspended and the reason for the suspension within 5 business days. (B) Notify any establishment or employer, whether public or private, that the council has in its records as employing the certificate holder that the certificate has been suspended within 5 business days. (2) Upon notice to the council that the charges described in paragraph (1) have resulted in a conviction, the council may permanently revoke the suspended permit. However, the certificate shall remain suspended during any appeal of the conviction. 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 from the date of receiving notice that the evidence of conviction is incorrect or that the conviction is under appeal. (3) Upon notice that the charges described in paragraph (1) have resulted in an acquittal or have been otherwise dismissed prior to conviction, the certificate shall be immediately reinstated and the certificate holder and any establishment or employer that received notice pursuant to this section shall be notified of the reinstatement within 5 business days. (h) (1) Notwithstanding any other law, if the council determines 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 determination to immediately suspend a certificate pursuant to this subdivision shall be based upon a preponderance of the evidence and the council shall also consider any available credible mitigating evidence before making a decision. 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 a certificate in accordance with this subdivision, the council shall take all of the following additional actions: (A) Notify the certificate holder, at the address last filed with the council, 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) within 5 business days. (B) Notify by electronic mail or any other means consistent with the notice requirements of this chapter, any business or employer, whether public or private, that the council has in its records as employing or contracting with the certificate holder for massage services, and the California city, county, or city and county that has jurisdiction over that establishment or employer, that the certificate has been suspended within 5 business days. (2) 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 calendar 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). (3) If the council determines, after a hearing conducted pursuant to this subdivision, to lift the suspension, the certificate shall be immediately reinstated and the certificate holder, any establishment or employer, and the California city, county, or city and county that has jurisdiction over that establishment or employer, that received notice pursuant to this section shall be notified of the reinstatement within 5 business days. (i) Any notice required under this section may be given by any method reasonably calculated to provide actual notice. Any notice given by mail shall be given by first-class or certified mail sent to the last address of the applicant, certificate holder, or registered establishment shown on the council's records. (j) An applicant, certificate holder, or registered establishment may challenge a denial or discipline issued pursuant to this section in a court of competent jurisdiction. Any action challenging a denial or discipline, including any claim alleging defective notice, shall be commenced within one year after the date of the denial or discipline. If the action is successful, the court may order any relief, including reinstatement, that it finds equitable under the circumstances. (k) This section governs only the procedures for denial or discipline and not the substantive grounds for the denial or discipline. Denial or discipline based upon substantive grounds that violates contractual or other rights of the applicant, certificate holder, or registered establishment, or is otherwise unlawful, is not made valid by compliance with this section. 4611. (a) It is an unfair business practice for a person to do any of the following: (1) To hold himself or herself out or to use the title of "certified massage therapist," "certified massage practitioner," or any other term, such as "licensed," "certified," "registered," "CMT," or "CMP," that implies or suggests that the person is certified as a massage therapist or practitioner without meeting the requirements of Section 4604 or 4604.2. (2) To hold his or her massage establishment out or to use the title of "registered massage establishment," "certified massage establishment," or any other term, such as "licensed," "certified," "registered," or "RME," that implies or suggests that the establishment is a registered massage establishment without meeting the requirements of Section 4613. (3) To falsely state or advertise or put out any sign or card or other device, or to falsely represent to the public through any print or electronic media, that he or she or any other individual is licensed, certified, or registered by a governmental agency as a massage therapist or massage practitioner, or that an establishment is registered pursuant to this chapter. (b) In addition to any other available remedies, engaging in any of the prohibited behaviors described in subdivision (a) constitutes unfair competition under Section 17200. 4612. (a) Notwithstanding any other law, a city, county, or city and county shall not enact an ordinance that conflicts with this chapter, nor shall any ordinance enacted by a city, county, or city and county that is in effect before the effective date of this chapter that conflicts with this chapter be enforced against a certificate holder or registered massage establishment. (b) A city, county, or city and county may enact an ordinance pursuant to Section 37101 of the Government Code that requires a certificate holder or registered massage establishment to: (1) Obtain a license, permit, or other authorization if the license, permit, or other authorization is required of any other individual or business providing other professional services as defined in subdivision (a) of Section 13401 of the Corporations Code. (2) (A) Abide by reasonable health and safety requirements including, but not limited to, external window transparency, cleanliness of massage rooms, towels, and linens, reasonable attire and personal hygiene of persons providing massage services, and prohibitions against nonsecurity related camera systems or other recording and display devices. (2) (B) An ordinance enacted pursuant to this subdivision shall not include any of the following: (i) A requirement that a certificate holder take or pass any test, medical examination, or background check, or demonstrate educational experience beyond what is required by this chapter. (ii) A prohibition against locked doors in a registered massage establishment with two or more people working at the establishment. (iii) A requirement that a registered massage establishment provide additional restroom, shower, or other facilities. (iv) A requirement that a registered massage establishment have massage room windows that interfere with the privacy of the clients of the establishment. (3) Abide by hours of operation set forth in the ordinance. (4) Pay charges imposed in accordance with paragraph (3) of subdivision (e) of Section 1 of Article XIII C of the California Constitution. (5) Comply with any other requirement consistent with this chapter. (c) A city, county, or city and county may adopt a local ordinance requiring a certificate holder or a registered massage establishment to comply with the following requirements as a condition of operation, although other requirements consistent with this chapter may additionally be imposed by ordinance: (1) Submit an application for a business license to operate a massage establishment that requires information relevant to the practice of massage, including whether or not the establishment is registered or will exclusively employ or use certified massage professionals to perform massage services. (2) Comply with reasonable investigations regarding information provided in the course of a business license application. (3) File copies or provide other evidence of the certificates held by the persons who are providing massage services at the establishment. (4) Maintain on its premises, for review by local authorities, evidence that demonstrates that all persons providing massage services are certified and that the establishment is duly registered with the council. (5) Permit duly authorized officials of a city, county, or city and county to conduct reasonable inspections, during regular business hours, to ensure compliance with this chapter, the local ordinance, or any other applicable requirements. (6) Notify the city, county, or city and county of any intention to rename, or to change the ownership of, a massage establishment, or to convey the establishment to another person. (7) Pay a business license tax applicable to all other individuals or businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code. (d) If a city, county, or city and county provides the council with evidence that a registered establishment has failed or is failing to exclusively employ or use certificate holders to perform massage services for compensation, and the council fails to make an official determination within 90 days of being providing with that evidence, then the city, county, or city and county may seek relief, including, but not limited to, a declaration that the massage establishment's registration is void pursuant to Section 4617. (e) Nothing in this chapter shall prevent a city, county, or city and county from licensing, regulating, prohibiting, or permitting an individual who provides massage for compensation without a valid certificate, or a massage establishment that is not registered with the council or does not otherwise exclusively utilize certificate holders to provide massage for compensation, in any manner it deems proper that is in accordance with the law. 4613. (a) An owner of a massage establishment wishing to register with the council shall submit a written application in a form provided by the council and provide the council with satisfactory evidence of all of the following: (1) All fees required by the council have been paid. (2) All individuals providing massage for compensation and all massage establishment operators are certified pursuant to this chapter as of the date of the application. (3) A declaration is made that all future individuals who will massage for compensation and all massage establishment operators will be certified pursuant to this chapter, until the establishment notifies the council of its intention to cancel its registration or the registration is not renewed. (4) A complete list has been provided to the council identifying each person who owns 5 percent or more of the massage establishment, operates the massage establishment, or works at the massage establishment in any capacity whatsoever. The list shall include the full legal name, certification number, if any, mailing address, residential address, and position at the establishment of each individual, and any other information the council may require. (5) All owners who own 5 percent or more of the massage establishment and all others working on the premises of the massage establishment who are not certificate holders pursuant to this chapter have submitted fingerprint images in a form consistent with the requirements of Section 4606. (b) The council shall determine that the information provided to the council in relation to the registration of an establishment is true and correct and meets the requirements of this section. An applicant for a massage establishment registration shall have the burden to prove that the massage establishment is in compliance with all of the requirements of this section. If the council has any reason to question whether or not the information provided is true, correct, or meets the requirements of this chapter, the council is authorized to investigate. The investigation may include conducting oral interviews, inspecting the massage establishment's premises during business hours without prior notice, and making any investigation necessary to establish that the information received is accurate and satisfies any criteria established by this chapter. (c) An establishment registration issued pursuant to this chapter shall be surrendered to the council if the registration has been suspended or revoked. (d) The council shall maintain a regularly updated list of registered establishments on its Internet Web site. The council shall, upon request, confirm the names and registration numbers of any certificate holder listed as working at the registered establishment to 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. (e) A registered establishment shall inform the council of any change in the owners, operators, or workers required to be listed in paragraphs (4) and (5) of subdivision (a) within 10 business days of the change. If the registered establishment fails to notify the council of a change in a timely manner, the council may suspend or revoke the establishment's registration. (f) Once an establishment registration has been issued, neither the location nor ownership of the establishment registration shall be transferred, except as follows: (1) An establishment registration may be transferred from one location to another if there is no change in ownership and only after approval by the council, following the receipt of a written application for business location change and payment of a fee, not to exceed the reasonable costs of administering this paragraph. (2) An establishment registration may be transferred from one business name to another if there is no change in ownership and only after approval by the council, following the receipt of a written application for business name change and payment of a fee, not to exceed the reasonable costs of administering this paragraph. (g) A registered massage establishment shall obtain, keep, and maintain for three years, records of the full legal name, address, and telephone number of all persons to which it provides massage services for compensation. Registered massage establishments shall not provide massage services for compensation to clients who fail to provide this information. (h) A registered massage establishment shall include its business name and registration number in all advertising and shall display the original registration at the place of business. (i) A registered massage establishment shall provide, upon request, the name and registration number of the registered massage establishment to a member of the public, the council, or a member of law enforcement, or a local government agency charged with regulating massage or massage establishments. (j) A registered massage establishment and its employees, contractors, and volunteers shall comply with all other applicable requirements of this chapter. (k) The council is authorized to adopt policies and procedures for the periodic inspection of registered massage establishments. (l) The council shall not accept a massage establishment registration application prior to September 1, 2015, and shall not issue a registration prior to December 1, 2015. 4614. (a) 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 or massage establishments, the council shall provide information concerning a certificate holder or registered establishment, including, but not limited to, the current status of the certificate or registration, any history of disciplinary actions taken against the certificate holder or registered establishment, the home and work addresses of the applicant, certificate holder, or establishment owner, and any other information in the council's possession that is necessary to verify facts relevant to administering the local ordinance. (b) Upon the request of the council, 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 the council concerning an applicant, certificate holder, or registered establishment, including, but not limited to, the current status of any local application or permit, any history of legal or administrative action taken against the applicant, certificate holder, or registered establishment, any information related to criminal activity or unprofessional conduct allegedly engaged in by a certificate applicant or certificate holder, including, but not limited to, police reports and declarations of conduct, the home and work addresses of the applicant, certificate holder, or establishment owner, and any other information in the possession of the law enforcement agency or other local government agency that is necessary to verify information or otherwise implement this chapter. (c) The council shall 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 or massage establishments and review that information in a timely manner. 4615. (a) The council shall have the responsibility to determine whether the school or continuing education provider from which an applicant has obtained the education required by this chapter meets the requirements of this chapter. (b) The council may charge a reasonable fee for inspection or approval, provided the fees do not exceed the reasonable cost of the inspection or approval process. (c) The council shall develop policies and procedures governing the requirements and approval process, including provisions for acceptance of accreditation from a recognized accreditation body or other form of acceptance, at the discretion of the council. 4616. The council shall be sued only in the county of its principal office, which shall be in Sacramento, unless otherwise designated by the council. 4617. The superior court of a county of competent jurisdiction may, upon a petition by any person, issue an injunction or any other relief the court deems appropriate for a violation of this chapter by any person or establishment operating in that county subject to the provisions of this chapter. An injunction proceeding under this section shall be governed by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. 4618. (a) The Legislature finds and declares that due to important health, safety, and welfare concerns that affect the entire state, establishing a uniform standard of certification for massage practitioners, massage therapists, and massage establishments upon which consumers may rely to identify individuals who have achieved specified levels of education, training, and skill is a matter of statewide concern and not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this chapter shall apply to all cities and counties, including charter cities and charter counties. (b) Notwithstanding any other law, this chapter shall supersede Chapter 6 (commencing with Section 51030) of Part 1 of Division 1 of Title 5 of the Government Code. 4619. (a) This chapter shall be liberally construed to effectuate its purposes. (b) If any provision of this chapter or the application of these provisions to any person or circumstance is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. 4620. (a) On or before June 1, 2016, the council shall provide a report to the appropriate policy committees of the Legislature that includes all of the following: (1) A feasibility study of licensure for the massage profession, including a proposed scope of practice and related statutory recommendations. (2) The council's compensation guidelines and current salary levels. (3) Performance metrics, including, but not limited to: (A) The annual number of denied certificate and registration applications, and a brief description of the grounds for each decision. (B) The annual number of suspended, revoked, or otherwise disciplined certificates and registrations, and a brief description of the grounds for each decision. (C) The number of certificates taken off suspension, and a brief description of the grounds for each decision. (D) The number of schools inspected, approved, and disapproved, the number of schools that have had their approvals suspended or revoked, and a brief description of the grounds for each decision. (E) The total number of complaints about certificate holders and registered establishments received annually, including a subtotal of complaints received from local law enforcement and the action taken by the council as a result of those complaints. (b) The council shall testify in person if requested by the appropriate policy committees of the Legislature on matters included in the report described in subdivision (a). 4621. (a) This chapter shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date. (b) Notwithstanding any other law, the powers and duties of the council shall be subject to review by the appropriate policy committees of the Legislature.SECTION 1.Section 4601 of the Business and Professions Code is amended to read: 4601. (a) The council shall issue a certificate under this chapter to an applicant who satisfies the requirements of this chapter. (b) (1) In order to obtain certification as a massage practitioner, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (A) The applicant is 18 years of age or older. (B) The applicant has successfully completed, at an approved school, curricula in massage and related subjects, totaling a minimum of 250 hours or the credit unit equivalent, that incorporates appropriate school assessment of student knowledge and skills. Included in the hours shall be instruction addressing anatomy and physiology, contraindications, health and hygiene, and business and ethics, with at least 100 hours of the required minimum 250 hours devoted to these curriculum areas. (C) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the council. The successful completion of this examination may have been accomplished before the date the council is authorized by this chapter to begin issuing certificates. (D) All fees required by the council have been paid. (2) New certificates shall not be issued pursuant to this subdivision after December 31, 2015. Certificates issued pursuant to this section or subdivision (a) or (c) of Section 4604 on or before December 31, 2015, shall, after December 31, 2015, be renewed without any additional educational requirements, provided that the certificate holder continues to be qualified pursuant to this chapter. (c) In order to obtain certification as a massage therapist, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant satisfies at least one of the following requirements: (A) He or she has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours or the credit unit equivalent. Of this 500 hours, a minimum of 250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved or registered schools, or from continuing education providers approved by, or registered with, the council or the Department of Consumer Affairs. After December 31, 2015, applicants may only satisfy the curricula in massage and related subjects from approved schools. (B) The applicant has done both of the following: (i) Successfully completed, at an approved school, curricula in massage and related subjects totaling a minimum of 250 hours that incorporates appropriate school assessment of student knowledge and skills. Included in the hours shall be instruction addressing anatomy and physiology, contraindications, health and hygiene, and business and ethics, with at least 100 hours of the required minimum 250 hours devoted to these curriculum areas. (ii) Passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the board. The successful completion of this examination may have been accomplished before the date the council is authorized by this chapter to begin issuing certificates. (3) All fees required by the council have been paid. (d) The council shall issue a certificate to an applicant who meets the other qualifications of this chapter and holds a current and valid registration, certification, or license from any other state whose licensure requirements meet or exceed those defined within this chapter. The council shall have discretion to give credit for comparable academic work completed by an applicant in a program outside of California. (e) An applicant applying for a massage therapist certificate shall file with the council a written application provided by the council, showing to the satisfaction of the council that he or she meets all of the requirements of this chapter. (f) Any certification issued under this chapter shall be subject to renewal every two years in a manner prescribed by the council, and shall expire unless renewed in that manner. The council may provide for the late renewal of a license. (g) (1) The council shall have the responsibility to determine that the school or schools from which an applicant has obtained the education required by this chapter meet the requirements of this chapter. If the council has any reason to question whether or not the applicant received the education that is required by this chapter from the school or schools that the applicant is claiming, the council shall investigate the facts to determine that the applicant received the required education prior to issuing a certificate. (2) For purposes of paragraph (1) and any other provision of this chapter for which the council is authorized to receive factual information as a condition of taking any action, the council shall have the authority to conduct oral interviews of the applicant and others or to make any investigation deemed necessary to establish that the information received is accurate and satisfies any criteria established by this chapter. (h) The certificate issued pursuant to this chapter, as well as any identification card issued by the council, shall be surrendered to the council by any certificate holder whose certificate has been suspended or revoked.
