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 JUNE 17, 2014
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 Assembly Members Bonilla, Gomez, and Holden
( Coauthor: Assembly Member
Skinner )
FEBRUARY 22, 2013
An act to amend Section 460 of, and to add and repeal
Chapter 10.5 (commencing with Section 4600) of Division 2 of ,
the Business and Professions Code, and to amend Section
51034 of the Government Code, relating to healing arts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1147, as amended, Bonilla. 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 massage 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 information, as specified.
This bill would reenact, revise, and recast these provisions to,
among other things, additionally provide to
establish an interim board of directors to govern the council until
September 1, 2015, and would provide for the appointment of a new
board of directors consisting of 13 members, as specified, whose
4-year terms would begin on that date. The bill would authorize the
board to establish fees reasonably related to the costs of providing
services and performing its duties, not to exceed $300. The bill
would require the board to provide at least 90 days' advance notice
prior to holding a meeting to vote upon a proposal to change the
certification requirements or increase the certification fees, as
specified, except as provided. The bill would also require
the board to notify certificate holders of a board action that
changes those requirements or increases those fees.
This bill would delete provisions for the registration
of massage establishments and , instead, provide for the
certification of massage establishment operators and sole
provider 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
holder for a 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,
applicant or certificate holder, or registered
establishment holder 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 are
severable.
The bill would repeal these provisions on January 1, 2017.
The bill would also make clarifying and conforming changes
regarding local regulation of massage establishments or businesses.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
AB 1147, as amended, Bonilla. 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 massage 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 information, as specified.
This bill would reenact, revise, and recast these provisions to,
among other things, additionally provide to
establish an interim board of directors to govern the council until
September 1, 2015, and would provide for the appointment of a new
board of directors consisting of 13 members, as specified, whose
4-year terms would begin on that date. The bill would authorize the
board to establish fees reasonably related to the costs of providing
services and performing its duties, not to exceed $300. The bill
would require the board to provide at least 90 days' advance notice
prior to holding a meeting to vote upon a proposal to change the
certification requirements or increase the certification fees, as
specified, except as provided. The bill would also require
the board to notify certificate holders of a board action that
changes those requirements or increases those fees.
This bill would delete provisions for the registration
of massage establishments and , instead, provide for the
certification of massage establishment operators and sole
provider 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
holder for a 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,
applicant or certificate holder, or registered
establishment holder 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 are
severable.
The bill would repeal these provisions on January 1, 2017.
The bill would also make clarifying and conforming changes
regarding local regulation of massage establishments or businesses.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) 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.
(b) It is the intent of the Legislature that broad control over
land use in regulating massage establishments be returned to local
governments so that they may manage those establishments in the best
interest of the individual community, and that the requirements and
practice of the profession of massage therapy remain a matter of
statewide concern, regulation, and oversight.
(c) It is further the intent of the Legislature that local
governments, law enforcement, nonprofit stakeholders, the massage
industry, and massage professionals work together going forward to
improve communication and share information to further increase the
value of statewide certification, and also to develop a model
ordinance reflecting best practices in massage regulation for cities
and counties to adopt that will respect local control, patient
privacy, and the dignity of the profession of massage therapy.
SEC. 2. Section 460 of the Business and
Professions Code is amended to read:
460. (a) No city or county shall prohibit a person or group of
persons, authorized by one of the agencies
boards in the Department of Consumer Affairs or a
regulatory body established pursuant to this code by a license,
certificate, or other such means to engage in a particular business,
from engaging in that business, occupation, or profession or any
portion thereof.
(b) No city, county, or city and county shall prohibit a healing
arts professional licensed with the state under Division 2
(commencing with Section 500) from engaging in any act or performing
any procedure that falls within the professionally recognized scope
of practice of that licensee.
(1) This subdivision shall not be construed to prohibit the
enforcement of a local ordinance in effect prior to January 1, 2010,
related to any act or procedure that falls within the professionally
recognized scope of practice of a healing arts professional licensed
under Division 2 (commencing with Section 500).
(2) This subdivision shall not be construed to prevent a city,
county, or city and county from adopting or enforcing any local
ordinance governing zoning, business licensing, or reasonable health
and safety requirements for establishments or businesses of a healing
arts professional licensed under Division 2 (commencing with Section
500).
(c) Nothing in this section shall prohibit any city, county, or
city and county from levying a business license tax solely for
revenue purposes, nor any city or county from levying a license tax
solely for the purpose of covering the cost of regulation.
SEC. 2. SEC. 3. 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. location where massage
is performed for compensation, excluding those locations where
massage is only provided on an out-call basis.
(g) "Massage practitioner" means a person who is certified by the
council under pursuant to 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)
(i) "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 meets the
requirements of Section 4604.1 . An operator need not be an
owner of the establishment or a certified massage therapist or
practitioner .
(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.
(j) "Sole provider" means a massage business where the owner owns
100 percent of the business, is the only person who provides massage
services for compensation for that business pursuant to a valid and
active certificate issued in accordance with this chapter, and has no
other employees.
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 , formation of a contractual relationship, 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 is authorized to
determine that whether 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 September 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 unless a
qualifying associations that choose
association chooses 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 At 12 p.m. Pacific Standard
Time on September 1, 2015, the term of each member of the
board of directors established pursuant to subdivision (f)
shall be dissolved terminate , and the
council terms of 13 new members of the board
of directors who shall instead be
governed by a board of directors comprised of 11 members
chosen in the following manner , shall begin :
(1) One member shall be a representative of the League of
California Cities, unless that entity chooses not to exercise this
right of selection to appoint .
(2) One member shall be a representative of the California Police
Chiefs Association, unless that entity chooses not to exercise this
right of selection to appoint .
(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 to appoint .
(4) One member shall be appointed to the board by the
Senate Committee on Rules, who shall be a member of the public
a representative of an antihuman trafficking
organization to be determined by that entity unless that entity
chooses not to exercise this right to appointment .
(5) One member shall be appointed to
the board by the Speaker of the Assembly, who
shall be a member of the public Office of the
Chancellor of the California Community Colleges, unless that office
chooses not to exercise this right of appointment. The appointee
shall not be participating in any massage therapy certificate or
degree program .
(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.
(6) Two members shall be appointed by the Director of Consumer
Affairs, one of whom shall be a public member and one of whom shall
be a California-certified massage therapist or practitioner who has
been practicing for at least three years, unless the director chooses
not to exercise this right of appointment.
(7) One member appointed by the California Association of Private
Postsecondary Schools.
(8) One representative shall be appointed by the American Massage
Therapy Association, California Chapter, who shall be a
California-certified massage therapist or massage practitioner who is
a California resident and who has been practicing massage for at
least three years.
(9) (A) One representative, who shall be a certified massage
therapist or a certified massage practitioner who is a California
resident who has practiced massage for at least three years prior to
the appointment, selected by a professional society, association, or
other entity which membership is comprised of massage therapist
professionals, 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, have been established since 2000, and shall have bylaws
that require its members to comply with a code of ethics.
(B) If there is more than one professional society, association,
or other entity that meets the requirements of subparagraph (A), the
appointment shall rotate based on a four-year term between each of
the qualifying entities. The qualifying entity shall maintain its
appointment authority during the entirety of the four-year term
during which it holds the appointment authority. The order in which a
qualifying professional society, association, or other entity has
the authority to appoint shall be determined by alphabetical order
based on the full legal name of the entity as of January 1, 2014.
(10) The members appointed to the board in accordance with
paragraphs (1) to (9), inclusive, shall appoint three additional
members, at a duly held board meeting in accordance with the board's
bylaws. One of those appointees shall be an attorney licensed by the
State Bar of California, who has been practicing law for at least
three years and who at the time of appointment represents a city in
the state. One of those appointees shall represent a massage business
entity that has been operating in the state for at least three
years.
(h) Board member terms shall be for 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)
three hundred dollars ($300) . 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). The board may adopt additional policies and
procedures that provide greater transparency to certificate holders
and the public than required by the Bagley-Keene Open Meeting Act.
(k) Prior to holding a meeting to vote upon a proposal to change
the certification requirements or increase the certification fees,
the board shall provide at least 90 days' notice of the meeting,
including posting a notice on the council's Internet Web site, and
sending a notice either by regular mail or email to certificate
holders and affected applicants, in advance of the vote, unless at
least two-thirds of the board members concur that there is an active
threat to public safety and that voting at a meeting without prior
notice is required.
(l) If the board approves a change to the certification
requirements or an increase in the certification fees, the council
shall update all relevant areas of its Internet Web site and notify
all certificate holders and affected applicants by a notice sent
either by regular mail or email within 14 days of the board's action.
4603. Protection of the public shall be the highest priority for
the council in exercising its certification, registration,
disciplinary, disciplinary authority, 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 All 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, 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 , and has not violated
any of the provisions of this chapter .
(5) All fees required by the council have been paid.
(6) The council may issue a certificate to an applicant who meets
the qualifications of this chapter if he or she holds a current and
valid registration, certification, or license from any other state
whose licensure requirements meet or exceed those defined within this
chapter. If an applicant has received education at a school that is
not approved by the council, the council shall have the discretion to
give credit for comparable academic work completed by an applicant
in a program outside of California.
(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 is 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 an educational
program approved by the council that includes curricula
determined to be relevant by the council related to
massage management and related subjects totaling a minimum of
public protection not to exceed 50 hours, or the
credit unit equivalent, that incorporates health and
hygiene, and business and ethics appropriate school
assessment of student knowledge and skills . The 50
required hours may shall
be secured either from approved
schools or from a continuing education one
provider approved by the council to teach the educational
program required by this paragraph . The council shall
determine the relevant curricula and the total number of educat
ion hours, or credit unit equivalent, that shall be required
for certification pursuant to this paragraph.
(3) The applicant has successfully passed a background
investigation pursuant to Section 4606 and has not violated any
provision of this chapter .
(4) All fees required by the council have been paid.
(b) A person certified pursuant to this chapter as a massage
therapist, massage practitioner, or conditionally certified as a
massage practitioner who holds a valid and active certification and
is also a sole provider shall be issued certification as a sole
provider massage establishment operator upon written request and
payment of all fees required by the council, without having to meet
the other requirements of paragraph (2) of subdivision (a). The sole
provider massage establishment operator certification shall be valid
only as long as the certificate holder meets the definition of a sole
provider set forth in subdivision (m) of Section 4601. The
certificate shall terminate immediately, by operation of law without
further action, when the certificate holder no longer meets the
definition of a sole provider.
(b)
(c) 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 is suspended or revoked.
(c) An operator of a
(d) A massage establishment
operator 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)
(e) 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 accept applications to
issue any new certificates to practice as a certified massage
practitioner on or after January August
1, 2015.
(b) Certificates to practice as a certified massage practitioner
issued for applications accepted 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
renewed without any additional educational
requirements .
(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 is
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 by the council ,
complete and report to the council the completion of, at
least 30 hours of additional education per year from approved schools
or from continuing education providers approved by the
council , until he or she has completed a total of at
least 250 hours of education .
(b) A conditional certificate issued to any person pursuant
to this section 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 the time period specified in subdivision
(a) .
(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
shall 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 provides massage for compensation,
excluding those locations where massage is only provided on an
out-call basis, or is employed as a massage establishment operator. A
certificate holder also shall notify the council of his or her
primary email address, if any, and notify the council within 30 days
of a change of the primary email address .
4609. (a) It is a violation of this chapter for an applicant
or a certificate holder to commit any of the following acts
, the commission of which is grounds for the council to deny an
application for a certificate or to impose discipline on a
certificate holder :
(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,
certificate or practicing outside of the conditions of a
restricted license certificate .
(E) Providing massage of the genitals or anal region, or of female
breasts, for compensation without the written consent of the person
receiving the massage and supervision by a physician.
(2) Procuring or attempting to procure a certificate by fraud,
material misrepresentation, or mistake.
(3) Failing to fully disclose all information requested on the
application.
(3)
(4) 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)
(5) Impersonating a certificate holder, or permitting
or allowing a noncertified person to use a certificate.
(5)
(6) 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)
(7) 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
(8) Denial of licensure,
revocation, suspension, restriction, citation, or any
other disciplinary action against an applicant or certificate
holder 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 board . A
certified copy of the decision, order, or judgment
, or citation shall be conclusive evidence of these
actions.
(8)
(9) 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 or liability 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) Dressing while engaged in the practice of massage for
compensation in a manner that exposes the certificate holders breasts
or genitals, is transparent or see-through, or that otherwise
constitutes a violation of Section 314 of the Penal Code.
(10)
(11) 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
holder , 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
holder .
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,
disciplined pursuant to this chapter except according to
procedures satisfying that satisfy the
requirements of this section. Denial or discipline that is
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.
certificate.
(5) Taking other action as the council, as authorized by this
chapter or its bylaws, policies adopted by
the board, 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)
(d) 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)
(e) A procedure is fair and reasonable if the
procedures specified in subdivision (f) or (g) are followed or
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)
(f) (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 10 business
days.
(B) Notify any establishment or employer, whether public
or private, that the The council has in
its records as employing shall notify the clerk of
the city, county, or city and county when the certificate
holder that the certificate has been is
suspended pursuant to this section within 5
10 business days of the decision to suspend
.
(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the council may
shall permanently revoke the suspended
permit. However, the certificate shall remain suspended during any
appeal of the conviction certificate . The
council shall provide notice to the certificate holder , at the
address last filed with the council by a method providing delivery
confirmation, 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 the council's mailing
of the notice that the evidence of
conviction is incorrect either invalid
or that the conviction information is
under appeal otherwise erroneous .
(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 10 business
days.
(h)
(g) (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 within 10 business days
, 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 (2) .
(B) Notify by electronic mail email
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 10 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 10
business days.
(i)
(h) 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)
(i) An applicant, applicant or
certificate holder , or registered establishment
may challenge a denial or discipline decision
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 effective 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)
(j) This section governs only the procedures for denial
or discipline decision 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,"
"certified operator," or any other term, such as "licensed,"
"certified," "registered," "CMT," or "CMP,"
in any manner whatsoever 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
massage establishment operator, unless that person currently
holds an active and valid certificate issued by the council pursuant
to this chapter .
(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)
(2) 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 or,
massage practitioner, or that an establishment is registered
pursuant to this chapter massage establishment
operator .
(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 or enforce an ordinance 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 chapter .
(b) A city, county, or city and county may
shall not enact an ordinance pursuant
relating to Section 37101 of the Government Code that
requires a certificate holder or registered massage establishment to:
a certified massage therapist, certified massage
practitioner, or certified massage establishment operator that does
any of the following:
(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.
(B) An ordinance enacted pursuant to this subdivision shall
notinclude any of the following:
(i) A
(1) Imposes a requirement that a
certificate holder take or pass any test, medical examination, or
background check, or demonstrate comply with
educational experience requirements
beyond what is required by this chapter.
(ii)
(2) A prohibition against locked doors in a registered
massage establishment with two or more people working at the
establishment.
(iii) A
(3) Imposes a requirement that
a registered massage establishment provide additional
restroom, shower, or other facilities an individual
holding a certificate issued in accordance with this chapter
obtain any other license, permit, certificate, or other
authorization to provide massage for compensation .
(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.
(4) Imposes a dress code
requirement in excess of those already required of certificate
holders pursuant to paragraph (9) of subdivision (a) of Section 4608.
(5) Prohibits a certificate holder from performing massage for
compensation on the gluteal muscles, prohibits specific massage
techniques recognized by the board as legitimate, or imposes any
other specific restriction on professional practice beyond those set
forth in subparagraph (E) of paragraph (1) of subdivision (a) of
Section 4608.
(e)
(c) 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.
certificate.
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 holder , 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,
applicant or 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,
applicant or 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 , or provider of education for massage
establishment operators from which an applicant has obtained
the education required by this chapter meets the requirements of this
chapter.
(1) 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.
For purposes of this section and any other provision of this
chapter that authorizes the council is to receive factual information
as a condition of taking any action, the council may authority to
conduct oral interviews of the applicant and others or conduct any
investigation deemed necessary to establish that the information
received is accurate and satisfies the criteria established by this
chapter.
(b) The council may charge a reasonable fee for inspection or
approval of schools, continuing education providers, and massage
establishment operator education providers ,
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 for schools, continuing
education providers, massage establishment operator education
providers, curriculum and programs for schools, continuing education
classes, and programs for massage establishment operator education
providers , 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
establishment operators 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 , counties, and 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
(b) 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.
(c) 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.
4620. (a) On or before June 1, 2016, for the time period
beginning on January 1, 2015, 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 , legitimate techniques
of massage, 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)
Legislature .
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.
SEC. 4. Section 51034 of the Government
Code is amended to read:
51034. (a) The Legislature in enacting this
chapter recognizes the existing power of a city or county to
regulate a lawful massage business pursuant to Section 37101, or
pursuant to Section 16000 or 16100 of the Business and Professions
Code, or under Section 7 of Article XI of the California
Constitution. Nothing
(b) Nothing contained in this
chapter shall be a limitation on that existing power or on the
existing authority of a city to license for revenue
purposes, nor shall anything contained purposes
.
(c) Nothing contained in this
chapter shall authorize a city, county, or city and county
to prohibit a do any of the following:
(1) Prohibit a person of one sex
from engaging in the massage of a person of the other sex.
(2) Define a massage establishment as an adult entertainment
business, or otherwise regulate a massage establishment as adult
entertainment.
(3) Require a massage establishment to have windows or walls that
do not extend from the floor to ceiling, or have other internal
physical structures including, windows, that interfere with a client'
s reasonable expectation of privacy.
(4) Impose client draping requirements that extend beyond the
covering of genitalia and female breasts, or otherwise mandate that
the client wear special clothing.
(5) Prohibit a massage establishment from locking its external
doors when there is only one individual working on the premises and
that individual is engaged in providing massage for compensation to a
client.
(6) Require a massage establishment to post any notice in an area
that may be viewed by clients that contains explicit language
describing sexual acts, mentions genitalia, or specific contraception
devices.
SECTION 1. (a) 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.
(b) It is the intent of the Legislature that broad control over
land use in regulating massage establishments be returned to local
governments so that they may manage those establishments in the best
interest of the individual community, and that the requirements and
practice of the profession of massage therapy remain a matter of
statewide concern, regulation, and oversight.
(c) It is further the intent of the Legislature that local
governments, law enforcement, nonprofit stakeholders, the massage
industry, and massage professionals work together going forward to
improve communication and share information to further increase the
value of statewide certification, and also to develop a model
ordinance reflecting best practices in massage regulation for cities
and counties to adopt that will respect local control, patient
privacy, and the dignity of the profession of massage therapy.
SEC. 2. Section 460 of the Business and
Professions Code is amended to read:
460. (a) No city or county shall prohibit a person or group of
persons, authorized by one of the agencies
boards in the Department of Consumer Affairs or a
regulatory body established pursuant to this code by a license,
certificate, or other such means to engage in a particular business,
from engaging in that business, occupation, or profession or any
portion thereof.
(b) No city, county, or city and county shall prohibit a healing
arts professional licensed with the state under Division 2
(commencing with Section 500) from engaging in any act or performing
any procedure that falls within the professionally recognized scope
of practice of that licensee.
(1) This subdivision shall not be construed to prohibit the
enforcement of a local ordinance in effect prior to January 1, 2010,
related to any act or procedure that falls within the professionally
recognized scope of practice of a healing arts professional licensed
under Division 2 (commencing with Section 500).
(2) This subdivision shall not be construed to prevent a city,
county, or city and county from adopting or enforcing any local
ordinance governing zoning, business licensing, or reasonable health
and safety requirements for establishments or businesses of a healing
arts professional licensed under Division 2 (commencing with Section
500).
(c) Nothing in this section shall prohibit any city, county, or
city and county from levying a business license tax solely for
revenue purposes, nor any city or county from levying a license tax
solely for the purpose of covering the cost of regulation.
SEC. 2. SEC. 3. 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. location where massage
is performed for compensation, excluding those locations where
massage is only provided on an out-call basis.
(g) "Massage practitioner" means a person who is certified by the
council under pursuant to 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)
(i) "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 meets the
requirements of Section 4604.1 . An operator need not be an
owner of the establishment or a certified massage therapist or
practitioner .
(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.
(j) "Sole provider" means a massage business where the owner owns
100 percent of the business, is the only person who provides massage
services for compensation for that business pursuant to a valid and
active certificate issued in accordance with this chapter, and has no
other employees.
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 , formation of a contractual relationship, 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 is authorized to
determine that whether 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 September 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 unless a
qualifying associations that choose
association chooses 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 At 12 p.m. Pacific Standard
Time on September 1, 2015, the term of each member of the
board of directors established pursuant to subdivision (f)
shall be dissolved terminate , and the
council terms of 13 new members of the board
of directors who shall instead be
governed by a board of directors comprised of 11 members
chosen in the following manner , shall begin :
(1) One member shall be a representative of the League of
California Cities, unless that entity chooses not to exercise this
right of selection to appoint .
(2) One member shall be a representative of the California Police
Chiefs Association, unless that entity chooses not to exercise this
right of selection to appoint .
(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 to appoint .
(4) One member shall be appointed to the board by the
Senate Committee on Rules, who shall be a member of the public
a representative of an antihuman trafficking
organization to be determined by that entity unless that entity
chooses not to exercise this right to appointment .
(5) One member shall be appointed to
the board by the Speaker of the Assembly, who
shall be a member of the public Office of the
Chancellor of the California Community Colleges, unless that office
chooses not to exercise this right of appointment. The appointee
shall not be participating in any massage therapy certificate or
degree program .
(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.
(6) Two members shall be appointed by the Director of Consumer
Affairs, one of whom shall be a public member and one of whom shall
be a California-certified massage therapist or practitioner who has
been practicing for at least three years, unless the director chooses
not to exercise this right of appointment.
(7) One member appointed by the California Association of Private
Postsecondary Schools.
(8) One representative shall be appointed by the American Massage
Therapy Association, California Chapter, who shall be a
California-certified massage therapist or massage practitioner who is
a California resident and who has been practicing massage for at
least three years.
(9) (A) One representative, who shall be a certified massage
therapist or a certified massage practitioner who is a California
resident who has practiced massage for at least three years prior to
the appointment, selected by a professional society, association, or
other entity which membership is comprised of massage therapist
professionals, 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, have been established since 2000, and shall have bylaws
that require its members to comply with a code of ethics.
(B) If there is more than one professional society, association,
or other entity that meets the requirements of subparagraph (A), the
appointment shall rotate based on a four-year term between each of
the qualifying entities. The qualifying entity shall maintain its
appointment authority during the entirety of the four-year term
during which it holds the appointment authority. The order in which a
qualifying professional society, association, or other entity has
the authority to appoint shall be determined by alphabetical order
based on the full legal name of the entity as of January 1, 2014.
(10) The members appointed to the board in accordance with
paragraphs (1) to (9), inclusive, shall appoint three additional
members, at a duly held board meeting in accordance with the board's
bylaws. One of those appointees shall be an attorney licensed by the
State Bar of California, who has been practicing law for at least
three years and who at the time of appointment represents a city in
the state. One of those appointees shall represent a massage business
entity that has been operating in the state for at least three
years.
(h) Board member terms shall be for 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)
three hundred dollars ($300) . 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). The board may adopt additional policies and
procedures that provide greater transparency to certificate holders
and the public than required by the Bagley-Keene Open Meeting Act.
(k) Prior to holding a meeting to vote upon a proposal to change
the certification requirements or increase the certification fees,
the board shall provide at least 90 days' notice of the meeting,
including posting a notice on the council's Internet Web site, and
sending a notice either by regular mail or email to certificate
holders and affected applicants, in advance of the vote, unless at
least two-thirds of the board members concur that there is an active
threat to public safety and that voting at a meeting without prior
notice is required.
(l) If the board approves a change to the certification
requirements or an increase in the certification fees, the council
shall update all relevant areas of its Internet Web site and notify
all certificate holders and affected applicants by a notice sent
either by regular mail or email within 14 days of the board's action.
4603. Protection of the public shall be the highest priority for
the council in exercising its certification, registration,
disciplinary, disciplinary authority, 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 All 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, 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 , and has not violated
any of the provisions of this chapter .
(5) All fees required by the council have been paid.
(6) The council may issue a certificate to an applicant who meets
the qualifications of this chapter if he or she holds a current and
valid registration, certification, or license from any other state
whose licensure requirements meet or exceed those defined within this
chapter. If an applicant has received education at a school that is
not approved by the council, the council shall have the discretion to
give credit for comparable academic work completed by an applicant
in a program outside of California.
(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 is 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 an educational
program approved by the council that includes curricula
determined to be relevant by the council related to
massage management and related subjects totaling a minimum of
public protection not to exceed 50 hours, or the
credit unit equivalent, that incorporates health and
hygiene, and business and ethics appropriate school
assessment of student knowledge and skills . The 50
required hours may shall
be secured either from approved
schools or from a continuing education one
provider approved by the council to teach the educational
program required by this paragraph . The council shall
determine the relevant curricula and the total number of educat
ion hours, or credit unit equivalent, that shall be required
for certification pursuant to this paragraph.
(3) The applicant has successfully passed a background
investigation pursuant to Section 4606 and has not violated any
provision of this chapter .
(4) All fees required by the council have been paid.
(b) A person certified pursuant to this chapter as a massage
therapist, massage practitioner, or conditionally certified as a
massage practitioner who holds a valid and active certification and
is also a sole provider shall be issued certification as a sole
provider massage establishment operator upon written request and
payment of all fees required by the council, without having to meet
the other requirements of paragraph (2) of subdivision (a). The sole
provider massage establishment operator certification shall be valid
only as long as the certificate holder meets the definition of a sole
provider set forth in subdivision (m) of Section 4601. The
certificate shall terminate immediately, by operation of law without
further action, when the certificate holder no longer meets the
definition of a sole provider.
(b)
(c) 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 is suspended or revoked.
(c) An operator of a
(d) A massage establishment
operator 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)
(e) 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 accept applications to
issue any new certificates to practice as a certified massage
practitioner on or after January August
1, 2015.
(b) Certificates to practice as a certified massage practitioner
issued for applications accepted 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
renewed without any additional educational
requirements .
(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 is
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 by the council ,
complete and report to the council the completion of, at
least 30 hours of additional education per year from approved schools
or from continuing education providers approved by the
council , until he or she has completed a total of at
least 250 hours of education .
(b) A conditional certificate issued to any person pursuant
to this section 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 the time period specified in subdivision
(a) .
(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
shall 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 provides massage for compensation,
excluding those locations where massage is only provided on an
out-call basis, or is employed as a massage establishment operator. A
certificate holder also shall notify the council of his or her
primary email address, if any, and notify the council within 30 days
of a change of the primary email address .
4609. (a) It is a violation of this chapter for an applicant
or a certificate holder to commit any of the following acts
, the commission of which is grounds for the council to deny an
application for a certificate or to impose discipline on a
certificate holder :
(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,
certificate or practicing outside of the conditions of a
restricted license certificate .
(E) Providing massage of the genitals or anal region, or of female
breasts, for compensation without the written consent of the person
receiving the massage and supervision by a physician.
(2) Procuring or attempting to procure a certificate by fraud,
material misrepresentation, or mistake.
(3) Failing to fully disclose all information requested on the
application.
(3)
(4) 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)
(5) Impersonating a certificate holder, or permitting
or allowing a noncertified person to use a certificate.
(5)
(6) 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)
(7) 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
(8) Denial of licensure,
revocation, suspension, restriction, citation, or any
other disciplinary action against an applicant or certificate
holder 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 board . A
certified copy of the decision, order, or judgment
, or citation shall be conclusive evidence of these
actions.
(8)
(9) 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 or liability 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) Dressing while engaged in the practice of massage for
compensation in a manner that exposes the certificate holders breasts
or genitals, is transparent or see-through, or that otherwise
constitutes a violation of Section 314 of the Penal Code.
(10)
(11) 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
holder , 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
holder .
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,
disciplined pursuant to this chapter except according to
procedures satisfying that satisfy the
requirements of this section. Denial or discipline that is
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.
certificate.
(5) Taking other action as the council, as authorized by this
chapter or its bylaws, policies adopted by
the board, 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)
(d) 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)
(e) A procedure is fair and reasonable if the
procedures specified in subdivision (f) or (g) are followed or
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)
(f) (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 10 business
days.
(B) Notify any establishment or employer, whether public
or private, that the The council has in
its records as employing shall notify the clerk of
the city, county, or city and county when the certificate
holder that the certificate has been is
suspended pursuant to this section within 5
10 business days of the decision to suspend
.
(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the council may
shall permanently revoke the suspended
permit. However, the certificate shall remain suspended during any
appeal of the conviction certificate . The
council shall provide notice to the certificate holder , at the
address last filed with the council by a method providing delivery
confirmation, 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 the council's mailing
of the notice that the evidence of
conviction is incorrect either invalid
or that the conviction information is
under appeal otherwise erroneous .
(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 10 business
days.
(h)
(g) (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 within 10 business days
, 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 (2) .
(B) Notify by electronic mail email
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 10 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 10
business days.
(i)
(h) 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)
(i) An applicant, applicant or
certificate holder , or registered establishment
may challenge a denial or discipline decision
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 effective 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)
(j) This section governs only the procedures for denial
or discipline decision 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,"
"certified operator," or any other term, such as "licensed,"
"certified," "registered," "CMT," or "CMP,"
in any manner whatsoever 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
massage establishment operator, unless that person currently
holds an active and valid certificate issued by the council pursuant
to this chapter .
(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)
(2) 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 or,
massage practitioner, or that an establishment is registered
pursuant to this chapter massage establishment
operator .
(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 or enforce an ordinance 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 chapter .
(b) A city, county, or city and county may
shall not enact an ordinance pursuant
relating to Section 37101 of the Government Code that
requires a certificate holder or registered massage establishment to:
a certified massage therapist, certified massage
practitioner, or certified massage establishment operator that does
any of the following:
(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.
(B) An ordinance enacted pursuant to this subdivision shall
notinclude any of the following:
(i) A
(1) Imposes a requirement that a
certificate holder take or pass any test, medical examination, or
background check, or demonstrate comply with
educational experience requirements
beyond what is required by this chapter.
(ii)
(2) A prohibition against locked doors in a registered
massage establishment with two or more people working at the
establishment.
(iii) A
(3) Imposes a requirement that
a registered massage establishment provide additional
restroom, shower, or other facilities an individual
holding a certificate issued in accordance with this chapter
obtain any other license, permit, certificate, or other
authorization to provide massage for compensation .
(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.
(4) Imposes a dress code
requirement in excess of those already required of certificate
holders pursuant to paragraph (9) of subdivision (a) of Section 4608.
(5) Prohibits a certificate holder from performing massage for
compensation on the gluteal muscles, prohibits specific massage
techniques recognized by the board as legitimate, or imposes any
other specific restriction on professional practice beyond those set
forth in subparagraph (E) of paragraph (1) of subdivision (a) of
Section 4608.
(e)
(c) 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.
certificate.
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 holder , 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,
applicant or 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,
applicant or 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 , or provider of education for massage
establishment operators from which an applicant has obtained
the education required by this chapter meets the requirements of this
chapter.
(1) 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.
For purposes of this section and any other provision of this
chapter that authorizes the council is to receive factual information
as a condition of taking any action, the council may authority to
conduct oral interviews of the applicant and others or conduct any
investigation deemed necessary to establish that the information
received is accurate and satisfies the criteria established by this
chapter.
(b) The council may charge a reasonable fee for inspection or
approval of schools, continuing education providers, and massage
establishment operator education providers ,
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 for schools, continuing
education providers, massage establishment operator education
providers, curriculum and programs for schools, continuing education
classes, and programs for massage establishment operator education
providers , 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
establishment operators 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 , counties, and 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
(b) 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.
(c) 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.
4620. (a) On or before June 1, 2016, for the time period
beginning on January 1, 2015, 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 , legitimate techniques
of massage, 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)
Legislature .
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.
SEC. 4. Section 51034 of the Government
Code is amended to read:
51034. (a) The Legislature in enacting this
chapter recognizes the existing power of a city or county to
regulate a lawful massage business pursuant to Section 37101, or
pursuant to Section 16000 or 16100 of the Business and Professions
Code, or under Section 7 of Article XI of the California
Constitution. Nothing
(b) Nothing contained in this
chapter shall be a limitation on that existing power or on the
existing authority of a city to license for revenue
purposes, nor shall anything contained purposes
.
(c) Nothing contained in this
chapter shall authorize a city, county, or city and county
to prohibit a do any of the following:
(1) Prohibit a person of one sex
from engaging in the massage of a person of the other sex.
(2) Define a massage establishment as an adult entertainment
business, or otherwise regulate a massage establishment as adult
entertainment.
(3) Require a massage establishment to have windows or walls that
do not extend from the floor to ceiling, or have other internal
physical structures including, windows, that interfere with a client'
s reasonable expectation of privacy.
(4) Impose client draping requirements that extend beyond the
covering of genitalia and female breasts, or otherwise mandate that
the client wear special clothing.
(5) Prohibit a massage establishment from locking its external
doors when there is only one individual working on the premises and
that individual is engaged in providing massage for compensation to a
client.
(6) Require a massage establishment to post any notice in an area
that may be viewed by clients that contains explicit language
describing sexual acts, mentions genitalia, or specific contraception
devices.
