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 JULY 1, 2014
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, 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 issued pursuant to these
provisions be subject to renewal every 2 years, except as provided.
The bill 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 to discipline a certificate 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
or certificate 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 or other corresponding
specified provisions . 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 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, provide for a self-funded nonprofit
oversight body to certify massage professionals, 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 city, county, or city
and county shall prohibit a person or group of persons,
authorized by one of the boards agencies
in the Department of Consumer Affairs or a regulatory
body established or an entity 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 of that business, occupation, or
profession .
(b) (1) No city, county, or city and county
shall prohibit a healing arts professional licensed with the state
under Division 2 (commencing with Section 500) or licensed or
certified by an entity established pursuant to this code from
engaging in any act or performing any procedure that falls within the
professionally recognized scope of practice of that licensee.
(1)
( 2) 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)
(c) This subdivision section
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)
or licensed or certified by an entity established under this
code or a person or group of persons described in subdivision (a)
.
(c)
(d) 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. 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 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 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) "Operator" means a person, whether owner or nonowner, who
meets the requirements of Section 4604.1. An operator need not be an
owner of the establishment or a certified massage therapist or
practitioner.
(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 or independent contractors .
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, hiring 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
certificate .
(e) The council is authorized to determine 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 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 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, unless a qualifying 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) 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 terminate, and the terms of 13 new members of
the board of directors who shall be 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 to appoint.
(2) One member shall be a representative of the California Police
Chiefs Association, unless that entity chooses not to exercise this
right 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 to appoint.
(4) One member shall be a representative of an antihuman
trafficking antihuman-trafficking organization
to be determined by that entity unless that entity chooses not to
exercise this right to appointment.
(5) One member appointed by the 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) 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 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 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) All of the 500 hours shall be from schools approved by the
council.
(3) The applicant has passed a massage and bodywork competency
assessment examination that meets generally recognized psychometric
principles and standards and that is approved by the council. The
successful completion of this examination may have been accomplished
before the date the council is authorized by this chapter to begin
issuing certificates.
(4) The applicant has successfully passed a background
investigation pursuant to Section 4606, 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 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 public protection not to
exceed 50 hours, or the credit unit equivalent, that incorporates
appropriate school assessment of student knowledge and skills. The
required hours shall be secured from 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 education 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.
(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 is suspended or
revoked.
(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.
(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 August 1, 2015.
(b) Certificates to practice as a certified massage practitioner
for applications accepted prior to January 1, 2015, may be renewed
without any additional educational requirements.
(c) A massage practitioner certificate and any identification card
issued by the council, shall be surrendered to the council by any
certificate holder whose certificate 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 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. Except as otherwise provided, a certification issued
pursuant to this chapter shall be subject to renewal every two years
in the manner prescribed by the council. A certificate 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 .
4606. (a) Prior to issuing a certificate 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 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 holders
from a city, county, or city and county.
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 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 certificate or practicing
outside of the conditions of a restricted 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.
(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.
(5) Impersonating a certificate holder, or permitting or allowing
a noncertified person to use a certificate.
(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.
(7) Committing any fraudulent, dishonest, or corrupt act that is
substantially related to the qualifications or duties of a
certificate holder.
(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. A certified copy of the
decision, order, judgment, or citation shall be conclusive evidence
of these actions.
(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.
(10) Dressing while engaged in the practice of massage for
compensation in a manner that exposes the certificate
holders holder's breasts or genitals, is
transparent or see-through, or that otherwise constitutes a violation
of Section 314 of the Penal Code.
(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.
(b) The council may deny an application for a certificate for the
commission of any of the acts described in subdivision (a). The
council may also discipline a certificate holder, in any manner
permitted by this chapter, for the commission of any of those acts by
a certificate holder.
4610. (a) An applicant for a certificate shall not be denied a
certificate, and a certificate holder shall not be disciplined
pursuant to this chapter except according to procedures 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 by any, or a
combination, of the following methods:
(1) Placing the certificate holder on probation, which may include
limitations or conditions on practice.
(2) Suspending the certificate 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.
(5) Taking other action as the council, as authorized by this
chapter or policies adopted by the board, deems proper.
(c) The council may issue an initial certificate on probation,
with specific terms and conditions, to any applicant.
(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.
(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, 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 the proposed denial or
discipline should go into effect.
(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 10 business days.
(B) The council shall notify the clerk of the city, county, or
city and county when the certificate is suspended pursuant to this
section within 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 shall
permanently revoke the suspended 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 the council'
s mailing of the notice that the conviction is either invalid or that
the information is 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 10 business days.
(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 (2).
(B) Notify by 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 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 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 10 business days.
(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 applicant or certificate
holder shown on the council's records.
(i) An applicant or certificate holder 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.
(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," "CMT," or "CMP," in any manner whatsoever that implies
or suggests that the person is certified as a massage therapist or
massage establishment operator, unless that person currently holds an
active and valid certificate issued by the council pursuant to this
chapter.
(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, massage practitioner, or 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
or Section 51034 of the Government Code .
(b) A city, county, or city and county shall not enact an
ordinance relating to a certified massage therapist, certified
massage practitioner, or certified massage establishment operator
that does any of the following:
(1) Imposes a requirement that a certificate holder take or pass
any test, medical examination, or background check, or comply with
educational requirements beyond what is required by this chapter.
(2) A prohibition against locked doors in a registered massage
establishment with two or more people working at the establishment.
(3) Imposes a requirement that 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.
(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.
(c)
( b) 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.
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, the council shall provide information concerning a
certificate holder, including, but not limited to, the current status
of the certificate, any history of disciplinary actions taken
against the certificate holder, the home and work addresses of the
applicant or certificate holder, 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 or
certificate holder, 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, 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, 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 and review that information in a timely
manner.
4615. (a) The council shall have the responsibility to determine
whether the school, 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.
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. 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 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.
4619. (a) This chapter shall be liberally construed to effectuate
its purposes.
(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 applications, and a
brief description of the grounds for each decision.
(B) The annual number of suspended, revoked, or otherwise
disciplined certificates, 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.
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.
(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. A city, county, or city and county shall
not enact an ordinance that conflicts with the provisions of this
section or Chapter 10.5 (commencing with Section 4600) of
Division 2 of the Business and Professions Code.
(c) Nothing contained in this chapter shall authorize a city,
county, or city and county to 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, 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 if the massage establishment
is a business entity owned by one individual with one or
no employees or independent contractors .
(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.
(7) Impose a requirement that a certificate holder take any test,
medical examination, or background check or comply with education
requirements beyond what is required by Chapter 10.5 (commencing with
Section 4600) of Division 2 of the Business and Professions Code.
(8) Impose a requirement that an individual, other than a sole
proprietor, holding a certificate issued in accordance with Chapter
10.5 (commencing with Section 4600) of Division 2 of the Business and
Professions Code, obtain any other license, permit, certificate, or
other authorization to provide massage for compensation.
(9) Impose a dress code requirement in excess of those already
imposed on a certificate holder pursuant to paragraph (10) of
subdivision (a) of Section 4609 of the Business and Professions Code.
(10) Prohibit a certificate holder from performing massage for
compensation on the gluteal muscles, prohibit specific massage
techniques recognized by the California Massage Therapy Council as
legitimate, or impose any other specific restriction on professional
practice beyond those set forth in subparagraph (E) of paragraph (1)
of subdivision (a) of Section 4609 of the Business and Professions
Code, except as authorized by Section 460 of the Business and
Professions Code.
