Bill Text: CA AB1147 | 2013-2014 | Regular Session | Chaptered
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-Chaptered.html
BILL NUMBER: AB 1147 CHAPTERED
BILL TEXT
CHAPTER 406
FILED WITH SECRETARY OF STATE SEPTEMBER 18, 2014
APPROVED BY GOVERNOR SEPTEMBER 18, 2014
PASSED THE SENATE AUGUST 26, 2014
PASSED THE ASSEMBLY AUGUST 29, 2014
AMENDED IN SENATE AUGUST 22, 2014
AMENDED IN SENATE AUGUST 20, 2014
AMENDED IN SENATE AUGUST 4, 2014
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
(Coauthors: Assembly Members Chau, Gatto, and Muratsuchi)
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, 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, establish an interim board of directors to govern
the council until September 15, 2015, and 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
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 increases those fees.
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 develop policies, procedures, rules, or bylaws governing
the approval and unapproval of schools that provide education
required for certification, as specified.
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 or enforcing an ordinance
that conflicts with these provisions or other corresponding specified
provisions. However, the bill would authorize a city, county, or
city and county to adopt or enforce local ordinances that govern
zoning, business licensing, or reasonable health and safety
requirements for establishments or businesses of a licensed or
certified healing arts professional, including a certified massage
therapist. The bill would also make clarifying and conforming changes
regarding local regulation of massage establishments or businesses.
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 PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 460 of the Business and Professions Code is
amended to read:
460. (a) No city, county, or city and county shall prohibit a
person or group of persons, authorized by one of the agencies in the
Department of Consumer Affairs or an entity established pursuant to
this code by a license, certificate, or other means to engage in a
particular business, from engaging in that business, occupation, or
profession or any portion 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.
(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).
(c) This 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).
(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. 2. Chapter 10.5 (commencing with Section 4600) is added to
Division 2 of the Business and Professions Code, to read:
CHAPTER 10.5. MASSAGE THERAPY ACT
4600. This chapter shall be known and may be cited as the Massage
Therapy Act. Whenever a reference is made to the Massage Therapy Act
by any statute, it shall be construed to refer to this chapter.
4600.5. (a) It is the intent of the Legislature that this act
enable consumers and local governments to more easily identify
certified massage professionals, provide for consistent statewide
certification and oversight of massage professionals, ensure that
schools approved by the council that are teaching massage provide a
high level of training, assist local governments and law enforcement
in meeting their duty to maintain the highest standards of conduct in
massage establishments by vetting and disciplining certificate
holders, 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 vested in local
governments so that they may manage those establishments in the best
interests 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 the intent of the Legislature that local governments
impose and enforce only reasonable and necessary fees and
regulations, in keeping with the requirements of existing law and
being mindful of the need to protect legitimate business owners and
massage professionals, particularly sole providers, during the
transition period after this act becomes law and thereafter for the
sake of developing a healthy and vibrant local economy.
(d) It is 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, to collaborate in the implementation of this
act, and 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.
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 unapproved 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 fixed
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) "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, procedures, rules, and bylaws 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.
(e) The council is authorized to determine whether the information
provided to the council in relation to the certification of an
applicant 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. The
applicant has the burden to prove that he or she is entitled to
certification.
(f) Until September 15, 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 to the council who have knowledge of the
massage industry or can bring needed expertise to the operation of
the council for purposes of complying with Section 4603.
(g) At 12 p.m. Pacific standard time on September 15, 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 "anti-human
trafficking" organization to be determined by the council. This
organization shall appoint one member, unless the organization
chooses not to exercise this right to appoint.
(5) One member shall be appointed by the Office of the Chancellor
of the California Community Colleges, unless that office chooses not
to exercise this right to appoint.
(6) One member shall be a member of the public appointed by the
Director of the Department of Consumer Affairs, unless the director
chooses not to exercise this right to appoint.
(7) One member shall be appointed by the California Association of
Private Postsecondary Schools, unless that entity chooses not to
exercise this right to appoint.
(8) One member 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, unless that entity chooses not to exercise this right to
appoint.
(9) One member shall be a public health official representing a
city, county, city and county, or state health department, to be
determined by the council. The city, county, city and county, or
state health department chosen, shall appoint one member unless that
entity chooses not to exercise this right to appoint.
(10) (A) One member 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.
(11) The members appointed to the board in accordance with
paragraphs (1) to (10), 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. The council shall establish in its bylaws a process for
appointing an additional member, provided that the member has
knowledge of the massage industry or can bring needed expertise to
the operation of the council for purposes of complying with Section
4603.
(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 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 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 necessary. However, the
board shall not waive the requirements of subdivision (j).
(l) If the board approves 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 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 and disciplinary
authority, and any 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) The council shall not accept applications to issue
any new certificates to practice as a certified massage practitioner
on or after January 1, 2015.
(b) Certificates to practice as a certified massage practitioner
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.
4604.2. (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 4604.1, 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.
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
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 materials about applicants and certificate holders
from a city, county, or city and county.
4607. The council may discipline an owner or operator of a
massage business or establishment who is certified pursuant to this
chapter for the conduct of all individuals providing massage for
compensation on the business premises.
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. 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.
(F) Providing massage of female breasts without the written
consent of the person receiving the massage and a referral from a
licensed California health care provider.
(2) Procuring or attempting to procure a certificate by fraud,
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. 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, or while visible to clients in a massage establishment,
in any of the following:
(A) Attire that is transparent, see-through, or substantially
exposes the certificate holder's undergarments.
(B) Swim attire, if not providing a water-based massage modality
approved by the council.
(C) A manner that exposes the certificate holder's breasts,
buttocks, or genitals.
(D) A manner that constitutes a violation of Section 314 of the
Penal Code.
(E) A manner that is otherwise deemed by the council to constitute
unprofessional attire based on the custom and practice of the
profession in California.
(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.
(c) The council shall deny an application for a certificate, or
revoke the certificate of a certificate holder, if the applicant or
certificate holder is 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 is required to register
as a sex offender in another state.
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 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 deems proper, as authorized
by this chapter or policies, procedures, rules, or bylaws adopted by
the board.
(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 publicly 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 or
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
(11) 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) Provide notification of the suspension by email to the clerk
or other designated contact of the city, county, or city and county
in which the certificate holder lives or works, pursuant to the
council's records, within 10 business days.
(C) Provide notification of the suspension by email to any
establishment or employer, whether public or private, that the
council has in its records as employing the certificate holder,
within 10 business days.
(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 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 or certificate
holder, 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" or "certified massage practitioner," 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 practitioner, 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.
(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 or enforce an ordinance that conflicts
with this chapter or Section 51034 of the Government Code.
(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 or massage establishments, the council shall provide
information concerning an applicant or a certificate holder,
including, but not limited to, any of the following:
(1) The current status of an application or certificate.
(2) Any history of disciplinary actions.
(3) The home and work addresses of the applicant or certificate
holder.
(4) The name and home and work addresses of any person whose
certificate has been suspended and the length of the suspension, if
the work address is located within the jurisdiction of agency making
the request.
(5) 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, any of the
following:
(1) The current status of any local application or permit.
(2) Any history of legal or administrative action taken against
the applicant or certificate holder.
(3) 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.
(4) The home and work addresses of the applicant or certificate
holder.
(5) 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. The council shall have the responsibility to review any
information received pursuant to this subdivision and to take any
actions authorized by this chapter that are warranted by that
information.
4615. (a) The council shall have the responsibility to determine
whether the school 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.
(2) For purposes of this section and any other provision of this
chapter that authorizes the council to receive factual information as
a condition of taking any action, the council may 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 shall develop policies, procedures, rules, or
bylaws governing the requirements and process for the approval and
unapproval of schools consistent with Section 4601, including any
corrective action required to return a school to approved status.
These policies, procedures, rules, or bylaws shall address topics
including, but not limited to, what constitutes an acceptable
curriculum, facility requirements, student-teacher ratios, clinical
practice requirements, and provisions for the acceptance of
accreditation from a recognized accreditation body or other form of
acceptance. The council shall exercise its authority to approve and
unapprove schools and specify corrective action in keeping with the
purposes set forth in Section 4603.
(c) The council may charge a reasonable fee for the inspection or
approval of schools, provided the fees do not exceed the reasonable
cost of the inspection or approval process.
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 and massage therapists 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) The status of the council's progress towards revising the
school approval process.
(4) 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 and unapproved and a brief
description of the grounds for each decision to unapprove.
(E) The total number of complaints about certificate holders
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. 3. 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 or enforce 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 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 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 person certified pursuant to
Chapter 10.5 (commencing with Section 4600) of Division 2 of the
Business and Professions Code 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 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. However, this paragraph shall not be
construed to prohibit a city, county, or city and county from
requiring by ordinance that a massage business or establishment
obtain a license, permit, certificate, or other authorization in
order to operate lawfully within the jurisdiction.
(9) Impose a dress code requirement on a person certified pursuant
to Chapter 10.5 (commencing with Section 4600) of Division 2 of the
Business and Professions Code in excess of those already imposed
pursuant to paragraph (10) of subdivision (a) of Section 4609 of the
Business and Professions Code.
(10) Prohibit a person certified pursuant to Chapter 10.5
(commencing with Section 4600) of Division 2 of the Business and
Professions Code 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.
