Bill Text: CA AB1747 | 2013-2014 | Regular Session | Amended
Bill Title: Massage therapy.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2014-04-29 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB1747 Detail]
Download: California-2013-AB1747-Amended.html
BILL NUMBER: AB 1747 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Holden
FEBRUARY 14, 2014
An act to amend Sections 4600.5, 4602, and 4612 of, and to
add Section 4601.1 to, the Business and Professions Code, and to
amend Sections 51030 and 51032 of, and to add Section 51032.3 to, the
Government Code, relating to human trafficking
massage therapy .
LEGISLATIVE COUNSEL'S DIGEST
AB 1747, as amended, Holden. Human trafficking.
Massage therapy.
(1) Existing law, until January 1, 2015, creates the California
Massage Therapy Council and provides for the voluntary certification
of massage practitioners and massage therapists by the council.
Existing law specifies the requirements for the council to issue to
an applicant a certificate as a massage practitioner or massage
therapist, including completion of a curricula in massage and related
subjects at an approved school. Existing law requires the council to
immediately suspend, on an interim basis, the certificate of a
certificate holder, if the council receives notice that the
certificate holder has been arrested for and charged with, specified
crimes, including soliciting or engaging in an act of prostitution or
an act punishable as a sexually related crime.
This bill would make the records of the council open to public
inspection pursuant to the California Public Records Act. The bill
would require an approved or registered school to notify its students
if the council has removed council approval of the school. The bill
would also require the council to notify the city, county, or city
and county where a certificate holder is operating when the council
has revoked a massage certificate.
(2) Existing law authorizes a city, county, or city and county to
charge a massage business or establishment a business licensing fee
that is no higher than the lowest fee that is applied to other
individuals and businesses providing professional services, as
defined. Existing law prohibits a local building code or physical
facility requirements applicable to a massage business or
establishment from requiring an unlocked door when there is no staff
available to ensure security of clients and massage staff who are
behind closed doors. Existing law makes an owner or operator of a
massage business or establishment who is a certificate holder
responsible for the conduct of all employees or independent
contractors working on the business premises.
This bill would, instead, authorize a city, county, or city and
county to charge a massage business or establishment a business
licensing fee that is no higher than the average fee that is applied
to other individuals and businesses providing professional services.
The bill would delete the prohibition against an ordinance requiring
an unlocked door as described above. The bill would require an owner
or operator to be responsible, as described above, regardless of
whether the owner or operator is a certificate holder.
(3) Existing law authorizes a city, county, or city and county to
enact an ordinance that provides for the licensing and regulation of
the business of massage.
This bill would expressly authorize the ordinance to prohibit an
individual or entity from operating a massage business without a
valid massage business license, as defined, to require that, during a
massage business' operating hours, a certificate holder be present,
the massage business display a list of its employees and independent
contractors certificate holders, and that each employee or
independent contractor present his or her state-issued identification
card or United States passport to a law enforcement officer upon
request. The bill would also expressly authorize the ordinance to
require a massage business to provide the list of certificate holders
to the enacting body, and to prohibit sexual conduct at a massage
business' premises. The bill would require the legislative body to
transmit a copy of the ordinance to the council.
(4) Existing law authorizes a licensing body to deny a license if
there is proof that the massage personnel, owners, and operators have
been convicted of specified crimes, including soliciting or engaging
in an act of prostitution.
This bill would authorize a licensing body to deny a local massage
business license if the council or licensing body of another
jurisdiction has revoked the applicant's massage certificate or
massage business license, respectively, the council has disciplined
the applicant for unprofessional conduct or other specified acts, or
the massage business is located where a previous massage business was
located and the massage business license of that previous massage
business was revoked.
This bill would authorize a local licensing body to suspend a
massage business license if the owner, operator, or an employee of a
massage business is arrested for specified crimes, including
soliciting or engaging in an act of prostitution, for a period up to
and including any administrative and judicial hearing regarding the
violation, and would require the licensing body to reinstate the
massage business license within 60 days of a decision finding the
person not guilty of the alleged violation.
This bill would authorize a licensing body to revoke a local
massage business license if the council or licensing body of another
jurisdiction has revoked the owner's or operator's massage
certificate or massage business license, respectively, or the council
has disciplined the owner or operator for unprofessional conduct or
other specified acts.
Existing law provides that any person who deprives or violates the
personal liberty of another with the intent to obtain forced labor
or services or to effect or maintain a felony violation of offenses
relating to prostitution, child pornography, as specified, or
extortion, as defined, is guilty of human trafficking. Existing law
also provides that a person who solicits or agrees to engage in or
engages in any act of prostitution is guilty of disorderly conduct, a
misdemeanor.
This bill would state the intent of the Legislature to enact
legislation to prevent human trafficking and prostitution in massage
therapy establishments.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
AB 1747, as amended, Holden. Human trafficking.
Massage therapy.
(1) Existing law, until January 1, 2015, creates the California
Massage Therapy Council and provides for the voluntary certification
of massage practitioners and massage therapists by the council.
Existing law specifies the requirements for the council to issue to
an applicant a certificate as a massage practitioner or massage
therapist, including completion of a curricula in massage and related
subjects at an approved school. Existing law requires the council to
immediately suspend, on an interim basis, the certificate of a
certificate holder, if the council receives notice that the
certificate holder has been arrested for and charged with, specified
crimes, including soliciting or engaging in an act of prostitution or
an act punishable as a sexually related crime.
This bill would make the records of the council open to public
inspection pursuant to the California Public Records Act. The bill
would require an approved or registered school to notify its students
if the council has removed council approval of the school. The bill
would also require the council to notify the city, county, or city
and county where a certificate holder is operating when the council
has revoked a massage certificate.
(2) Existing law authorizes a city, county, or city and county to
charge a massage business or establishment a business licensing fee
that is no higher than the lowest fee that is applied to other
individuals and businesses providing professional services, as
defined. Existing law prohibits a local building code or physical
facility requirements applicable to a massage business or
establishment from requiring an unlocked door when there is no staff
available to ensure security of clients and massage staff who are
behind closed doors. Existing law makes an owner or operator of a
massage business or establishment who is a certificate holder
responsible for the conduct of all employees or independent
contractors working on the business premises.
This bill would, instead, authorize a city, county, or city and
county to charge a massage business or establishment a business
licensing fee that is no higher than the average fee that is applied
to other individuals and businesses providing professional services.
The bill would delete the prohibition against an ordinance requiring
an unlocked door as described above. The bill would require an owner
or operator to be responsible, as described above, regardless of
whether the owner or operator is a certificate holder.
(3) Existing law authorizes a city, county, or city and county to
enact an ordinance that provides for the licensing and regulation of
the business of massage.
This bill would expressly authorize the ordinance to prohibit an
individual or entity from operating a massage business without a
valid massage business license, as defined, to require that, during a
massage business' operating hours, a certificate holder be present,
the massage business display a list of its employees and independent
contractors certificate holders, and that each employee or
independent contractor present his or her state-issued identification
card or United States passport to a law enforcement officer upon
request. The bill would also expressly authorize the ordinance to
require a massage business to provide the list of certificate holders
to the enacting body, and to prohibit sexual conduct at a massage
business' premises. The bill would require the legislative body to
transmit a copy of the ordinance to the council.
(4) Existing law authorizes a licensing body to deny a license if
there is proof that the massage personnel, owners, and operators have
been convicted of specified crimes, including soliciting or engaging
in an act of prostitution.
This bill would authorize a licensing body to deny a local massage
business license if the council or licensing body of another
jurisdiction has revoked the applicant's massage certificate or
massage business license, respectively, the council has disciplined
the applicant for unprofessional conduct or other specified acts, or
the massage business is located where a previous massage business was
located and the massage business license of that previous massage
business was revoked.
This bill would authorize a local licensing body to suspend a
massage business license if the owner, operator, or an employee of a
massage business is arrested for specified crimes, including
soliciting or engaging in an act of prostitution, for a period up to
and including any administrative and judicial hearing regarding the
violation, and would require the licensing body to reinstate the
massage business license within 60 days of a decision finding the
person not guilty of the alleged violation.
This bill would authorize a licensing body to revoke a local
massage business license if the council or licensing body of another
jurisdiction has revoked the owner's or operator's massage
certificate or massage business license, respectively, or the council
has disciplined the owner or operator for unprofessional conduct or
other specified acts.
Existing law provides that any person who deprives or violates the
personal liberty of another with the intent to obtain forced labor
or services or to effect or maintain a felony violation of offenses
relating to prostitution, child pornography, as specified, or
extortion, as defined, is guilty of human trafficking. Existing law
also provides that a person who solicits or agrees to engage in or
engages in any act of prostitution is guilty of disorderly conduct, a
misdemeanor.
This bill would state the intent of the Legislature to enact
legislation to prevent human trafficking and prostitution in massage
therapy establishments.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4600.5 of the
Business and Professions Code is amended to read:
4600.5. (a) The California Massage Therapy Council, as defined in
subdivision (e) of Section 4600, shall be created and shall
have is hereby established with the
responsibilities and duties set forth in this chapter. The council
may take any reasonable actions to carry out the responsibilities and
duties set forth in this chapter, including, but not limited to,
hiring staff and entering into contracts.
(b) (1) The council shall be is
governed by a board of directors made up of two representatives
selected by each professional society, association, or other entity,
whose membership is comprised of massage therapists and that chooses
to participate in the council. To qualify, a professional society,
association, or other entity shall have a dues-paying membership in
California of at least 1,000 individuals for the last three years,
and shall have bylaws that require its members to comply with a code
of ethics. The board of directors shall also include each of the
following persons:
(A) One member selected by each statewide association of private
postsecondary schools incorporated on or before January 1, 2010,
whose member schools have together had at least 1,000 graduates in
each of the previous three years from massage therapy programs
meeting the approval standards set forth in subdivision (a) of
Section 4600, except from those qualifying associations that choose
not to exercise this right of selection.
(B) One member selected by the League of California Cities, unless
that entity chooses not to exercise this right of selection.
(C) One member selected by the California State Association of
Counties, unless that entity chooses not to exercise this right of
selection.
(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.
(E) One member appointed by the Office of the Chancellor of the
California Community Colleges, unless that entity chooses not to
exercise this right of selection. The person appointed, if any, shall
not be part of any massage therapy certificate or degree program.
The council's bylaws shall establish a process for appointing
other professional directors as determined by the board.
(2) The initial board of directors shall establish the council,
initiate the request for tax-exempt status from the Internal Revenue
Service, and solicit input from the massage community concerning the
operations of the council. The initial board of directors, in its
discretion, may immediately undertake to issue the certificates
authorized by this chapter after adopting the necessary bylaws or
other rules, or may establish by adoption of bylaws the permanent
governing structure prior to issuing certificates.
(c) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.
(d) The meetings of the council shall be
are 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).
(e) The records of the council shall be open to public inspection
pursuant to the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
(f) It is part of the mission of the council to act as a
repository of information for local governments to utilize when
issuing permits and taking enforcement action authorized by law.
SEC. 2. Section 4601.1 is added to the
Business and Professions Code , to read:
4601.1. An approved or registered school shall notify its
students if the council has removed council approval of the school.
SEC. 3. Section 4602 of the Business
and Professions Code is amended to read:
4602. (a) The council may discipline a certificate holder by any,
or a combination, of the following methods:
(1) Placing the certificate holder on probation.
(2) Suspending the certificate and the rights conferred by this
chapter on a certificate holder for a period not to exceed one year.
(3) Revoking the certificate.
(4) Suspending or staying the disciplinary order, or portions of
it, with or without conditions.
(5) Taking other action as the council, as authorized by this
chapter or its bylaws, deems proper.
(b) The council may issue an initial certificate on probation,
with specific terms and conditions, to any applicant.
(c) (1) Notwithstanding any other provision of law, if the council
receives notice that a certificate holder has been arrested and
charges have been filed by the appropriate prosecuting agency against
the certificate holder alleging a violation of subdivision (b) of
Section 647 of the Penal Code or any other offense described in
subdivision (h) of Section 4603, the council shall take all of the
following actions:
(A) Immediately suspend, on an interim basis, the certificate of
that certificate holder.
(B) Notify the certificate holder within 10 business days at the
address last filed with the council that the certificate has been
suspended, and the reason for the suspension.
(C) Notify any business within 10 business days that the council
has in its records as employing the certificate holder that the
certificate has been suspended.
(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the suspended
certificate shall become subject to permanent revocation. The council
shall provide notice to the certificate holder within 10 business
days that it has evidence of a valid record of conviction and that
the certificate will be revoked unless the certificate holder
provides evidence within 15 days that the conviction is either
invalid or that the information is otherwise erroneous.
(3) Upon notice that the charges have resulted in an acquittal, or
have otherwise been dismissed prior to conviction, the certificate
shall be immediately reinstated and the certificate holder and any
business that received notice pursuant to subparagraph (C) of
paragraph (1) shall be notified of the reinstatement within 10
business days.
(d) Notwithstanding any other provision of law, if the council
receives clear and convincing evidence that a certificate holder has
committed an act punishable as a sexually related crime or a felony
that is substantially related to the qualifications, functions, or
duties of a certificate holder, the council may immediately suspend
the certificate of that certificate holder. A decision to immediately
suspend a certificate pursuant to this subdivision shall be based on
clear and convincing evidence and the council shall also consider
any available credible mitigating evidence before making a decision
to suspend a certificate. Written statements by any person shall not
be considered by the council when determining whether to immediately
suspend a certificate unless made under penalty of perjury. If the
council suspends the certificate of a certificate holder in
accordance with this subdivision, the council shall take all of the
following additional actions:
(1) Notify the certificate holder, at the address last filed with
the council, within 10 business days by a method providing delivery
confirmation, that the certificate has been suspended, the reason for
the suspension, and that the certificate holder has the right to
request a hearing pursuant to paragraph (3).
(2) Notify by electronic mail or any other means consistent with
the notice requirements of this chapter, within 10 business days, any
business that the council has in its records as employing or
contracting with the certificate holder for massage services, and the
California city or county permitting authority that has jurisdiction
over any business that the council has in its records as employing
or contracting with the certificate holder, that the certificate has
been suspended.
(3) A certificate holder whose certificate is suspended pursuant
to this subdivision shall have the right to request, in writing, a
hearing to challenge the factual basis for the suspension. If the
holder of the suspended certificate requests a hearing on the
suspension, the hearing shall be held within 30 days after receipt of
the request. A holder whose certificate is suspended based on
paragraph (1) shall be subject to revocation or other discipline in
accordance with subdivision (a).
(e) The council shall notify the city, county, or city and county
in which a certificate holder is operating when the council revokes a
certificate holder's certificate.
SEC. 4. Section 4612 of the Business
and Professions Code is amended to read:
4612. (a) (1) The holder of a certificate issued pursuant to this
chapter shall have the right to practice massage, consistent with
this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section, to engage in
that practice.
(2) Notwithstanding any other provision of law, a city, county, or
city and county shall not enact an ordinance that requires a
license, permit, or other authorization to provide massage for
compensation by an individual who is certified pursuant to this
chapter and who is practicing consistent with the qualifications
established by his or her certification, or by a massage business or
massage establishment that employs or uses only persons who are
certified pursuant to this chapter to provide massage for
compensation. No provision of any ordinance enacted by a city,
county, or city and county that is in effect before the effective
date of this chapter, and that requires a license, permit, or other
authorization to provide massage for compensation, may be enforced
against an individual who is certified pursuant to this chapter or
against a massage business or massage establishment that employs or
uses only persons who are certified pursuant to this chapter to
provide massage for compensation.
(3) Except as provided in subdivision (b), nothing in this section
shall be interpreted to prevent a city, county, or city and county
from adopting or enforcing any local ordinance that provides for
reasonable health and safety requirements for massage establishments
or businesses. Subdivision (b) shall not apply to any massage
establishment or business that employs or uses persons to provide
massage services who are not certified pursuant to this chapter.
(b) (1) This subdivision shall apply only to massage
establishments or businesses that are sole proprietorships, where the
sole proprietor is certified pursuant to this chapter, and to
massage establishments or businesses that employ or use only persons
certified pursuant to this chapter to provide massage services. For
purposes of this subdivision, a sole proprietorship is a business
where the owner is the only person employed by that business to
provide massage services.
(2) (A) Any massage establishment or business described in
paragraph (1) shall maintain on its premises evidence for review by
local authorities that demonstrates that all persons providing
massage services are certified.
(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (1) to file copies or
provide other evidence of the certificates held by the persons who
are providing massage services at the business.
(3) A city, county, or city and county may charge a massage
business or establishment a business licensing fee, provided that the
fee shall be no higher than the lowest
average fee that is applied to other individuals and businesses
providing professional services, as defined in subdivision (a) of
Section 13401 of the Corporations Code.
(4) Nothing in this section shall prohibit a city, county, or city
and county from enacting ordinances, regulations, rules,
requirements, restrictions, land use regulations, moratoria,
conditional use permits, or zoning requirements applicable to an
individual certified pursuant to this chapter or to a massage
establishment or business that uses only individuals who are
certified pursuant to this chapter to provide massage for
compensation, provided that, unless otherwise exempted by this
chapter, these ordinances, regulations, rules, requirements,
restrictions, land use regulations, moratoria, conditional use
permits, and zoning requirements shall be no different than the
requirements that are uniformly applied to all
other individuals and businesses providing professional services, as
defined in subdivision (a) of Section 13401 of the Corporations Code.
No provision of any ordinance, regulation, rule, requirement,
restriction, land use regulation, moratoria, conditional use permit,
or zoning requirement enacted by a city, county, or city and county
that is in effect before the effective date of this chapter, and that
is inconsistent with this paragraph, may be enforced against an
individual who is certified pursuant to this chapter or against a
massage business or massage establishment that uses only individuals
who are certified pursuant to this chapter to provide massage for
compensation.
(5) Local building code or physical facility requirements
applicable to massage establishments or businesses shall not require
additional restroom, shower, or other facilities that are not
uniformly applicable to other professional or
personal service businesses, nor shall building or facility
requirements be adopted that (A) require unlocked doors when
there is no staff available to ensure security for clients and
massage staff who are behind closed doors, or (B) require
windows that provide a view into massage rooms that interfere with
the privacy of clients of the massage business.
(6) A city, county, or city and county may adopt reasonable health
and safety requirements with respect to massage establishments or
businesses, including, but not limited to, requirements for
cleanliness of massage rooms, towels and linens, and reasonable
attire and personal hygiene requirements for persons providing
massage services, provided that nothing in this paragraph shall be
interpreted to authorize adoption of local ordinances that impose
additional qualifications, such as medical examinations, background
checks, or other criteria, upon any person certified pursuant to this
chapter.
(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:
(A) Requiring an applicant for a business license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information, as long as
the information requested is the same as that required of other
individuals and professionals providing professional services as
defined in subdivision (a) of Section 13401 of the Corporations Code.
(B) Making reasonable investigations into the information so
provided.
(C) Denying or restricting a business license if the applicant has
provided materially false information.
(c) An owner or operator of a massage business or establishment
who is certified pursuant to this chapter shall be
responsible for the conduct of all employees or independent
contractors working on the premises of the business. Failure to
comply with this chapter may result in revocation of the owner's or
operator's certificate in accordance with Section 4603. Nothing in
this section shall preclude a local ordinance from authorizing
suspension, revocation, or other restriction of a license or permit
issued to a massage establishment or business if violations of this
chapter, or of the local ordinance, occur on the business premises.
(d) Nothing in this section shall preclude a city, county, or city
and county from adopting a local ordinance that is applicable to
massage businesses or establishments described in paragraph (1) of
subdivision (b) and that does either of the following:
(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health and
safety requirements.
(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management, or
convey the business to another person.
(e) Nothing in this chapter shall be construed to preclude a city,
county, or city and county from requiring a background check of an
owner or operator of a massage establishment who owns 5 percent or
more of a massage business or massage establishment and who is not
certified pursuant to this chapter. The background check may include,
but is not limited to, a criminal background check, including
requiring submission of fingerprints for a state and federal criminal
background check, submission of an application that requires the
applicant to state information, including, but not limited to, the
applicant's business, occupation, and employment history for the 10
years preceding the date of application, the inclusive dates of same,
and the name and address of any massage business or other like
establishment owned or operated by any person who is subject to the
background check requirement of this subdivision. If a noncertified
owner's or operator's background check results in a finding that the
city, county, or city and county determines is relevant to owning or
operating a massage establishment, then the provisions of
subdivisions (a) and (b) shall not apply to that establishment and
the city, county, or city and county may regulate that establishment
in any manner it deems proper that is in accordance with the law.
SEC. 5. Section 51030 of the Government
Code is amended to read:
51030. (a) The legislative body of a
city for incorporated areas or county for unincorporated
areas city, county, or city and county may enact
an ordinance which that provides for
the licensing for regulation of the business of massage when carried
on within the city or county. city, county,
or city and county, including, without limitation, to do any of the
following:
(1) (A) Prohibit an individual or entity from operating a massage
business in the jurisdiction without a valid massage business
license.
(B) For purposes of this chapter, "massage business license" means
a license issued by a local licensing body to operate a massage
business within the local licensing body's jurisdiction.
(2) Require a certificate holder to be present at the massage
business during operating hours.
(3) Require an employee or independent contractor to present his
or her state-issued identification card or United States passport to
a law enforcement officer upon request during operating hours.
(4) Require a massage business to display a list of its employees
and independent contractors who are certificate holders.
(5) Prohibit sexual conduct on the premises of a massage business.
(b) The legislative body shall transmit a copy of the ordinance to
the Massage Therapy Council.
SEC. 6. Section 51032 of the
Government Code is amended to read:
51032. (a) The ordinance may also provide that a massage
business license to engage in the business of massage
may be denied upon a showing by the licensing authority of
either any of the following:
(1) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of a violation of Section
236.1, 266i, 315, 316, 318, or subdivision (b) of Section
647 of the Penal Code, or proof that the massage personnel or the
owners or operators of a massage business have been convicted in any
other state of any offense which, if committed or attempted in this
state, would have been punishable as one or more of the
above-mentioned offenses of this subdivision.
(2) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of any felony offense
involving the sale of a controlled substance specified in Section
11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code or
proof that the massage personnel or the owners or operators of the
massage business have been convicted in any other state of any
offense which, if committed or attempted in this state, would have
been punishable as one or more of the above-mentioned offenses of
this subdivision.
(3) The California Massage Therapy Council has revoked the
applicant's massage certificate.
(4) The licensing body of another jurisdiction has revoked the
applicant's massage business license pursuant to subdivision (a) of
Section 51032.3.
(5) The California Massage Therapy Council has disciplined the
applicant pursuant to Section 4603 of the Business and Professions
Code.
(6) The massage business is located in a location where a previous
massage business was located and the massage business license of
that previous massage business was revoked.
(b) The ordinance shall also provide that a massage business
license to engage in the business of massage
shall be denied upon a showing by the licensing authority of proof
that the massage personnel or the owners or operators of a massage
business are required to register under the provisions of Section 290
of the Penal Code.
(c) For purposes of this chapter, "massage certificate" means a
certificate issued by the Massage Therapy Council pursuant to Chapter
10.5 (commencing with Section 4600) of Division 2 of the Business
and Professions Code.
SEC. 7. Section 51032.3 is added to the
Government Code , to read:
51032.3. (a) (1) The ordinance may authorize the city, county, or
city and county to suspend a massage business license if the owner,
operator, or an employee is arrested for a crime listed in Section
51032. The suspension may be effective for the period up to and
including any administrative and judicial hearing regarding the
violation.
(2) If the owner, operator, or employee is found not guilty of the
violation described in paragraph (1), the massage business license
shall be reinstated within 60 days of the decision.
(b) The ordinance may authorize the city, county, or city and
county to revoke a massage business license for any of the following
reasons:
(1) The California Massage Therapy Council has revoked a massage
certificate it issued to the owner or operator.
(2) A licensing entity in another jurisdiction has revoked a
license that it issued to the owner or operator.
(3) The California Massage Therapy Council has disciplined the
owner or operator pursuant to Section 4603 of the Business and
Professions Code.
SECTION 1. It is the intent of the Legislature
to enact legislation to prevent human trafficking and prostitution in
massage therapy establishments.
SECTION 1. Section 4600.5 of the
Business and Professions Code is amended to read:
4600.5. (a) The California Massage Therapy Council, as defined in
subdivision (e) of Section 4600, shall be created and shall
have is hereby established with the
responsibilities and duties set forth in this chapter. The council
may take any reasonable actions to carry out the responsibilities and
duties set forth in this chapter, including, but not limited to,
hiring staff and entering into contracts.
(b) (1) The council shall be is
governed by a board of directors made up of two representatives
selected by each professional society, association, or other entity,
whose membership is comprised of massage therapists and that chooses
to participate in the council. To qualify, a professional society,
association, or other entity shall have a dues-paying membership in
California of at least 1,000 individuals for the last three years,
and shall have bylaws that require its members to comply with a code
of ethics. The board of directors shall also include each of the
following persons:
(A) One member selected by each statewide association of private
postsecondary schools incorporated on or before January 1, 2010,
whose member schools have together had at least 1,000 graduates in
each of the previous three years from massage therapy programs
meeting the approval standards set forth in subdivision (a) of
Section 4600, except from those qualifying associations that choose
not to exercise this right of selection.
(B) One member selected by the League of California Cities, unless
that entity chooses not to exercise this right of selection.
(C) One member selected by the California State Association of
Counties, unless that entity chooses not to exercise this right of
selection.
(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.
(E) One member appointed by the Office of the Chancellor of the
California Community Colleges, unless that entity chooses not to
exercise this right of selection. The person appointed, if any, shall
not be part of any massage therapy certificate or degree program.
The council's bylaws shall establish a process for appointing
other professional directors as determined by the board.
(2) The initial board of directors shall establish the council,
initiate the request for tax-exempt status from the Internal Revenue
Service, and solicit input from the massage community concerning the
operations of the council. The initial board of directors, in its
discretion, may immediately undertake to issue the certificates
authorized by this chapter after adopting the necessary bylaws or
other rules, or may establish by adoption of bylaws the permanent
governing structure prior to issuing certificates.
(c) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.
(d) The meetings of the council shall be
are 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).
(e) The records of the council shall be open to public inspection
pursuant to the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
(f) It is part of the mission of the council to act as a
repository of information for local governments to utilize when
issuing permits and taking enforcement action authorized by law.
SEC. 2. Section 4601.1 is added to the
Business and Professions Code , to read:
4601.1. An approved or registered school shall notify its
students if the council has removed council approval of the school.
SEC. 3. Section 4602 of the Business
and Professions Code is amended to read:
4602. (a) The council may discipline a certificate holder by any,
or a combination, of the following methods:
(1) Placing the certificate holder on probation.
(2) Suspending the certificate and the rights conferred by this
chapter on a certificate holder for a period not to exceed one year.
(3) Revoking the certificate.
(4) Suspending or staying the disciplinary order, or portions of
it, with or without conditions.
(5) Taking other action as the council, as authorized by this
chapter or its bylaws, deems proper.
(b) The council may issue an initial certificate on probation,
with specific terms and conditions, to any applicant.
(c) (1) Notwithstanding any other provision of law, if the council
receives notice that a certificate holder has been arrested and
charges have been filed by the appropriate prosecuting agency against
the certificate holder alleging a violation of subdivision (b) of
Section 647 of the Penal Code or any other offense described in
subdivision (h) of Section 4603, the council shall take all of the
following actions:
(A) Immediately suspend, on an interim basis, the certificate of
that certificate holder.
(B) Notify the certificate holder within 10 business days at the
address last filed with the council that the certificate has been
suspended, and the reason for the suspension.
(C) Notify any business within 10 business days that the council
has in its records as employing the certificate holder that the
certificate has been suspended.
(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the suspended
certificate shall become subject to permanent revocation. The council
shall provide notice to the certificate holder within 10 business
days that it has evidence of a valid record of conviction and that
the certificate will be revoked unless the certificate holder
provides evidence within 15 days that the conviction is either
invalid or that the information is otherwise erroneous.
(3) Upon notice that the charges have resulted in an acquittal, or
have otherwise been dismissed prior to conviction, the certificate
shall be immediately reinstated and the certificate holder and any
business that received notice pursuant to subparagraph (C) of
paragraph (1) shall be notified of the reinstatement within 10
business days.
(d) Notwithstanding any other provision of law, if the council
receives clear and convincing evidence that a certificate holder has
committed an act punishable as a sexually related crime or a felony
that is substantially related to the qualifications, functions, or
duties of a certificate holder, the council may immediately suspend
the certificate of that certificate holder. A decision to immediately
suspend a certificate pursuant to this subdivision shall be based on
clear and convincing evidence and the council shall also consider
any available credible mitigating evidence before making a decision
to suspend a certificate. Written statements by any person shall not
be considered by the council when determining whether to immediately
suspend a certificate unless made under penalty of perjury. If the
council suspends the certificate of a certificate holder in
accordance with this subdivision, the council shall take all of the
following additional actions:
(1) Notify the certificate holder, at the address last filed with
the council, within 10 business days by a method providing delivery
confirmation, that the certificate has been suspended, the reason for
the suspension, and that the certificate holder has the right to
request a hearing pursuant to paragraph (3).
(2) Notify by electronic mail or any other means consistent with
the notice requirements of this chapter, within 10 business days, any
business that the council has in its records as employing or
contracting with the certificate holder for massage services, and the
California city or county permitting authority that has jurisdiction
over any business that the council has in its records as employing
or contracting with the certificate holder, that the certificate has
been suspended.
(3) A certificate holder whose certificate is suspended pursuant
to this subdivision shall have the right to request, in writing, a
hearing to challenge the factual basis for the suspension. If the
holder of the suspended certificate requests a hearing on the
suspension, the hearing shall be held within 30 days after receipt of
the request. A holder whose certificate is suspended based on
paragraph (1) shall be subject to revocation or other discipline in
accordance with subdivision (a).
(e) The council shall notify the city, county, or city and county
in which a certificate holder is operating when the council revokes a
certificate holder's certificate.
SEC. 4. Section 4612 of the Business
and Professions Code is amended to read:
4612. (a) (1) The holder of a certificate issued pursuant to this
chapter shall have the right to practice massage, consistent with
this chapter and the qualifications established by his or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section, to engage in
that practice.
(2) Notwithstanding any other provision of law, a city, county, or
city and county shall not enact an ordinance that requires a
license, permit, or other authorization to provide massage for
compensation by an individual who is certified pursuant to this
chapter and who is practicing consistent with the qualifications
established by his or her certification, or by a massage business or
massage establishment that employs or uses only persons who are
certified pursuant to this chapter to provide massage for
compensation. No provision of any ordinance enacted by a city,
county, or city and county that is in effect before the effective
date of this chapter, and that requires a license, permit, or other
authorization to provide massage for compensation, may be enforced
against an individual who is certified pursuant to this chapter or
against a massage business or massage establishment that employs or
uses only persons who are certified pursuant to this chapter to
provide massage for compensation.
(3) Except as provided in subdivision (b), nothing in this section
shall be interpreted to prevent a city, county, or city and county
from adopting or enforcing any local ordinance that provides for
reasonable health and safety requirements for massage establishments
or businesses. Subdivision (b) shall not apply to any massage
establishment or business that employs or uses persons to provide
massage services who are not certified pursuant to this chapter.
(b) (1) This subdivision shall apply only to massage
establishments or businesses that are sole proprietorships, where the
sole proprietor is certified pursuant to this chapter, and to
massage establishments or businesses that employ or use only persons
certified pursuant to this chapter to provide massage services. For
purposes of this subdivision, a sole proprietorship is a business
where the owner is the only person employed by that business to
provide massage services.
(2) (A) Any massage establishment or business described in
paragraph (1) shall maintain on its premises evidence for review by
local authorities that demonstrates that all persons providing
massage services are certified.
(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (1) to file copies or
provide other evidence of the certificates held by the persons who
are providing massage services at the business.
(3) A city, county, or city and county may charge a massage
business or establishment a business licensing fee, provided that the
fee shall be no higher than the lowest
average fee that is applied to other individuals and businesses
providing professional services, as defined in subdivision (a) of
Section 13401 of the Corporations Code.
(4) Nothing in this section shall prohibit a city, county, or city
and county from enacting ordinances, regulations, rules,
requirements, restrictions, land use regulations, moratoria,
conditional use permits, or zoning requirements applicable to an
individual certified pursuant to this chapter or to a massage
establishment or business that uses only individuals who are
certified pursuant to this chapter to provide massage for
compensation, provided that, unless otherwise exempted by this
chapter, these ordinances, regulations, rules, requirements,
restrictions, land use regulations, moratoria, conditional use
permits, and zoning requirements shall be no different than the
requirements that are uniformly applied to all
other individuals and businesses providing professional services, as
defined in subdivision (a) of Section 13401 of the Corporations Code.
No provision of any ordinance, regulation, rule, requirement,
restriction, land use regulation, moratoria, conditional use permit,
or zoning requirement enacted by a city, county, or city and county
that is in effect before the effective date of this chapter, and that
is inconsistent with this paragraph, may be enforced against an
individual who is certified pursuant to this chapter or against a
massage business or massage establishment that uses only individuals
who are certified pursuant to this chapter to provide massage for
compensation.
(5) Local building code or physical facility requirements
applicable to massage establishments or businesses shall not require
additional restroom, shower, or other facilities that are not
uniformly applicable to other professional or
personal service businesses, nor shall building or facility
requirements be adopted that (A) require unlocked doors when
there is no staff available to ensure security for clients and
massage staff who are behind closed doors, or (B) require
windows that provide a view into massage rooms that interfere with
the privacy of clients of the massage business.
(6) A city, county, or city and county may adopt reasonable health
and safety requirements with respect to massage establishments or
businesses, including, but not limited to, requirements for
cleanliness of massage rooms, towels and linens, and reasonable
attire and personal hygiene requirements for persons providing
massage services, provided that nothing in this paragraph shall be
interpreted to authorize adoption of local ordinances that impose
additional qualifications, such as medical examinations, background
checks, or other criteria, upon any person certified pursuant to this
chapter.
(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the following:
(A) Requiring an applicant for a business license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information, as long as
the information requested is the same as that required of other
individuals and professionals providing professional services as
defined in subdivision (a) of Section 13401 of the Corporations Code.
(B) Making reasonable investigations into the information so
provided.
(C) Denying or restricting a business license if the applicant has
provided materially false information.
(c) An owner or operator of a massage business or establishment
who is certified pursuant to this chapter shall be
responsible for the conduct of all employees or independent
contractors working on the premises of the business. Failure to
comply with this chapter may result in revocation of the owner's or
operator's certificate in accordance with Section 4603. Nothing in
this section shall preclude a local ordinance from authorizing
suspension, revocation, or other restriction of a license or permit
issued to a massage establishment or business if violations of this
chapter, or of the local ordinance, occur on the business premises.
(d) Nothing in this section shall preclude a city, county, or city
and county from adopting a local ordinance that is applicable to
massage businesses or establishments described in paragraph (1) of
subdivision (b) and that does either of the following:
(1) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health and
safety requirements.
(2) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change management, or
convey the business to another person.
(e) Nothing in this chapter shall be construed to preclude a city,
county, or city and county from requiring a background check of an
owner or operator of a massage establishment who owns 5 percent or
more of a massage business or massage establishment and who is not
certified pursuant to this chapter. The background check may include,
but is not limited to, a criminal background check, including
requiring submission of fingerprints for a state and federal criminal
background check, submission of an application that requires the
applicant to state information, including, but not limited to, the
applicant's business, occupation, and employment history for the 10
years preceding the date of application, the inclusive dates of same,
and the name and address of any massage business or other like
establishment owned or operated by any person who is subject to the
background check requirement of this subdivision. If a noncertified
owner's or operator's background check results in a finding that the
city, county, or city and county determines is relevant to owning or
operating a massage establishment, then the provisions of
subdivisions (a) and (b) shall not apply to that establishment and
the city, county, or city and county may regulate that establishment
in any manner it deems proper that is in accordance with the law.
SEC. 5. Section 51030 of the Government
Code is amended to read:
51030. (a) The legislative body of a
city for incorporated areas or county for unincorporated
areas city, county, or city and county may enact
an ordinance which that provides for
the licensing for regulation of the business of massage when carried
on within the city or county. city, county,
or city and county, including, without limitation, to do any of the
following:
(1) (A) Prohibit an individual or entity from operating a massage
business in the jurisdiction without a valid massage business
license.
(B) For purposes of this chapter, "massage business license" means
a license issued by a local licensing body to operate a massage
business within the local licensing body's jurisdiction.
(2) Require a certificate holder to be present at the massage
business during operating hours.
(3) Require an employee or independent contractor to present his
or her state-issued identification card or United States passport to
a law enforcement officer upon request during operating hours.
(4) Require a massage business to display a list of its employees
and independent contractors who are certificate holders.
(5) Prohibit sexual conduct on the premises of a massage business.
(b) The legislative body shall transmit a copy of the ordinance to
the Massage Therapy Council.
SEC. 6. Section 51032 of the
Government Code is amended to read:
51032. (a) The ordinance may also provide that a massage
business license to engage in the business of massage
may be denied upon a showing by the licensing authority of
either any of the following:
(1) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of a violation of Section
236.1, 266i, 315, 316, 318, or subdivision (b) of Section
647 of the Penal Code, or proof that the massage personnel or the
owners or operators of a massage business have been convicted in any
other state of any offense which, if committed or attempted in this
state, would have been punishable as one or more of the
above-mentioned offenses of this subdivision.
(2) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of any felony offense
involving the sale of a controlled substance specified in Section
11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code or
proof that the massage personnel or the owners or operators of the
massage business have been convicted in any other state of any
offense which, if committed or attempted in this state, would have
been punishable as one or more of the above-mentioned offenses of
this subdivision.
(3) The California Massage Therapy Council has revoked the
applicant's massage certificate.
(4) The licensing body of another jurisdiction has revoked the
applicant's massage business license pursuant to subdivision (a) of
Section 51032.3.
(5) The California Massage Therapy Council has disciplined the
applicant pursuant to Section 4603 of the Business and Professions
Code.
(6) The massage business is located in a location where a previous
massage business was located and the massage business license of
that previous massage business was revoked.
(b) The ordinance shall also provide that a massage business
license to engage in the business of massage
shall be denied upon a showing by the licensing authority of proof
that the massage personnel or the owners or operators of a massage
business are required to register under the provisions of Section 290
of the Penal Code.
(c) For purposes of this chapter, "massage certificate" means a
certificate issued by the Massage Therapy Council pursuant to Chapter
10.5 (commencing with Section 4600) of Division 2 of the Business
and Professions Code.
SEC. 7. Section 51032.3 is added to the
Government Code , to read:
51032.3. (a) (1) The ordinance may authorize the city, county, or
city and county to suspend a massage business license if the owner,
operator, or an employee is arrested for a crime listed in Section
51032. The suspension may be effective for the period up to and
including any administrative and judicial hearing regarding the
violation.
(2) If the owner, operator, or employee is found not guilty of the
violation described in paragraph (1), the massage business license
shall be reinstated within 60 days of the decision.
(b) The ordinance may authorize the city, county, or city and
county to revoke a massage business license for any of the following
reasons:
(1) The California Massage Therapy Council has revoked a massage
certificate it issued to the owner or operator.
(2) A licensing entity in another jurisdiction has revoked a
license that it issued to the owner or operator.
(3) The California Massage Therapy Council has disciplined the
owner or operator pursuant to Section 4603 of the Business and
Professions Code.
SECTION 1. It is the intent of the Legislature
to enact legislation to prevent human trafficking and prostitution in
massage therapy establishments.
