Bill Text: CA SB1238 | 2011-2012 | Regular Session | Chaptered
Bill Title: Massage therapy.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2012-09-27 - Chaptered by Secretary of State. Chapter 655, Statutes of 2012. [SB1238 Detail]
Download: California-2011-SB1238-Chaptered.html
BILL NUMBER: SB 1238 CHAPTERED
BILL TEXT
CHAPTER 655
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2012
APPROVED BY GOVERNOR SEPTEMBER 27, 2012
PASSED THE SENATE AUGUST 31, 2012
PASSED THE ASSEMBLY AUGUST 28, 2012
AMENDED IN ASSEMBLY AUGUST 24, 2012
AMENDED IN ASSEMBLY AUGUST 20, 2012
INTRODUCED BY Senator Price
FEBRUARY 23, 2012
An act to amend Sections 4600, 4601, 4602, 4602.5, 4603, 4603.7,
4612, and 4613 of, and to add Section 4603.8 to, the Business and
Professions Code, relating to healing arts.
LEGISLATIVE COUNSEL'S DIGEST
SB 1238, Price. 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 therapist, including, but not limited to, (1)
successfully completing curricula in massage and related subjects
totaling a minimum of 500 hours, a minimum of 250 hours of which
shall be from a school approved by the council and the other 250
hours may be secured as specified, or (2) passing a massage and
bodywork competency assessment examination, as specified.
This bill would require an applicant for a massage therapist
certificate to meet the other requirements for certification and to
also successfully complete either (1) the 500 hours or the credit
unit equivalent or (2) the competency assessment examination and
curricula in massage and related subjects totaling a minimum of 250
hours, 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 a certificate holder has been arrested
for and charged with, among other crimes, soliciting or engaging in
an act of prostitution or an act punishable as a sexually related
crime, and to provide notices of the suspension to the certificate
holder and any business that employs the certificate holder, in each
case, as specified.
This bill would additionally authorize the council to immediately
suspend the certificate of a certificate holder upon receipt of clear
and convincing evidence that the 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 bill would also require the council to
consider any available credible mitigating evidence before making a
decision to so suspend a certificate. The bill would grant the holder
of a certificate so suspended the right to a hearing to be held
within 30 days and require the council to send notice of suspension
to the certificate holder and to other specified businesses.
Existing law requires the council, upon request of a law
enforcement agency or local government agency with responsibility for
regulating massage or massage businesses, to provide information
concerning a certificate holder, as specified.
This bill would authorize those agencies, upon request of the
council, to provide information to the council concerning an
applicant or certificate holder, including, but not limited to,
information related to criminal activity or unprofessional conduct
allegedly engaged in by that person.
Under existing law, conviction of a felony that is substantially
related to the qualifications or duties of a certificate holder is a
violation and basis for the council to deny an application or
discipline a certificate holder.
This bill would also impose those consequences for a conviction of
a felony, misdemeanor, infraction, or municipal code violation, or
liability in an administrative or civil action, that is substantially
related to the qualifications, functions, or duties of a certificate
holder. The bill would also require a certificate holder to provide
identifying information, upon request, as specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4600 of the Business and Professions Code is
amended to read:
4600. 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 and that meets any of the
following requirements:
(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 of equal or greater training that is recognized by
the corresponding agency in another state or accredited by an agency
recognized by the United States Department of Education.
(b) "Compensation" means the payment, loan, advance, donation,
contribution, deposit, or gift of money or anything of value.
(c) "Massage therapist," "bodyworker," "bodywork therapist," or
"massage and bodywork therapist" means a person who is certified by
the California Massage Therapy Council under subdivision (c) of
Section 4601 and who administers massage for compensation.
(d) "Massage practitioner," "bodywork practitioner," or "massage
and bodywork practitioner" means a person who is certified by the
California Massage Therapy Council under subdivision (b) of Section
4601 and who administers massage for compensation.
(e) "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. The council may commence activities as authorized
by this section once it has submitted a request to the Internal
Revenue Service seeking this exemption. Whenever the term
"organization" is used in this chapter, it shall mean the council,
except where the context indicates otherwise.
(f) "Registered school" means a school approved by the council
that meets minimum standards for training and curriculum in massage
and related subjects and that either is approved by the Bureau for
Private Postsecondary Education or the Department of Consumer
Affairs, or is an institution accredited by the senior commission or
the junior commission of the Western Association of Schools and
Colleges as defined in paragraph (3) of subdivision (a), is a college
or university of the state higher education system as defined in
Section 100850 of the Education Code, or is a school of equal or
greater training that is approved by the corresponding agency in
another state.
(g) For purposes of this chapter, the terms "massage" and
"bodywork" shall have the same meaning.
(h) "Operator of a massage business" means a person, whether owner
or nonowner, who manages or operates a massage business.
SEC. 2. Section 4601 of the Business and Professions Code is
amended to read:
4601. (a) The council shall issue a certificate under this
chapter to an applicant who satisfies the requirements of this
chapter.
(b) (1) In order to obtain certification as a massage
practitioner, an applicant shall submit a written application and
provide the council with satisfactory evidence that he or she meets
all of the following requirements:
(A) The applicant is 18 years of age or older.
(B) The applicant has successfully completed, at an approved
school, curricula in massage and related subjects, totaling a minimum
of 250 hours or the credit unit equivalent, that incorporates
appropriate school assessment of student knowledge and skills.
Included in the hours shall be instruction addressing anatomy and
physiology, contraindications, health and hygiene, and business and
ethics, with at least 100 hours of the required minimum 250 hours
devoted to these curriculum areas.
(C) All fees required by the council have been paid.
(2) New certificates shall not be issued pursuant to this
subdivision after December 31, 2015. Certificates issued pursuant to
this section or subdivision (a) or (c) of Section 4604 on or before
December 31, 2015, shall, after December 31, 2015, be renewed without
any additional educational requirements, provided that the
certificate holder continues to be qualified pursuant to this
chapter.
(c) In order to obtain certification as a massage therapist, an
applicant shall submit a written application and provide the council
with satisfactory evidence that he or she meets all of the following
requirements:
(1) The applicant is 18 years of age or older.
(2) The applicant satisfies at least one of the following
requirements:
(A) He or she has successfully completed the curricula in massage
and related subjects totaling a minimum of 500 hours or the credit
unit equivalent. Of this 500 hours, a minimum of 250 hours shall be
from approved schools. The remaining 250 hours required may be
secured either from approved or registered schools, or from
continuing education providers approved by, or registered with, the
council or the Department of Consumer Affairs. After December 31,
2015, applicants may only satisfy the curricula in massage and
related subjects from approved schools.
(B) The applicant has done both of the following:
(i) Successfully completed, at an approved school, curricula in
massage and related subjects totaling a minimum of 250 hours that
incorporates appropriate school assessment of student knowledge and
skills. Included in the hours shall be instruction addressing anatomy
and physiology, contraindications, health and hygiene, and business
and ethics, with at least 100 hours of the required minimum 250 hours
devoted to these curriculum areas.
(ii) Passed a massage and bodywork competency assessment
examination that meets generally recognized psychometric principles
and standards, and that is approved by the board. The successful
completion of this examination may have been accomplished before the
date the council is authorized by this chapter to begin issuing
certificates.
(3) All fees required by the council have been paid.
(d) The council shall issue a certificate to an applicant who
meets the other qualifications of this chapter and holds a current
and valid registration, certification, or license from any other
state whose licensure requirements meet or exceed those defined
within this chapter. The council shall have discretion to give credit
for comparable academic work completed by an applicant in a program
outside of California.
(e) An applicant applying for a massage therapist certificate
shall file with the council a written application provided by the
council, showing to the satisfaction of the council that he or she
meets all of the requirements of this chapter.
(f) Any certification issued under this chapter shall be subject
to renewal every two years in a manner prescribed by the council, and
shall expire unless renewed in that manner. The council may provide
for the late renewal of a license.
(g) (1) The council shall have the responsibility to determine
that the school or schools from which an applicant has obtained the
education required by this chapter meet the requirements of this
chapter. If the council has any reason to question whether or not the
applicant received the education that is required by this chapter
from the school or schools that the applicant is claiming, the
council shall investigate the facts to determine that the applicant
received the required education prior to issuing a certificate.
(2) For purposes of paragraph (1) and any other provision of this
chapter for which the council is authorized to receive factual
information as a condition of taking any action, the council shall
have the authority to conduct oral interviews of the applicant and
others or to make any investigation deemed necessary to establish
that the information received is accurate and satisfies any criteria
established by this chapter.
(h) The certificate issued pursuant to this chapter, as well as
any identification card issued by the council, shall be surrendered
to the council by any certificate holder whose certificate has been
suspended or revoked.
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).
SEC. 4. Section 4602.5 of the Business and Professions Code is
amended to read:
4602.5. (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 businesses, the council shall provide
information concerning a certificate holder, including, but not
limited to, the current status of the certificate, any history of
disciplinary actions taken against the certificate holder, the home
and work addresses of the certificate holder, and any other
information in the council's possession that is necessary to verify
facts relevant to administering the local ordinance.
(b) Upon the request of the council to any law enforcement agency
or any other representative of a local government agency with
responsibility for regulating or administering a local ordinance
relating to massage or massage businesses, the law enforcement agency
or local government agency is authorized to provide information to
the council concerning a certificate applicant or certificate holder,
including, but not limited to, the current status of any application
or local permit; any history of disciplinary action taken against
the certificate applicant or certificate holder; any information
related to criminal activity or unprofessional conduct allegedly
engaged in by a certificate applicant or certificate holder,
including, but not limited to, police reports and declarations of
conduct; the home and work addresses of the certificate applicant or
certificate holder; and any other information in the law enforcement
agency's or other local government agency's possession that is
necessary to verify facts or implement the provisions of this
chapter.
(c) The council shall accept information provided by any law
enforcement agency or any other representative of a local government
agency with responsibility for regulating, or administering a local
ordinance relating to, massage or massage businesses. The council
shall have the responsibility to review any information received and
to take any actions authorized by this chapter that are warranted by
that information.
SEC. 5. Section 4603 of the Business and Professions Code is
amended to read:
4603. It is a violation of this chapter for a certificate holder
to commit, and the council may deny an application for a certificate
or discipline a certificate holder for, any of the following:
(a) Unprofessional conduct, including, but not limited to, denial
of licensure, revocation, suspension, restriction, or any other
disciplinary action against a 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, or judgment shall be
conclusive evidence of these actions.
(b) Procuring a certificate by fraud, misrepresentation, or
mistake.
(c) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate,
any provision or term of this chapter or any rule or bylaw adopted
by the council.
(d) Conviction of any felony, misdemeanor, infraction, or
municipal code violation, or liability in an administrative or civil
action, that is substantially related to the qualifications,
functions, or duties of a certificate holder, in which event the
record of the conviction or other judgment shall be conclusive
evidence of the crime or liability.
(e) Impersonating an applicant or acting as a proxy for an
applicant in any examination referred to under this chapter for the
issuance of a certificate.
(f) Impersonating a certified practitioner or therapist, or
permitting or allowing an uncertified person to use a certificate.
(g) Committing any fraudulent, dishonest, or corrupt act that is
substantially related to the qualifications or duties of a
certificate holder.
(h) Committing any act punishable as a sexually related crime.
SEC. 6. Section 4603.7 of the Business and Professions Code is
amended to read:
4603.7. A certificate holder shall include the name under which
he or she is certified and his or her certificate number in any and
all advertising and shall display his or her original certificate at
his or her place of business. A certificate holder shall have his or
her identification card in his or her possession while providing
massage services.
SEC. 7. Section 4603.8 is added to the Business and Professions
Code, to read:
4603.8. A certificate holder shall, upon request at the location
where he or she is providing massage services, provide his or her
full name and certificate number to a member of the public, the
council, or a member of law enforcement or a local government agency
charged with regulating massage.
SEC. 8. 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 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. 9. Section 4613 of the Business and Professions Code is
amended to read:
4613. (a) Nothing in this chapter shall restrict or limit in any
way the authority of a city, county, or city and county to adopt a
local ordinance governing any person who is not certified pursuant to
this chapter.
(b) Nothing in this chapter is intended to affect the practice
rights of any person licensed by the state to practice or perform any
functions or services pursuant to that license.
(c) Nothing in this chapter shall be construed to restrict or
limit in any way the authority of a city, county, or city and county
to adopt a local ordinance restricting the opening of a new massage
establishment in a location in which a massage establishment has been
closed due to criminal activity.
