California Assembly Bill AB1822 Amended / Bill

 BILL NUMBER: AB 1822AMENDED BILL TEXT AMENDED IN SENATE JUNE 23, 2010 AMENDED IN ASSEMBLY MAY 28, 2010 AMENDED IN ASSEMBLY APRIL 13, 2010 AMENDED IN ASSEMBLY APRIL 5, 2010 INTRODUCED BY Assembly Member Swanson FEBRUARY 11, 2010  An act to amend Sections 4600.5 and 4612 of, and to add Section 4612.5 to, the   An act to amend Sections 4600.5, 4602, 4602.5, 4603, 4604, and 4612 of the  Business and Professions Code, relating to massage therapy. LEGISLATIVE COUNSEL'S DIGEST AB 1822, as amended, Swanson. Massage therapy. Existing law, until January 1, 2016, provides for the voluntary certification of massage practitioners and massage therapists by a nonprofit Massage Therapy Organization, as defined and governed by a board of directors, and imposes certain duties on that organization. Existing law prohibits a city, county, or city and county from enacting an ordinance that requires a certificate holder to obtain any other license, permit, or other authorization to engage in the practice of massage. Notwithstanding that prohibition, existing law authorizes a city, county, or city and county to adopt and enforce any local ordinance governing zoning, business licensing, and reasonable health and safety requirements for massage establishments or businesses.  Existing law exempts from certain local regulations sole proprietorships, as defined, and massage establishments or businesses that only employ persons who are certified.  This bill would add 2 members to the board of directors of the Massage Therapy Organization who would be selected by specified peace officer associations  , and would limit the number of law enforcement professionals that may serve on the board of directors  . The bill would also clarify that a city, county, or city and county is authorized to require  any person who administers massage for compensation, or who owns a massage establishment or business, to also hold a business license or massage establishment permit or both   a specified background check of any owner or operator of a massage establishment who is not certified to practice massage by the organization  .  Existing law provides that the organization is authorized to take any reasonable actions to carry out the responsibilities set forth in the massage therapy provisions, including, but not limited to, issuing certificates to practice massage and disciplining certificate holders for unprofessional conduct.   This bill would authorize the organization to establish a definition of "unprofessional conduct" for purposes of discipline, as specified.   Existing law requires the organization to provide specified information concerning certificate holders upon request of local law enforcement or governmental agencies.   This bill would also require the organization to provide that information with respect to a certificate applicant.   This bill would make other technical and conforming changes.  Vote: majority. Appropriation: no. Fiscal committee: no. 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) A Massage Therapy Organization, as defined in subdivision (e) of Section 4600, shall be created and shall have the responsibilities and duties set forth in this chapter. The organization 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 organization shall be 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 organization. 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 California Community College Chancellor's Office, 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   (F) One member selected by the California Police Chiefs Association, unless that entity chooses not to exercise this right of selection.   (G) One member selected by the California State Sheriffs' Association, unless that entity chooses not to exercise this right of selection.   (2) No more than two law enforcement professionals may serve on the board at any given time and those members may only be selected by the organizations specified in subparagraphs (F) and (G) of paragraph (1).   (3)     The  organization's bylaws shall establish a process for appointing other professional directors as determined by the board.  (2)   (4)  The initial board of directors shall establish the organization, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the organization. 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 organization shall be subject to the rules of the Bagley-Keene Open  Meetings   Meeting  Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).  SEC. 2.   Section 4602 of the   Business and Professions Code   is amended to read:  4602. (a) The organization 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 organization, as authorized by this chapter or its bylaws, deems proper. (b) The organization 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 organization 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 (8) of  subdivision  (h)   (a)  of Section 4603, the organization 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 days at the address last filed with the organization that the certificate has been suspended, and the reason for the suspension. (C) Notify any business within 10 days that the organization has in its records as employing the certificate holder that the certificate has been suspended. (2) Upon notice to the organization that the charges described in paragraph (1) have resulted in a conviction, the suspended certificate shall become subject to permanent revocation. The organization shall provide notice to the certificate holder within 10 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 days.  SEC. 3.   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 organization shall provide information concerning a  certificate applicant or  certificate holder, including, but not limited to, the current status of the  application or  certificate, any history of disciplinary actions taken against the  certificate applicant or  certificate holder, the home and work addresses of the  certificate applicant or  certificate holder, and any other information in the organization's possession that is necessary to verify facts relevant to administering the local ordinance. (b) The organization 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 organization 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. 4.   Section 4603 of the   Business and Professions Code   is amended to read:  4603.  (a)    It is a violation of this chapter for a certificate holder to commit, and the organization may deny an application for a certificate or discipline a certificate holder for, any of the following:  (a)   (1)  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)   (2)    Procuring a certificate by fraud, misrepresentation, or mistake.  (c)   (3)    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 organization.  (d)   (4)    Conviction of any felony, or conviction of a misdemeanor that is substantially related to the qualifications or duties of a certificate holder, in which event the record of the conviction shall be conclusive evidence of the crime.  (e)   (5)    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)   (6)    Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a certificate.  (g)   (7)    Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder.  (h)   (8)    Committing any act punishable as a sexually related crime.  (b) For purposes of paragraph (1) of subdivision (a), the organization may adopt a definition of "unprofessional conduct" by resolution at a duly noticed public hearing.   SEC. 5.   Section 4604 of the   Business and Professions Code   is amended to read:  4604. (a) Notwithstanding Section 4601, the organization may grant a massage practitioner certificate to any person who applies on or before January 1, 2012, with one of the following: (1) A current valid massage permit or license from a California city, county, or city and county and documentation evidencing that the person has completed at least a 100-hour course in massage at a state-approved or registered school, or out-of-state school recognized by the organization as providing comparable education, has been practicing for at least three years, and has provided at least 1,000 hours of massage to members of the public for compensation. (2) Documentation evidencing that the person has completed at least a 100-hour course in massage at a state-approved or registered school, or out-of-state school recognized by the organization as providing comparable education, has been practicing for at least three years, and has provided at least 1,750 hours of massage to members of the public for compensation. For purposes of this subdivision, evidence of practice shall include either of the following: (A) A W-2 form or employer's affidavit containing the dates of the applicant's employment. (B) Tax returns indicating self-employment as a massage practitioner or massage therapist or any other title that may demonstrate experience in the field of massage. (3) Documentation evidencing that the person holds a current valid certificate of authorization as an instructor at an approved massage school, or holds the position of a massage instructor at a school accredited by an agency recognized by the United States Department of Education, or colleges and universities of the state higher education system, as defined in Section 100850 of the Education Code. (b) (1) After reviewing the information submitted under subdivision (a)  or upon the request of a local law enforcement agency  , the organization may require additional information necessary to enable it to determine whether to issue a certificate. (2) If an applicant under paragraph (1) of subdivision (a) or paragraph (1) of subdivision (c) has not complied with Section 4601.3, or its equivalent, when obtaining a license or permit from the city, county, or city and county, the organization shall require the applicant to comply with Section 4601.3 prior to issuing a certificate pursuant to this section. (c) (1) A person applying for a massage practitioner certificate on or before January 1, 2012, who meets the educational requirements of either paragraph (1) or (2) of subdivision (a), but who has not completed the required number of practice hours prior to submitting an application pursuant to this section, may apply for a conditional certificate. (2) An applicant for a conditional certificate shall, within five years of being issued the conditional certificate, be required to complete at least 30 hours of additional education per year from schools or courses described in paragraph (5) until he or she has completed a total of at least 250 hours of education, which may include massage education hours previously completed in a massage course described in either paragraph (1) or (2) of subdivision (a). (3) Upon successful completion of the requirements of this subdivision, the organization shall issue a certificate to the person that is not conditional. (4) The organization shall immediately revoke the conditional certificate issued to any person pursuant to this subdivision if the time period specified in paragraph (2) expires without proof of completion of the requirements having been filed with the organization. (5) Any additional education required by this section may be completed through courses provided by any of the following: (A) An approved school. (B) A registered school. (C) A provider approved by, or registered with, the organization or the Department of Consumer Affairs. (D) A provider that establishes to the satisfaction of the organization that its course or courses are appropriate educational programs for this purpose. (d) Nothing in this section shall preclude the organization from exercising any power or authority conferred by this chapter with respect to a conditional certificate holder.  SEC. 6.   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 practice massage by an individual who is certified pursuant to this chapter and who is practicing consistent with the qualifications established by his or her certification. 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 practice massage, may be enforced against an individual who is certified pursuant to this chapter. (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 governing zoning, business licensing, and 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   massage establishment  where the owner is the only person employed by that  business   massage establishment  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   massage establishment  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   massage establishment  . (3) A city, county, or city and county may charge a massage  business or  establishment a business licensing fee sufficient to cover the costs of the business licensing activities established by a local ordinance described in this section. (4) Nothing in this section shall prohibit a city, county, or city and county from adopting land use and zoning requirements applicable to massage establishments  or businesses  , provided that these requirements shall be no different than the requirements that are uniformly applied to  all  other  businesses providing  professional  or personal  services  businesses  , as defined in subdivision (a) of Section 13401 of the Corporations Code, or personal services  . (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  all  other  businesses providing  professional  or personal service businesses   services, as defined in subdivision (a) of Section 13401 of the Corporations Code, or personal services  , nor shall building or facility requirements be adopted that (A) require unlocked doors when there is no staff available to assure 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   establishment  . (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. (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 subject to subdivision (b) shall be responsible for the conduct of all employees or independent contractors working on the premises of the  business   establishment  .  Failure to comply with this subdivision may result in suspension or revocation of the owner 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  of the establishment  . (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 precludes a city, county, or city and county from requiring a background check, as described in Section 4601.3, of an owner or operator of a massage establishment who is not certified pursuant to this chapter.   SECTION 1.  Section 4600.5 of the Business and Professions Code is amended to read: 4600.5. (a) A Massage Therapy Organization, as defined in subdivision (e) of Section 4600, shall be created and shall have the responsibilities and duties set forth in this chapter. The organization 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 organization shall be 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 organization. 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 California Community College Chancellor's Office, 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. (F) One member selected by the California Police Chiefs Association, unless that entity chooses not to exercise this right of selection. (G) One member selected by the California State Sheriffs' Association, unless that entity chooses not to exercise this right of selection. The organization'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 organization, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the organization. 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 organization 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).   SEC. 2.   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 or Section 4612.5, 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 practice massage by an individual who is certified pursuant to this chapter and who is practicing consistent with the qualifications established by his or her certification, except as provided in Section 4612.5. 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 practice massage, may be enforced against an individual who is certified pursuant to this chapter, except as provided in Section 4612.5. (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 governing zoning, business licensing, and 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 or from requiring compliance with Section 4612.5. (3) A city, county, or city and county may charge a massage business or establishment a business licensing fee sufficient to cover the costs of the business licensing activities established by a local ordinance described in this section. (4) Nothing in this section shall prohibit a city, county, or city and county from adopting land use and zoning requirements applicable to massage establishments or businesses, provided that these requirements shall be no different than the requirements that are uniformly applied to other professional or personal services businesses. (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 assure 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. (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 subject to subdivision (b) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. 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.   SEC. 3.   Section 4612.5 is added to the Business and Professions Code, to read: 4612.5. Notwithstanding any other provision of this chapter, any city, county, or city and county may require any person who administers massage for compensation, or who owns a massage establishment or business, to also hold a business license or a massage establishment permit or both.