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AB-1747 Massage therapy.(2013-2014)

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AB1747:v98#DOCUMENT

Amended  IN  Assembly  March 28, 2014

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 1747


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: NOYES   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.