Statewide Regulation of Massage Businesses is Now Underway

By Katrina C. Gonzales

Last September 1, 2009, the California Massage Therapy Council (CAMTC) began issuing certificates for massage therapists and practitioners pursuant to the statewide certification program authorized by Senate Bill 731 (SB 731). This Bill went into effect on January 1, 2009, and created a new entity with regulatory authority over the certification of massage therapists and practitioners. It also imposed new limitations on the authority of cities to enact or enforce certain regulations applicable to CAMTC-certified individuals and massage establishments employing those individuals. By establishing a uniform set of standards and requirements for massage service providers, SB 731 represents a departure from what was traditionally a local, city-by-city approach to the regulation of massage businesses throughout the State.

SB 731

SB 731 was adopted in response to the Legislature’s concerns that reliance on local regulation of massage practitioners could lead to inconsistent requirements, provide insufficient protection to consumers harmed by a massage and to practitioners who could be viewed as associated with the sex trade. SB 731 created the CAMTC, the organization responsible for implementing the voluntary statewide certification program. The CAMTC is currently governed by an eleven-member board of directors, which includes representatives appointed by professional societies and massage schools as well as an appointee of the League of California Cities. This board is tasked with adopting bylaws to administer the program, establish fees, and solicit input from the massage community concerning its operations.

Requirements for CAMTC Certification

SB 731 authorizes the CAMTC to issue two levels of certification: CMT (Certified Massage Therapist) and CMP (Certified Massage Practitioner). Generally, an applicant for CMT must either complete a minimum of 500 hours of massage education or pass a massage competency test, while a CMP requires a minimum of 250 hours of massage education. In addition, applicants must be at least 18 years old and pay the required fees.

The CAMTC also has discretion to grant CMP status to individuals who apply before January 1, 2012 with a current, valid massage permit or license from a California city and documentation evidencing that the person has completed specified coursework, 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.

Applicants for CAMTC certification must undergo criminal background checks and submit fingerprints, which the CAMTC uses to obtain information regarding state and federal convictions. The CAMTC may deny or revoke certificates for unprofessional, fraudulent, or dishonest conduct, violations of CAMTC bylaws, and acts punishable as a sexually related crime. It may also discipline certificate holders through probation, suspension of the certificate, or any other means it deems proper.

Unfair Business Practices

SB 731 provides that it is an unfair business practice for any person to: (1) advertise that he or she is certified, registered, or licensed by a governmental agency as a massage therapist or massage practitioner, or (2) use the title of "Certified Massage Practitioner" or "Certified Massage Therapist" or any other terms, such as "licensed,""registered," or "CMT," that imply or suggest he or she is a certified practitioner or therapist without meeting SB 731's certification requirements.

It is unclear, however, whether non-CAMTC-certified massage therapists or practitioners, who are otherwise certified or licensed by a city or other local government, are subject to SB 731's prohibition. Individuals licensed or certified through a city's permitting process may be required to specify the nature of their local licensing to avoid the appearance of being "certified" pursuant to SB 731.

Limitations on Local Regulations

SB 731 contains provisions that directly limit a city's ability to regulate CAMTC-certified individuals and massage establishments employing only those individuals. SB 731 prevents cities from:

  • Requiring CAMTC-certified individuals to obtain a local massage permit or license;
  • Imposing some land use restrictions; and
  • Requiring massage establishments to meet specific building standards.

Thus, a city may not adopt ordinances that impose additional qualifications on CAMTC-certified individuals or impose zoning and land use restrictions on massage establishments to the extent such restrictions do not also apply to other professional and personal service businesses located within the city.

Additionally, SB 731 prohibits cities from imposing facility-based requirements on covered massage establishments. Specifically, a city may not require additional restrooms, shower, or other facilities that do not uniformly apply to other professional and personal service businesses. It also cannot require unlocked doors when no staff is available to assure a client's security or require windows providing a view into massage rooms that interfere with a client's privacy.

Permissible Local Regulations

Cities retain the ability to adopt local ordinances governing zoning, business licensing, and reasonable health and safety standards for all massage establishments. Further, SB 731 permits a city to:

  • Require that a massage establishment employing only CAMTC-certified individuals keep copies of its employees' CAMTC certificates or provide other evidence of their CAMTC certification;
  • Require CAMTC-certified individuals to file a copy of their CAMTC certification with the city;
  • Charge a business licensing fee sufficient to cover the costs of the city's business licensing activities;
  • Require the owner of a massage establishment to notify the city of any intent to rename, change management, or sell the establishment to another person; and
  • Enforce state and local regulations. A city may conduct inspections during regular business hours to ensure compliance with state and local requirements.

SB 731 does not restrict the ability of cities to adopt or enforce regulations applicable to individuals who are not certified by the CAMTC.

Conclusion

It is too early to tell whether statewide certification can resolve the issues that led to SB 731's adoption. Accordingly, cities should closely monitor the state certification program and continue to ensure that their own local regulation of massage therapy accomplishes the goals of health and safety for which such regulations were adopted in the first place.

FOR ADVICE FROM RW&G ON REGULATION OF MASSAGE PRACTITIONERS AND ESTABLISHMENTS, PLEASE CONTACT KATRINA C. GONZALES OR ANY OF THE ATTORNEYS IN THE FIRM'S PUBLIC LAW DEPARTMENT

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