New Legislation Limits Local Governments Regulatory Authority of Massage Establishments

Governor Schwarzenegger signed Senate Bill 731 (Oropeza) which provides for voluntary statewide certification of massage therapists and massage practitioners by the Massage Therapy Organization (“MTO”), a new nonprofit organization comprised of representatives selected from various agencies.

The League of California Cities and the California State Association of Counties each have the option to select one member of the Organization. This Legislation, which takes effect September 1, 2009, grants the MTO the authority to issue massage therapy certificates to qualified applicants, which entitle the holder to practice massage therapy throughout the state without having to comply with most local government regulations. This Legislation will expire on January 1, 2016 unless later enacted legislation deletes or extends that date. This new law forces local governments to modify regulations related to massage therapists and massage establishments to exempt statewide certificate holders from compliance with local ordinances.

Certificates Issued by the Massage Therapy Organization

The Legislation, codified in Business and Professions Code Section 4600 et seq., creates two levels of certification for massage therapists dependent on the educational background of the applicant. As set forth in Business & Professions Code Section 4601, the MTO will issue:

• “Massage Practitioner” certificates to applicants who have a minimum of 250 hours of education from state-approved schools; and
• “Massage Therapist” certificates to applicants who have passed a massage and bodywork competency assessment exam or have completed 500 hours of education, with half of those hours from state-approved schools.

However, massage practitioner certificates will only be issued until December 31, 2015, at which time all persons applying for a new certificate must meet the massage therapist standards. Certificates must be renewed with the MTO every two years.

Notwithstanding the educational requirements set forth above, until January 1, 2012, the MTO will accept applications for massage practitioner certificates from applicants who do not meet the educational minimums set forth in the bill, but who qualify under three categories:

• Any person who possesses a current valid massage license or permit from a local government evidencing that the person has completed at least one hundred hours of education, the person has been practicing for at least three years, and the person has provided at least 1,000 hours of massage to members of the public.
• Any person who has completed at least 100 hours of education, has been practicing at least three years, and has provided at least 1,750 hours of massage to members of the public.
• Any person who holds a current, valid certificate of authorization as an instructor at an approved massage school. If a person receives a certificate pursuant to one of these exceptions, he/she may continue to renew his/her license without completing any additional education requirements.

If a person applying for a massage practitioner certificate before January 1, 2012 meets the 100 hour educational requirement, but has not completed either 1,000 or 1,750 hours of massage on the public, then he/she may apply for a conditional certificate. A conditional massage practitioner certificate requires the applicant to achieve the 250 hour education requirement within five years of the issuance of the certificate, completing a minimum of thirty hours a year of continuing education. Without regard to the January 1, 2012, deadline, upon completion of the additional education hours, the conditional certificate holder will receive a massage practitioner certificate.

Regulation of Massage by Massage Therapy Organization

The MTO will have regulatory authority over certificate holders, including the responsibility to investigate applicants and the right to suspend or revoke massage certificates. The MTO will require all applicants to complete fingerprinting with the Department of Justice for the purpose of determining whether an applicant has criminal convictions related to qualifications or duties of a massage therapist or practitioner. The MTO may discipline certificate holders if certificate holders are arrested or charged with particular crimes, including prostitution related crimes, and massage certificates are subject to permanent revocation upon conviction.

What this Means to Local Governments

Local governments are expressly prohibited from requiring certificate holders to obtain a license or permit from the local government, and cannot require certificate holders to comply with local ordinances related to education or fitness to perform massage, including for example, health tests, continuing education requirements or background checks.

Local governments may continue to require owners of massage establishments to obtain business licenses, and may also enforce ordinances governing zoning and reasonable health and safety requirements for massage establishments or businesses. However, local governments have limited regulatory authority over sole proprietorships where the sole proprietor is a certificate holder, or massage establishments that only employ certificated massage persons. Under these circumstances, the zoning for the massage establishment cannot be stricter than the requirements applied to other professional or personal service businesses, nor can the building code or facilities requirement be stricter than those applicable to professional or personal service businesses. The Legislation does not define professional or personal service businesses, and the local government must determine the relevant zoning applicable to this particular category of massage establishments. A local government may still conduct reasonable inspections of the business to ensure compliance with applicable law, and require the owner to notify the local government of any intention to rename or change management of the business.

This Legislation does not pre-empt local governments from adopting regulations related to health and sanitation of massage establishments, including regulations related to the cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services. Furthermore, local governments may still authorize the suspension, revocation or restriction of a business license or permit issued to a massage establishment if violations of State law regulating massage therapists or practitioners, or violations of local ordinances regulating massage, occur on the business premises.

Overall, this Legislation is likely to require a significant overhaul of local government regulations related to massage therapy. Not only does this Legislation require local governments to adopt exemptions in local ordinances for massage practitioners and massage therapists licensed by the State, but it also may require amendments to zoning codes in order to satisfy the protections granted to certificated sole proprietors and massage establishments that only employ certificated massage practitioners or therapists.