New Legislation to Increase Local Authority over Massage Establishments

On September 18, 2014, Governor Brown signed Assembly Bill 1147 (“AB 1147”) into law. AB 1147 changes numerous provisions of the Massage Therapy Act, effective January 1, 2015. Current law restricts local control over massage therapy businesses that employ therapists and practitioners that have been certified by the California Massage Therapy Council (“CAMTC”). AB 1147 restores local regulatory authority over these businesses.

In 2009, Senate Bill 731 (“SB 731”) reduced the ability of cities and counties to regulate massage businesses and therapists. It also created the CAMTC to oversee the voluntary certification of massage therapists. Under current law, local governments are prohibited from requiring certified massage therapists to obtain further permits, licenses, or authorization to practice or open an establishment. Moreover, local governments cannot regulate massage businesses differently from other professional services businesses unless the regulation relates to health and safety requirements, requiring proof of state certification, or charging a business license fee.  Since SB 731’s enactment, some local jurisdictions have seen a significant increase in massage establishments and illicit activity in conjunction with those establishments.

AB 1147 reinstates local government regulatory control over certain aspects of massage businesses, most importantly, its land use authority. AB 1147 also expands the authority of counties and cities to regulate massage businesses through operating standards, subject to certain limitations delineated below, and permit, licensing, and certification requirements. AB 1147 also provides that the CAMTC may deny certification, or discipline a certificate holder, for engaging in sexually suggestive advertising, engaging in any form of sexual activity while providing a massage for compensation, dressing in a provocative manner, or committing an act punishable as a sexually related crime.

Although AB 1147 reinstates local authority over massage businesses, local regulation is still limited. Specifically, counties and cities may not:

• Prohibit a person of one sex from providing massage services to a person of the other sex;
• Define or regulate a massage business as adult entertainment;
•  Require a massage establishment to have windows or walls that do not extend from the floor to ceiling, or require other physical structures that interfere with a client’s reasonable expectation of privacy;
• Impose client draping requirements that extend beyond the covering of genitalia and female breasts;
• Prohibit a massage establishment from locking its external doors if the massage establishment is a business entity owned by one individual with one or no employees;
• Require a massage establishment to post any notice in an area viewable by clients that contains explicit language describing sexual acts, mentions genitalia, or specific contraception devices;
• Require certificate holders to undergo testing or a background check beyond the requirements of the Massage Therapy Act;
• Require individual certificate holder obtain any additional license, permit, certificate, or other authorization to provide massage for compensation;
• Impose a dress code requirement on certificate holders in excess of those already imposed by the Massage Therapy Act; and
• Prohibit certified massage therapists from performing massage on the gluteal muscles or engaging in any specific massage techniques recognized by the CAMTC.