MLN Vol.18, No.3

Massage Law Newsletter

www.healingandlaw.com

Vol. 18, No. 3                                   ISSN 1073-5461                                      February 2001

A  LETTER TO GAYLE E. BURDICK  ABOUT

MINNESOTA HOUSE BILL 401 AND SENATE BILL 616

Part 1: Minnesota law for the regulation of professions.

Part 2: Bills HF 401 and SF 616 violate the right tocommercial speech .

Part 3: Why are Bills  HF 401 and SF 616 needed?

Part 4: Massage parlors.

Part 5: Sexual harassment by male massage therapists.

Appendix A: What happened in Alameda County, California.

References.

To:Gayle E. Burdick. Coordinators, Coali-tion  of Massage Therapists and Oriental Bodyworkers

From:Albert Schatz and Mary Brewster

Your article "Voluntary state registration for bodywork therapists?" (in the "Politics & Natural Health" section of the February, 2001, issue of TV Wellness) referred to the two bills (HF 401 and SF 616) that are now in the Minnesota legislature.  The purpose of these bills is to regulate massage therapists and oriental bodyworkers. In this report, we use the term "massage therapists" to refer to massage therapists and oriental bodywork therapists.

Your article raises important  questions about the nature of and alleged need for these bills. We are therefore asking you to provide the information which we request and give us permission to publish your reply in the Massage Law Newsletter <www.healingandlaw.com>.

PART 1: MINNESOTA LAW FOR

 THE REGULATION OF PROFESSIONS

Bills  HF 401 and SF 616  permit anybody to do massage, regardless of training. The bills therefore recognize that unregulated massage therapists have not caused enough harm to justify a need for state regulation to protect the public from that harm.

Would you therefore please explain how these bills meet the following  requirements of Minnesota law that governs the regulation of professions?

Chapter 214. Policy and regulation 214.001 includes Subdivision 2. of 214.001, which reads as follows:

"Criteria for regulation. The legislature declares that no regulation shall be imposed upon any occupation unless required for the safety and well being of the citizens of the state. In evaluating whether an occupation shall be regulated, the following factors shall be considered:  "(a) Whether the unregulated practice of an occupation may harm or endanger the health, safety and welfare of citizens of the state and whether the potential for harm is recognizable and not remote..."

Georgia senators researched the issue of harm, and found no well-documented evidence that unregulated massage therapists had actually harmed anybody.  They therefore concluded,  "The potential for harm is" ... "remote."1 Consequently, bills  HF 401 and SF 616 are not needed to protect the public from harm.

PART 2: DO BILLS HF 401 AND SF 616 VIOLATE THE RIGHT TO COMMERCIAL SPEECH?

If there is no harm, is it illegal for the state to enact a law that restricts the use of titles?

A U.S. Supreme Court decision

differentiated  actual harm from the potential for harm with respect to titles

This decision (in Ibanez v. Florida Dept. of Business and Professional Regulation, Board of Accounting. No. 93-539. June 13, 1994) "created 'established law' for the protection of private certification programs and titles against undue state interference."2  This decision and other decisions (which it cites) raises  the questions as to whether a state's Title Protection Act can restrict the use of a title (such as "Massage Therapist") if the state has no well-documented evidence that massage therapists (who were using this title before the Title Protection Act was enacted) have actually harmed anybody. 

The decision tells us: "Truthful advertising related to lawful activities is entitled to the protections of the First Amendment... Misleading advertising may be prohibited."

"Only false, deceptive, or misleading commercial speech may be banned." "Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest."

"The States's burden is not slight; the free flow of commercial information is valuable enough to justify imposing on WOULD-BE REGULATORS the costs of DISTINGUISHING the truthful from the false, the helpful from the misleading, and THE HARMLESS FROM THE HARMFUL."

"We cannot allow rote invocation of the words ''POTENTIALLY misleading' to supplant the Board's burden to 'demonstrate that the HARMS it recites are REAL and that its restriction will in fact alleviate them to a material degree." "MERE SPECULATION OR CONJECTURE' WILL NOT SUFFICE."

AMTA's case against the State of

Maryland was based in large part on

the right to commercial speech and

antitrust laws3

The July/August, 1966, issue of the American Massage Therapy Association (AMTA) newsletter Hands On commented on the case as follows:

"Two key elements proved critical." AMTA-Maryland sued the State of Maryland and the Maryland physical therapy board in federal court in 1989, charging "charging that the physical therapy board's actions infringed on massage therapists' rights to commercial free speech and violated antitrust laws."4 Comments on and the text of the settlement were reported in Touch Therapy Times.5

 PART 3: WHY ARE BILLS HF 401

AND SF 616 NEEDED?

These are Title Protection bills. What well-documented evidence do you have that the public is better served in states which have Title Protection Acts, comparable to bills HF 401 and SF 616, than in states which do not regulate massage therapists?

If you have such well-documented evidence, what are the states in which the public is better served, and in what ways and to what extent (for each of those ways) is the public better served?

If you have no such well-documented evidence, why does Minnesota need bills HF 401 and SF 616?

Questions about the bills'

requirements

What well-documented evidence do you have that  the bills enable the public and prospective employers of massage therapists to identify allegedly qualified (i.e., adequately trained) massage therapists and differentiate them from allegedly unqualified (i.e., inadequately trained) massage therapists? If the bills cannot do this, of what use are they?

What well-documented evidence do you have that massage therapists who meet all the requirements of the bills are more competent in their hands-on work and do higher quality work than massage therapists who meet only the requirements for membership in AMTA or ABMP?

What well-documented evidence do you have that massage therapists who have passed the national certification examination are more competent in their hands-on work and do higher quality work than massage therapists who have failed the national certification examination? If you do not have this well-documented evidence, why do the bills require a passing grade on the national certification examination.?

What well-documented evidence do you have that massage therapists who have a 500-hour training are more competent in their hands-on work and do higher quality work than massage therapists in Texas who have a 250 hour training and a 50 hour internship? If you do not have such well-documented evidence, why don't the bills require the same training that Texas requires? Is it because massage schools in Minnesota would make less money if the Texas requirements were adopted?

 

What well-documented evidence do you have that there is a direct correlation between the hours of training that a massage therapist has and her hands-on competence?  

What well-documented evidence do you have that the public is not adequately protected and not adequately served by requiring  massage therapists to have only a business license and professional liability insurance?

PART 4: MASSAGE PARLORS

What are you talking about? Your undocumented allegations need clarification.

Your article tells us, "'The 'Freedom to Practice' law for complementary and alternative medicine ... practitioners" ... includes bodywork therapists" but  "does not offer them a much needed alternative to local massage parlor ordinances. State registration is a positive next step in the development of the bodywork profession in Minnesota."  Your second sentence implies that state regulation is "a much-needed alternative to local massage parlor ordinances."

Please give us examples of what you call "local massage parlor ordinances." How do these "local massage parlor ordinances" differ from what you call "local massage licensing ordinances"? Finally, what well-documented evidence do you have that bills HF 401 and SF 616 are "a much needed replacement for local massage parlor ordinances"?

The purpose of "local massage licensing ordinances" is to reduce prostitution whether it occurs in or outside of massage parlors. The only legal justification for state regulation of massage therapists is a well-documented need to protect the public from harm which is usually  considered physical harm.

Since "local massage licensing ordinances," which regulate massage therapists, and state regulation of massage therapists serve different purposes, how can the latter be "a much-needed alternative" for the former?

Bills HF 401 and SF 616 permit anybody to do massage, regardless of training. Therefore these bills recognize that unregulated massage therapists do not cause enough harm to justify the alleged need for state regulation to protect the public from harm. 

If  Minnesota has a state law and/or local ordinances which prohibit prostitution in or outside of massage parlors, why do you consider bills HF 401 and SF 616 "a much needed alternative to local massage parlor ordinances"?

The reality is that cities without and without local ordinances that apply to massage therapists, in states which do and do not regulate massage therapists, can and have closed down massage parlors. Appendix A provides information about massage parlors that were recently closed down in a community in California which does not regulate massage therapists.

What well-documented evidence do you have that state regulation of massage therapists has significantly reduced prostitution? If you do have such well-documented evidence, in what states has that reduction in prostitution occurred, when, and to what extent?

If you do not have such well-documented evidence, how do you justify your allegation that Bills HF 401 and SF 616 offer "a much-needed alternative to local massage parlor ordinances"?

Evidence that state regulation does not

reduce the incidence of prostitution 

Hawaii's 1992 Sunset Evaluation Update tells us: "The Honolulu Police Department reported that, instead of using massage as a front, prostitutes had shifted their activity to other fronts, such as escort and dating services."5

Reliable information about the relation of massage and prostitution is needed

There is a wealth of misunderstanding about massage therapists, prostitution, local ordinances, and state regulation. As a result, there is oversimplified, and self-serving wishful thinking.. This has created an idolatrous worship of hours of training and the national certification examination as a means of controlling prostitution by making it difficult for prostitutes to masquerade as massage therapists. 

The other side of this coin is the lack of well-documented evidence that local ordinances and state regelation have significantly reduced the incidence of prostitution. This unfortunate situation motivated us to publish two reports which focus the light of factual information in this area6,7 and Calvert's Letter about one of these reports.8

PART 5: SEXUAL HARASSMENT

BY MALE MASSAGE THERAPISTS

Why are you not concerned with sexual harassment?  There are more cases of sexual harassment than physical harm caused by massage therapists. Why are you more concerned with promoting a Title Protection bill (which is not needed as "an alternative to local massage parlor ordinances") than in reducing sexual harassment by male massage therapists? 

APPENDIX A:

WHAT HAPPENED IN ALAMEDA

COUNTY, CALIFORNIA

The February 8, 2001, issue of the Oakland Tribune (in Alameda County, California) published the following report which commented on massage parlors.

County to study old massage therapy rules

By Donna Horowitz

 Staff writer

"Two longtime Castro Valley massage therapists won't be put out of business by the county after all.

"Instead, Alameda County supervisors have asked staff to draft a variance to allow Maria Ledesma and Ruby Harper to continue operating without meeting requirements of a revised 1995 ordinance regulating massage practitioners.

"The women, who were supported by their customers, complained that it would be expensive and time-consuming to comply with the ordinance. They said it could cost up to $5,000 to update their massage licenses by undergoing further training and taking tests.

"Supervisor Nate Miley, siding with the women, said the board shouldn't be so rigid. The sheriff's department had recommended the board deny both applications.

"The ordinance requires massage therapists to obtain certification by the National Certification Board for Therapeutic Massage and Bodywork as well as membership in an approved state, regional or national professional group.

"Sheriff's Lt. C.D. Farruggia said the county originally tightened its massage ordinance to drive out prostitution businesses masquerading as massage parlors.

"He said the county's effort worked, but he acknowledged it made it more difficult for some legitimate businesses to operate.

"Following the board's action Tuesday, Farruggia said he plans to work with County Counsel Richard Winnie to develop a plan that would allow Ledesma and Harper to remain in business.

"Ledesma said she's had a license since 1982 and objected to the requirement that she join a professional group, saying she thought it was unconstitutional. Harper, in business since 1981, said it would pose a hardship for her to take a test, which would cost at least $200."

Editors' comment: Closing massage parlors is important. However, as the police department in Honolulu learned, if prostitutes cannot masquerade as massage therapists, they will move into dating, escort, and other services.6 

References

1.   Brewster, M., and Schatz, A. The defeat of Georgia's Senate Bill 300 (to regulate massage therapists to allegedly protect the public from harm) provided well-documented evidence that Massage is safe - There is no harm.  Massage Law Newsletter. 18(2):1-4. 2001.

2. Supreme Court Strengthens Right to Advertise Private Certification. Touch Therapy Times. 5(11):1. November.  1994

3.  Civil Action. Case No.  89-CV-3367. The Maryland Chapter of the American Massage Therapy Association, Inc versus State of Maryland et al.   Filed December 8, 1989, in the United States District Court for the District of Maryland. Baltimore, MD.

4. Maryland miracle bill passes after ten years. Hands On (AMTA newsletter). 12(4):1,6-7. July/August. 1966. 

5. "Maryland litigation ends" and "Text of Maryland  Settlement Agreement". Touch Therapy Times. 7(9): 1 and 2-4. September. 1996. 

6. Schatz, A. Prostitution and massage. Journal of Spiritual Bodywork. Special Issue No. 2. 1997.

7. Schatz, A. Should the Tucson. Arizona,.Committee of Massage Examinaers be abolosihed? Massage Law Newsletter. 4(1):1-8. 1998.

8. Calvert, R. N. More on prostitution and massage. Spiritual Massage Ministry Newsletter. 3(3):6-7. 1998.

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