PART 1: THE NATURE OF THE CONTROVERSY
This report concerns the controversy in which the Tucson Committee of Massage Examiners is presently involved. The controversy has focused on whether the Committee's 1000-hour training for massage therapists is justified. As a result of the controversy, the Committee is considering whether it should reduce the 1000-hour training. But this training is not the core issue.
The controversy has been reported in two Tucson newspaper articles: Massage panel's future debated1 and Massage therapist licensing a touchy topic in Tucson.2 It was also reported on Channel 4 Eyewitness News on March 10,1998.
These news reports presented opinions about the 1000-hour training, but no well-documented evidence which justifies the 1000-hour training.
The core issue of the controversy involves
the Committee's regulatory license
The 1000-hour training is not the problem, but only a symptom of the problem. The core issue of the controversy is whether the Committee's regulatory license is in compliance with the requirements of constitutional law and U.S. Supreme Court reports. (See Parts 9 and 10)
In other words, what findings of fact provide specific and convincing evidence that:
1. Tucson has a "paramount and compelling public interest"(See Part 9) in denying a regulatory license to an individual who has less than a 1000 hour training?
2. The regulatory license is "reasonable, or reasonably necessary to promote the public order, safety, health, morals, and welfare?" (See Part 9)?
Why regulation of massage
State and local regulation of massage is highly controversial because it affects people's right to work and earn a living. People are upset when their livelihood is threatened. If they actively oppose that threat, controversy occurs.
This controversy is therefore basically about FREEDOM - the freedom to make an honest living by doing massage, which does not harm anybody, without having to pay a lot of money for the privilege of exercising this freedom.3
It is sufficient that a citizen enjoy his freedom. He isn't required to justify it. History does that for him. - Judge James C. Hill
The right to be left alone is indeed the beginning of all freedom. - U.S. Supreme Court Justice Louis Brandeis
PROPONENTS of regulation have an obligation to provide well-documented evidence that substantiates the alleged need for and benefits of the regulation they promote.
OPPONENTS of regulation are not only justified in demanding that evidence, but have a responsibility to do that in order to protect bodyworkers and the public from unnecessary laws. This is protection of freedom from arbitrary governmental interference. (See Part 9)
PART 2: THE NATURE
OF THIS REPORT
This report highlights the necessity to consider well-documented evidence to determine:
1. whether the Committee's regulatory license is in compliance with constitutional law and U.S. Supreme Court reports.
2. whether the 1000-hour training is needed.
3. whether the Committee is needed.
This report is an evaluation of the controversy by a scientific researcher. The author has been doing scientific research for more than half a century. He has been associated with massage for almost 20 years, and has done research on state regulation of massage for several years.
This report is also an evaluation of the con- troversy by a Professor of Education. In this capacity, the author has some 30 years of experience with curriculum development and evaluation.
The Committee's educational requirements for a regulatory license are a curriculum.
The information which this report requests is the Committee's evaluation of its curriculum.
PART 3: IS THE 1000-HOUR TRAINING NECESSARY?
1. What evidcence is there that the 1000-hour training has provided Tucson with more competent massage therapists than a 500- or 250-hour training would have provided?
2. How does the Committee define and objectively (quantitatively) measure competence in terms of on-the-job performance?
3. How does the Committee objectively differentiate between an adequate training and an inadequate training to assure competence in terms of on-the-job performance?
4. How does the Committee objectively measure an applicant's massage "skills and techniques"?
5. How valid are the Committee's methods of measurement?
information tells us
There is no agreement on how many hours of training are adequate.4 States which regulate massage vary considerably. Texas requires 250 hours of training with a 50-hour internship. Oregon requires 330 hours. Many states require 500 hours. New York requires 605 hours. Hawaii requires 570 hours. Nebraska requires 1000 hours.
In cities and states which do not regulate massage, some practitioners are self-taught, (from video instruction cassettes), learned massage by apprenticing with a massage therapist, or took trainings of 200 hours or less. These practitioners have had many satisfied clients, in some cases for several years, without harming anybody.
Dr. Tiffany Fields and her colleagues at the University of Miami, Medical School's Touch Research Institute teach people how to do massage in far less than 1000 hours. These people then massage individuals with a variety of health problems, some of which are quite serious. None of the patients were harmed despite the fact that those who massaged them had less than 1000 hours of training.
Husbands are taught, in 15 hours, to massage their pregnant wives.5 People are certified in foot massage (reflexology) after taking a one-day (7- hour) workshop.6
"A workshop on self-hatred and suicide and cooperation at the 1977 Feminist Forum in San Francisco was so full of pain that women ... began massaging one another. At that crucial moment, the experience of being touched, soothed, caressed, and cared for did more to heal permanently the self-hatred than any discussion would have. It was an essential first step in breaking down the patriarchal fiction that we are worthless and unlovable."7 The women had no massage training.
Only a few hours of training, or less, are needed to teach young children "how they can bring appropriate touch [massage] into their lives."8
In a research project, "some of [a] school's toughest kids ... most [of whom] have been abused and have trouble trusting adults ... were" with little training "sitting Indian-style on the floor, doing hand massage and moving freely."9
What the training for Cardiopulmonary
Resuscitation (CPR) tells us
People who administer CPR frequently treat individuals with life-threatening problems. The American Red Cross (ARC) offers 4 and 9-hour trainings for (CPR).4
These two CPR trainings clearly reveal that the Committee's 1000-hour massage training is:
11,000% GREATER than the 9-hour ARC training for CPR, and
24,600% GREATER than the 4-hour ARC training for CPR.
Why does Tucson's regulatory license require SO MUCH MORE training for massage therapists, who don't work on people with life-threatening health problems, than the American Red Cross requires for CPR?
PART 4: DOES THE REGULATORY LICENSE REDUCE PROS- TITUTION?
1. How effectively can massage regulation, which applies to only a very small number of women, reduce prostitution, when laws that prohibit prostitution and apply to all women do not effectively reduce prostitution?10
2. What are the statistics on prostitution in Tucson compared to other cities which do not have massage ordinances or have massage ordinances that require less that a 1000-hour training?
What the Tucson police report
does not tell us
On April 28, 1998, Tucson's Chief of Police Douglas F. Smith submitted a Memorandum on "Regulation of Massage Practices Pursuant to Tucson City Code" ... "To: [The] Public Safety Subcommittee."
This Memorandum does not provide any evidence that the regulation of massage has significantly reduced prostitution in Tucson.
What the Tucson police report
The Memorandum reported that, "Tucson Police Officers posing as massage clientele during undercover operations have observed practices by individuals who most certainly were untrained in therapeutic massage. The massages were also available in locations that were not sanitary (any hotel room, office, etc.)"
(Author's comment on the previous com- ment: No doubt, these same "practices" in similar "locations" can be "observed" in many if not all large cities whether they regulate massage or not.)
Sexual massage advertising
The Tucson Weekly Adult Entertainment section routinely has such ads (with phone numbers) as the following: (a) Beautiful Lady Will Do Heavenly Massage for you. (b) Full Sensual Body Massage, and (c) Sensual Massage (Not LMTs) Full Body Head to Toe.
Hawaii has a law, unchallenged for nine years, that eliminates sexual massage ads. "It is a violation to advertise: (a) the combining of massage with escort or dancing services; (b) performing massage in connection with body shampoo, tantra, or sensual healing (or other such trades); (c) in any advertising medium, the depiction or description of the human form in any manner that suggests anything other than professional massage.16
What Tucson needs
To prevent prostitutes from masquerading as massage therapists, Tucson obviously needs a law that prohibits sexual massage ads, not a Committee that regulates massage.
With such a law, the Tucson police would have more time for crimes such as auto theft, drugs, rape, burglary, robberies, and killings, which are much more serious threats to the personal safety of Tucson residents and the stability of society.
What's happening with police and
prostitution in other cities?
"In 1994, police in Boston, Cleveland, and Houston arrested twice as many people for prostitution as they did for all homicides, rapes, robberies, and assaults combined, while perpetrators evaded arrest for 90% of these violent crimes.10
"Cleveland [police] officers spent 18 hours - the equivalent of two workdays - on prostitution duty for every violent offense failing to yield an arrest.
"The average cost per bust was almost $2,000, and the average big-city police department spent 213 manhours a day enforcing prostitution laws... [it is estimated that] 16 large American cities spent more than $120 million to suppress prostitution in 1985. One Los Angeles official estimated that, in 1993, prostitution enforcement was costing the city more than $100 million a year."
"Locking up prostitutes and their customers is especially irrational at a time when more than 35 states are under court orders to reduce prison overcrowding.
" Gerald Arenberg, executive director of the National Association of the Chiefs of Police, has come out in favor of legalizing prostitution. Dennis Martin, president of the same association, declared that prostitution law enforcement is 'much too time-consuming, and police forces are short-staffed.'
"Maryland Judge Darryl Russell observed,'We have to explore other alternatives to solving this problem because this eats up a lot of manpower of the police. We're just putting out brush fires while the forest is blazing.'
"National surveys have shown that 94% of citizens believe that police do not respond quickly enough to calls for help, and the endless pursuit of prostitution is one factor that slows down many police from responding to other crimes."10
PART 5: DOES THE REGULATORY LICENSE PROTECT THE PUBLIC FROM HARM?
1. How many people have been harmed by massage therapists in communities that do not have massage ordinances or have ordinances which require less than 1000 hours of training?
2. What is the nature of their injuries? What evidence is there that the injuries were indeed caused by massage therapists? What training did those massage therapists have?
3. Does Tucson's regulatory massage license, which requires a 1000-hour training, provide the public with 100% more protection than states and communities which require only a 500-hour training?
4. From what harm is the Tucson public being protected? Does the Committee differentiate between potential harm and actual harm? The author of this report discussed these two kinds of harm and the issue of risk in a Guest Editorial Massage Therapists Do Not Harm People.11
Research tells us massage
is not harmful
We do not understand why Tucson needs a regulatory license to protect the public from harm by massage therapists.
We are not aware of any research which provides convincing evidence that massage has harmed a sufficient number of people, anywhere, with injuries that are sufficiently serious to justify state or local regulation.4,11,12,13
Research tells us massage
The following well-documented information tells us massage is safe:
1. More people are struck by lightning than are injured by massage therapists.4
2. More people have been killed in faulty elevators, in buildings in Chicago (12 deaths and many more injured in five years), than are injured by massage therapists.14
3. More people are bitten by dogs than are injured by massage therapists.
4. One study reported one case of possible harm in every 19,240,000 massages.13 Does Tucson need a regulatory massage license to protect the pubic from so little harm?
Research tells us massage causes no
harm in Georgia and Quebec
The Georgia state legislature did research which revealed that massage has not harmed anybody in that state.13 A two-year research project by the Canadian Province of Quebec revealed that massage had not harmed anybody.4 Neither Georgia nor Quebec regulate massage.
The cost of insurance
has gone down
The decreasing cost of insurance for massage therapists attests to the safety of massage.
I have been told that $65.00, which was the wholesale price of $1,000,000 of insurance in 1984, is now the wholesale price of $2,000,000 of insurance. While the price of many things has increased significantly since 1984, the cost of insurance for massage therapists has decreased. The same wholesale price of $65.00 buys twice as much coverage today as it did in 1984.
Who wants regulation,
In cities, counties, and states, which do not re- gulate massage:
1. The courts are not clogged with personal injury claims.
2. Consumer protection agencies are not lobbying for laws to regulate massage to protect the public from harm.
3. The lobbying for massage regulation is done by special interest groups which benefit financially from that regulation. They may tell state legislators that regulation is needed to protect the public from harm.
But those special interest groups do not provide well-documented case histories of people who have been harmed by massage therapists, even when they are asked for that information.4
PART 6: DOES THE REGULATORY LICENSE DISCRIMINATE?
1. Why does Tucson have a regulatory license for massage therapists, but a business license for all other bodyworkers?
2. What is the "paramount and compelling public interest" (See Part 9) for which massage therapists are treated differently than all other bodyworkers in Tucson?
3. If Tucson's massage therapists were required to have a business license, like other bodyworkers have, how would that adversely affect "the public order, safety, health, morals, and welfare" (See Part 9).
4. What findings of fact support the position that a regulatory license is absolutely essential, legitimizes the massage profession, or prevents unqualified massage therapists from harming clients?
5. Is the regulatory license a barrier to entry of massage therapists into the Tucson market? If so, does the regulatory license reduce competition in the Tucson market place?
6. Is the regulatory license an arbitrary and unreasonable burden upon people's right to take up residence in a location of choice where they can work in an occupation of choice? Is there a compelling governmental interest to justify infringement of this fundamental right for those who may want to reside in and do massage therapy in Tucson?15
7. There are more than 550 licensed massage therapists in Tucson. Why are four of the five appointed members of the Committee people who work for the Desert Institute of the Healing Arts?
Is this unbalanced representation (in the five appointed Committee members) an unfair trade practice which potentially fosters conflict of interest and restraint of trade?
The Committee's regulatory license requires a 1000-hour training. The Desert Institute of the Healing Arts, which is the only massage school in Tucson, offers the required 1000-hour training.
PART 7: IS THE COMMITTEE NEEDED TO PROCESS
1. How many complaints have been filed with the Committee? What was the nature of each of these complaints, and what action did the Committee take on each of these complaints?
2. Does the number and nature of these complaints justify the Committee's existence for the purpose of processing these complaints? Some states are seriously considering deregulating occupations for which there have been few or no complaints for several years.
3. Are there laws which would enable clients to file such complaints if the Committee did not exist?
PART 8: IS THE REGULATORY LICENSE MONOPOLY
(See Parts 9 and 10)
Jerry A. Green, Attorney for the California Coalition on Somatic Practices, wrote:
It seems that proponents of licensing are hopeful that a state license would mean more money, status, and power.4
According to Don Schwartz, Executive Director, The Trager Institute:
I think the move toward licensure is regrettable. I believe licensing creates state-sanctioned monopolies ... with the explicit goal of 'protecting the public,' but with the real effect of protecting those who hold the monopolies' respective entitlements, reducing information to the public, and restricting competition.4
When the right to practice a trade or profession depends not on personal initiative but also on the approval of some agency, ...the industry has laid the foundation for the exercise of monopoly power. No longer may anyone perform legal, medical accounting, architectural, or other tasks. The first condition for a competitive society - freedom of entry - is gone. - J. K. Lieberman
We must guard
Experience should teach us to be most on our guard to protect liberty when the ... purposes are beneficial. Men born of freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers lurk in insidious encroachment by men of zeal, well meaning but without understanding. - U.S. Supreme Court Justice Louis Brandeis
The passion to regulate the lives of others is deep-seated in many individuals. When this is based on political expedience, it is bad, and when it is inspired by an idealism which wishes to inflict benefits on others, it can become dangerous. - Sir Arthur Amies
So many human problems begin with someone saving someone else from something from which he hasn't asked to be saved. - Glen Doman
There is no subjugation so perfect as that which keeps the appearance of freedom, for in that way one captures volition itself. - Jean-Jacques Rousseau
Those who suppress freedom always do so in the name of law and order. - John Lindsay
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. - C. S. Lewis
A popular government without popular information, or the means of acquiring it, is but a Prologue to a Farce or Tragedy... A people who mean to be their own governors must arm themselves with the power that knowledge gives. - James Madison
'It can't happen here' is always wrong: a dictatorship can happen anywhere. - Karl Popper
PART 9: WHAT CONSTITUTIONAL
LAW TELLS US
Corpus Juris Secundum, an encyclopedia of American Law, provides the information in Parts 9 and 10. For brevity, we have not included the numerous legal citations listed in the original reports.
16A C. J. S. Constitutional law.
Occupation and Profession
"Section 497. - Discrimination. The right to transact business in a manner not contrary to public health, safety, morals, or public policy must be preserved to citizens without discrimination."
"Section 498. - Arbitrary Governmental Interference. The right to engage in a lawful business or occupation is protected against arbitrary or unreasonable governmental interference under the federal and state constitutions.
"The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, prohibit lawful occupations, or impose unreasonable and unnecessary restrictions on them.
"For one who is qualified, the pursuit of a business or occupation is a right, and not a matter of the state's grace or favor, or a privilege subject to withdrawal or denial at the whim of the state.
"Thus, the right may not be taken away or impaired unless there is a paramount and compelling public interest. The state may not, through regulation, deprive or infringe upon the right to pursue a lawful business or occupation, unless the regulation is reasonable, or reasonably necessary to promote the public order, safety, health, morals, and welfare.
"The regulation must have a definite, rational, reasonable relationship to the legitimate state interest sought to be protected, and the right remains except as limited by provisions of the regulating statute. Furthermore, the limitation must bear a relation to the calling or profession, and compliance must be reasonably attainable.
"An individual's right to engage in a lawful business may not be arbitrarily denied to him and granted to another under the guise of regulations. There is no arbitrary deprivation of the constitutional right where its exercise is not permitted because of failure to comply with conditions imposed for the protection of society."
PART 10: WHAT U.S. SUPREME COURT REPORTS TELL US
"Community Communications Co. v City of Boulder 455 US 40, 70 L Ed. 2d. 810, 102 S Ct. 835. Restraints of Trade, Monopolies, and Unfair Trade Practices Section 11 - city ordinance - exemption from antitrust scrutiny.
"2. A city's ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the state itself in its sovereign capacity, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy."
"Constitutional Law Section 47 - sovereign authority - cities, counties, and other bodies.
"3. All sovereign authority within the geo- graphical limits of the United States resides either with the government of the United States, or with the states of the union; there may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in subordination to, one or the other of these."
Restraints of Trade, Monopolies,
and Unfair Trade Practices
"Section 9 - federal antitrust laws - state action exempt
"4. When a municipality's action is challenged as anticompetitive and the municipality claims that its action is exempt from liability under the federal antitrust laws as a state action, the requirement for such a claim of clear articulation and affirmative expression by the state of the policy being implemented by the municipality's action is not satisfied when the state's position is one of mere neutrality respecting the municipal action challenged as anticompetitive."
"Section 11, 64 - federal antitrust laws - municipalities as "persons" covered
"5. The federal antitrust laws, like other federal laws imposing civil or criminal sanctions upon 'persons' apply to municipalities as well as to other corporate entities."
"Section 11, - federal antitrust laws - state action exemption - state's subdivisions
"6. When the state itself has not directed or authorized an anticompetitive practice, the state's political subdivisions in exercising their delegated power must obey the antitrust laws."
California Motor Transport Company v Trucking Unlimited, 30 L. Ed. 2d 912. "When there is a pattern of activity indicating a combination or conspiracy resulting in monopolization, price fixing, or which deters actual or potential competition or which otherwise results in restraint of competition, the means used to achieve this result may be legal and yet if the result is in violation of the antitrust laws of the United States the means are also illegal, and treble damages may be available for those found to be liable.
"Combinations which use governmental powers, administrative positions, or misuse of legal procedures have been found by the U.S. Supreme Court to be subject to liability.
"If the end result of the activities of a combination of entrepreneurs is unlawful as violative of the antitrust laws, it matters not that the means used in violation may be lawful."
"The Supreme Court's decision in the City of Lafayette v. Louisiana Power & Light Co. case erased all doubt as to the status of cities under the federal antitrust laws. The Court held that cities were within the definition of "persons" under the antitrust laws and not only could sue, but could be sued as parties defendant for violations of the antitrust provisions.
"The court's decision came as a shock to cities who had been functioning under the mistaken notion that their status as political subdivisions of the state insulated them from antitrust liability."18
The author of this report is inspired by TOM PAINE who was born in Glasgow in 1725 and came to the Colonies in 1767.
Paine lived in Philadelphia where he worked as a book auctioneer, bookbinder, and bookseller. As a result of his writing, he became "the penman of the Revolution.
He presented just those arguments which every American could understand, and which appealed almost equally, to" everybody,
"He spoke for independence in accents which everyone could understand.... He was, with Voltaire, the most effective agitator for his time; he was, without exception, the most effective agitator in American history.
"If he had genius, it was the genius of making complex issues simple, in language that was memorable and with passion that was contagious...
"What Paine wrote was indeed the common sense of the matter - so it seemed at the time, so it seems even now.... Freedom ' he said, "had been hunted around the globe; reason was considered as rebellion." Thomas "Jefferson sent over a ship just to bring him back home" from Europe."17
We're bringing Tom back home again. We need his clarity and insight to help folks understand what's going on with regulation of massage.
We also acknowledge TAYLOR GRANT, a Philadelphia news analyst and "an opponent of censorship and an advocate of free speech. His speeches often dealt with the subject of silence being 'liberty's worst enemy.' He railed against censorship and what he viewed as an 'un- precedented number of repressive measures instituted by government and quietly accepted by the people."19
1. Peckham, N. Massage panel's future debated. Tucson Daily Citizen. March 31, 1998.
2. Lewis, B. Massage therapist licensing a touchy subject in Tucson. The Oro Valley Explorer. July 24, 1997.
3. Schatz, A. Our research of state regulation of massage is concerned with Freedom. Freedom for massage therapists. Freedom from exploitation. Journal of Spiritual Bodywork. 3(3): 5-8.1998.
4. Schatz, A. Follow the money trail to find out why scare tactics tell us secular massage is harmful. Journal of Spiritual Bodywork. Special Issue No. 4. pp. 1-14. 1997.
5. Napolitano, R. Teaching prenatal massage to pregnant couples. A worthwhile mission for massage therapists and bodyworkers. Massage & Bodywork. pp. 94-97. Spring. 1998.
6. National Center for Wellness & Health Promotion. Silver Spring. MD.
7. Inglehart, H. The unnatural divorce of spirituality and politics. pp. 405-414. In The Politics of Women's Spirituality. Essays on the Rise of Spiritual Power within the Feminist Movement. Edited by Charlene Spretnak. Anchor Books. New York. 1982.
8. Eabry, S. Book review of The Art of Touch: A Massage Manual for Young People, by Chia Martin. Massage Magazine. p. 153. January/February. 1998
9. Reading, Writing, and Relaxation. Mind-Body Connection. News from the Center for Mind-Body Medicine. Washington, D.C. Fall. 1995.
10. Schatz, A. Prostitution and massage. Part 1: State regulation of massage and local ordinances do not reduce prostitution. Part 2: The reality of prostitution. Journal of Spiritual Bodywork. Special Issue No. 2. pp. 1-10.1997. 11 Schatz, A. Guest Editorial. Massage therapists do not harm people. Massage Magazine. p. 7. March/April. 1998.
12. Spiritual Massage Ministry Newsletter. 2(2):1-8. 1996.
13. Schatz. A. The Georgia Chapter of AMTA's data reveal that massage is safe and not harmful. Licensure is not needed to protect the public from harm which does not occur. Spiritual Massage Ministry Newsletter. 3(2):1-4. 1998.
14. Why we're so hooked on credetialism. Governing. pp.7-8, November 1997.
15. (U.S. Supreme Court citations: Dunn v Blumstein 405 US 330, 31 LEd. 2d 274, 92 S Ct. 995 (1972); Memorial Hospital v Maricopa County 39 LEd 2D 306; Shapiro v Thompson 394 US 618, 22 LEd. 2d. 600, 89 S Ct. 1322 (1969)
16. Clute, E. Hawaii law effectively eliminates sexual ads. Massage & Bodywork. pp. 40-42. Summer. 1998.
17. Thomas Paine & Common Sense. A Special Introduction by Henry Steel Commager for the book Common Sense by Tom Paine. The Press of Colish. Mount Vernon, N.Y. 1976.
18. Thomas, R.C. City of Lafayette's State Action Test Reformulated: A Meaningful Standard of Antitrust Immunity for Cities. Arizona State Law Journal, page 345.1980.
19. Drill, H. Obitutary. Taylor Grant, 85, broadcasting pioneer.. Philadelphia Inquirer. February 25, 1998.