MLN Vol.4.No.2

Massage Law Newsletter

Vol. 4, No.2                                      ISSN 1073-5461                                        April 1998

DOES PA SENATE BILL 1171 VIOLATE LAWS THAT

PROTECT FREEDOM OF SPEECH AND

FREEDOM OF THE PRESS?

PROHIBIT DISCRIMINATION AND ARBITRARY

GOVERNMENTAL INTERFERENCE?

PROHIBIT RESTRAINT OF TRADE, MONOPOLIES,

AND UNFAIR TRADE PRACTICES?

Albert Schatz, Ph.D.

CONSTITUTIONAL LAW AND SENATE BILL 1171

The following legal information was obtained from Corpus Juris Secundum, an encyclopedia of American law.  For brevity, we have not listed the numerous citations in the sections which are quoted.

"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.

"In other words, 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."

IS SENATE BILL 1171

NEEDED?

How does Senate Bill 1171 "promote the public order, safety, health, morals, and welfare"?   

What "paramount and compelling public interest" does Pennsylvania have in regulating massage and other kinds of bodywork?

SENATE BILL 1171

Will not reduce prostitution

There is no convincing evidence that Senate Bill 1171 or any other kind of state regulation of massage will reduce prostitution.

Will not protect

the public from harm

There is no evidence that Senate Bill 1171 or any other kind of state regulation of massage is needed to protect the public from harm by massage therapists because massage has not harmed people.

There is no convincing evidence that Senate Bill 1171's educational requirements would protect the public from harm caused by massage therapists, if the public did indeed need that protection.

More people are bitten by dogs than are injured by massage therapists. More people are struck by lightning than are injured by massage. There is only ONE case of POSSIBLE harm in 19,240,000 massages.

DOES SENATE BILL

1171 VIOLATE

The First Amendment?

 Does Senate Bill 1171 violate the First Amendment's protection of  freedom of speech and freedom of the press? Does Senate Bill 1171 unjustifiably prohibit massage therapists and other bodyworkers, who don't meet the Bill's educational requirements, from using certain words and phrases in speaking about and advertising their business activities, even though the practitioners may have years of experience without harming anybody?

With respect to the licensure fee which Senate Bill 1171 will require, can a fee be charged for the exercise of First Amendment rights? (Murdock v City of Jeanette, 319 U.S. 105).

Does the First Amendment not protect the dissemination and receipt of ideas, information, and knowledge, and the association of persons for these purposes? (N.A.A.C.P. v Alabama. 2 L. Ed. 2d 1488)

Laws against

discrimination?

Does Senate Bill 1171 unlawfully discriminate against massage therapists and other bodyworkers who do not comply with its educational requirements? There is no convincing evidence that Senate Bill 1171's educational requirements would protect the public from harm caused by massage therapists, if the public did indeed need that protection - which it does not.

Laws that prohibit restraint

of trade, monopolies, and

unfair trade practices?

Does Senate Bill 1171 violate laws which prohibit restraint of trade, monopolies, and unfair trade practices? Does the Bill provide special interest groups with  monopoly control of massage and bodywork? If so, is this not detrimental to the health, safety, and welfare of the public because it restricts access to individuals who are not members of the special interest groups that control these professions, even though the individuals may have many years of experience without harming anybody?

ARE SENATE BILL 1171'S

REQUIREMENTS ILLEGAL?

What legal justification is there for Senate Bill 1171's educational requirements other than their practical usefulness which, in this case, would be to prevent harm? But massage therapists, regardless of their formal training and even if they are self-taught, have not harmed people. Therefore, if Senate Bill's educational requirements are not needed to prevent harm, do they, in effect, violate laws that prohibit restraint of trade?

The fact that 24 states regulate massage does not necessarily mean those laws are legal. Some laws which have been in effect for many years were eventually declared illegal.

VOLUNTARY TITLE

PROTECTION

This is the only kind of state massage regulation which is justifiable. With voluntary title protection, everybody can do massage. Those who want a state credential can get it. Those who do not want to be state-credentialled are not required to be. Massage therapists who are state-credentialled call themselves Certified Massage Therapists. Others, who are not certified, call themselves Massage Therapists.

Voluntary title protection acts should not define educational requirements. The acts should recognize, but not accredit, legitimate certifying agencies which have educational requirements. The acts should avoid creating monopoly control by accrediting only special interest groups. Attorneys Kim A. Zeitlin and Margaret L. Bloom, believe the U.S. Supreme Court Case No. 93-639 (Ibanez) "has created 'establishment law' for the protection of private certification programs and titles against undue state interference." (Touch Therapy Times, November, 1994)

National certification should also be voluntary, especially because an individual's score on a written test is not related to her competence in terms of on-the-job performance. This raises the question: Do state laws which require a passing grade on a written test violate the above-mentioned constitutional and other laws?

This report presents the opinions of the author, who is not an attorney, and is not to be construed as legal advice.

AN OPEN LETTER TO BARBARA MIKOS

To: Barbara Mikos -  Second Vice President,Pennsylvania Chapter of  the American Massage Therapy Association® (AMTA) andofficer in charge of Government Relations

From: Albert Schatz

This concerns the questionnaire you distributed to members of the Pennsylvania Chapter of AMTA last December, In that questionnaire, you requested information about:

1. harm caused by untrained massage therapists, and

2. the extent to which untrained massage therapists pose a threat to the safety of the public.

I have already pointed out that your questionnaire has serious limitations. However, since your questionnaire exists, I am now asking you how and when will you make the results of your survey available? I and others would like to know:,

1. How many people replied to your questionnaire?

2. How much well-documented harm did they report, and how serious were the injuries?

3. Does the amount of well-documented  harm

justify the need for Senate Bill 1171 to protect the public from that harm?

To the best of my knowledge, your December, 1997, questionnaire is the first time that proponents of state licensure in Pennsylvania have attempted to find out how much, if any, harm is caused by massage therapists.

The Pennsylvania Licensure Coalition - which wrote Senate Bill 1171, and of which you were treasurer - promoted state licensure "first and foremost to protect the public from harm."

But the Coalition has not provided any evidence that massage therapists have harmed their clients..

Without harm, licensure is obviously not needed "to protect the public from harm?"

The Coalition wrote Senate Bill's educational requirements "for that public protection."

Without harm, those educational requirements are also obviously not needed.

If I have misrepresented your position, please let me know. I shall publish a correction.

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