MLN Vol.4.No.3

Massage Law Newsletter

Vol. 4, No.3                                      ISSN 1073-5461                                        May 1998

DO STATE MASSAGE LAWS AND LOCAL MASSAGE

ORDINANCES VIOLATE

 U.S. CONSTITUTIONAL LAW, U. S. SUPREME

COURT DECISIONS, AND

THE UNITED NATIONS' INTERNATIONAL

BILL OF HUMAN RIGHTS? 

Albert Schatz, Ph.D

Here's freedom to him who would read.

            Here's freedom to him who would write.

There's none ever feared

       that the truth should be heard,

But they whom the truth would indite.

                                      Robert Burns

                                      Scottish poet, 1751-1796

The author of this report is not an attorney. The report is not legal advice. It presents some legal information and the author's opinions. In this report, depending on the context, the term massage may refer to massage and other kinds of bodywork. The term regulation may apply to both state massage laws and local massage ordinances.

PART 1: WHY REGULATION

IS NOT NEEDED

In 1993, I co-authored the following two reports in the Fall, 1993, issue of Massage & Bodywork Quarterly:

1. Is state regulation of massage illegal?

2. The public doesn't need state regulation of massage. So who does want it and why?

Since 1993, I and others have published well-documented evidence that regulation

1. is NOT needed to protect the public from harm because massage therapists have not  injured people.1,2

2. does NOT significantly reduce prostitution.3

3. will NOT exempt practitioners from com- plying with local ordinances. They will still have to do that.

4. has NOT been shown to "raise standards.

"Those who talk about "raising standards" mistakenly equate standards with requirements.

The practical standard for each massage therapist is the level of competence (in terms of on-the-job performance) which satisfies her clients.  Trainings, written examinations, and practicums are requirements, which are not necessarily related to the standard and competence defined above.

5. is NOT needed to assure quality massage. Self-regulation can assure quality massage.

Why is there no serious discussion about self-regulation as an alternative to state regulation? The California Coalition on Somatic Practices considered private (self-) regulation and title protection as alternatives to state regulation; and concluded that state licensing does not solve all problems and may cause problems.4

6. is NOT needed to protect massage therapists from border conflicts and turf wars  in which other professions attempt to prevent them form doing massage.1

Voluntary title protection

Certification by voluntary title protection is an effective and democratic way to provide the above-mentioned protection to those who want it. Others, who don't want that protection, may do massage without it. Regulation is undemocratic because it is arbitrarily imposed on all massage therapists. It does not give them the choice that voluntary title protection offers.1

The usual arguments for licensure, and in particular the paternalistic arguments for licensure, are satisfied almost completely by certification alone. If the argument is that we are too ignorant to judge good practitioners, all that is needed is to make the relevant information available. If, in full knowledge, we still want to go to someone who is not certified, that is our business. - Milton Freedman

The issues that regulation raises are freedom and democracy5,6for massage therapists and their clients.

In a democracy, we should respect the right of each massage therapist to march to the tune of her own drummer, and not require all massage therapists to march to the tune of state-drummed regulation Each massage therapist should be free to develop and practice her own unique style of massage - provided she does not harm people.

People also have the right to choose the  practitioner they want, regardless of whether she is certified or not.

These rights of practitioners and clients are hallmarks of democracy.

 PART 2: WHAT RIGHTS

ARE VIOLATED

Regulation creates monopoly control which benefits special interest groups but is de- trimental to the public.

Regulation violates constitutional laws which prohibit arbitrary governmental interference with people's right to work.

"Regulation is" not "necessary to promote the public order, safety, health, morals, and welfare." (See Constitutional Law, Part 3)

There is no "paramount and compelling  public interest" in prohibiting people, who do not meet regulatory requirements, from doing massage. (See Constitutional Law, Part 3)

Regulation unjutifiably interferes with people's right to make an honest living by doing massage, which does not cause harm.

Regulation violates people's civil rights; that is, their rights to personal liberties set forth in Amendments to the U.S. Constitution and provided by certain acts of congress.

Regulation violates constitutional pro- tection of freedom of speech and freedom of the press. 

Regulation prohibits those who do not meet regulatory requirements from using certain words and phrases in talking about and advertising their massage business.

Regulation violates laws which prohibit restraint of trade, monopolies, and unfair trade practices.

More people are harmed

 by regulation than by massage

Regulation has prevented people from earning a living by doing massage because they are financially unable to meet regulatory requirements. This is economic harm.1,2,6

Regulation requires massage therapists to pay fees annually or biannually to meet unnecessary and unjustified requirements in order to continue doing massage. This is economic harm.

PART 3: WHAT CONSTITUTIONAL

LAW TELLS US

Corpus Juris Secundum, an encyclopedia of American Law, provides the information in Parts 3 and 4. 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 4: WHAT U.S. SUPREME COURT DECISIONS 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."7

PART 5: WHAT THE UNITED NATIONS' INTERNATIONAL BILL OF HUMAN RIGHTS TELLS US

The following two sections of The Inter- national Bill of Human Rights specifically refer to the right to work:

1. The Universal Declaration of Human Rights recognizes "the inherent dignity and ... the equal and inalienable rights of all members of the human family." Article 18 states, "Everyone has the right to work, to free choice of employ- ment..."

2. The International Covenant on Economic, Social and Cultural Rights recognizes that "these rights derive from the inherent dignity of the human person." Part 3, Article 6 states, "The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunities to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right."

The Preamble to the International Covenant on Civil and Political Rights states; "In acc- ordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom ... can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights.

According to Article 5, No "State, group or persons" have "any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms recognized herein or at their limitations to a greater extent than is provided for in the present Covenant."

The "Universal Declaration of Human Rights ... represents a major milestone in human progress, bringing realization to the" United Nations "Charter principle that universal respect for human rights is the common concern of all governments and all peoples."

"U Thant, Secretary-General of the United Nations, "called the Declaration and Covenants ... 'a Magna Carta for mankind.'"

PART 6: WHAT LE CHATELIER'S

LAW TELLS US

The French chemist Henri Le Chatelier (1850-1936) discovered what he called The Law of Reaction.

This law tell us how systems in equilibrium react to changes in temperature and pressure. When a force is brought to bear on a system in equilibrium, the system reacts in a direction which opposes the force.

Le Chatelier's law

applies to regulation

There is heat and pressure in the drive to regulate, and in the opposition to regulation. As a result, the balance between regulation and opposition to regulation is shifting on two levels.

On one level, more and more people are realizing that "A remarkable amount of effort" goes into "regulating a job that can't really hurt anybody."8

On another level, some states are considering deregulating occupations for which there have been few, if any, complaints for several years.9 In Georgia, a senate committee found no harm and decided not to regulate massage.10,11

PART 7: WHAT RESEARCH ON

HARM TELLS US

The Georgia chapter of the American Massage Therapy Association,® which promoted regulation, presented evidence to support its allegation that licensure is needed to protect the public from harm. The Georgia senate's Occupational Regulation Review Council evaluated this harm as follows:

"The applicant group indicated that there is a potential for a massage practitioner to cause physical harm to a client if the client has undisclosed or unidentified physical problems. In their submission of information to the Council supporting regulation of massage therapists, the applicant group provided copies of a number of anonymous, individual complaints lodged against individual massage practitioners.

"In addition, the applicant group orally described several other instances in which physical harm was believed to have resulted from a massage. This information, although helpful, does not suggest that widespread harm is resulting from massage therapists being unregulated for two reasons.

"First, many of these complaints alleged improper sexual advances which under existing state law is a criminal offense. Therefore, a legal remedy already exists for these types of complaints.

"Second, the total number of complaints and other incidents cited is quite small when considered in comparison with the number of massages performed in Georgia in a year. Representatives from the applicant group estimated that there are probably 1,000 massage practitioners in Georgia and that each practitioner performs an average of 20 massages per week. This information translates into over one million massages currently performed during a one year period." 10,11

The Georgia Occupational Regulation Review Council did that research for "neighboring southeastern states that regulate."10,11 Unfortunately, there is no on-going research to provide up-to-date information (for all states that regulate, and those that do not) on how many complaints have been filed against massage therapists, the nature of the complaints, and the disciplinary actions taken.

There's little if any harm

 elsewhere

The Canadian Province of Quebec conducted a two-year research project which reveled that nobody had been harmed by massage.1,2,12 Quebec does not regulate massage.

The Pennsylvania Licensure Coalition has promoted "licensure ... first and foremost to protect the public from harm." But the Coalition has not replied to repeated requests for information about what harm massage has actually caused.1,2,11

We therefore assume the Coalition is unable to provide evidence that harm has actually occurred because it has no such evidence. This means that the Coalition is unable to justify its allegation that, "licensure" is needed "first and foremost to protect the public from harm."

The California Coalition on Somatic Practices reported that, "We injure so few clients. As a result...  we will have difficulty meeting the Sunrise criteria." which requires proof of harm, "without manipulative presentation of data."4

I have not been able to obtain any information about the "few clients" who were allegedly injured. It therefore appears that the term "so few clients" was used simply to indicate that any harm, which might have occurred, was so minimal that it would not justify regulation to protect the public.

 

What dog bites tell us

The following information about dog bites is a good example of well-documented harm.

About 4.5 million people in the U.S. are bitten by dogs each year. About 334,000 victims, half of whom are under age 15, receive emergency room treatment which costs over $100,000,000. "The costs are even higher when additional medical care, such as cosmetic surgery and follow-up doctor visits are factored in... The problem is so acute that the Insurance Information Institute put a $1 billion figure on what dog bites cost the insurance industry in homeowner claims."13

Comparable data are published for other kinds of harm,1 but not for massage - despite allegations that the public needs to be protected from that harm.

PART 8: WHAT REGULATION OF

 OTHER OCCUPATIONS

TELLS US

More and more people are realizing that regulation "has more to do with maximizing the income of the practitioners than with protecting the public."8 Here are two examples.

Home decorating

"The Washington, D.C. city council recently decided to pass regulation governing the home decorating business. And who asked it to do this? Defrauded customers? No. Citizens endangered by hazardous mauve accents? No. It was the decorating industry, which saw the growing number of independent decorators - mostly women starting their own businesses - as a threat."14

Hair  braiding

African hair-braiders are also under attack. "Debra Nutall thought she was an American success story when she turned her hair-braiding skills into a business and got off welfare two years ago. Now the state cosmetology board in Tennessee is trying to close down her shop in a licensing dispute that some hair-braiders see as part of a broader battle over civil rights and economic justice.15

'They call us bootleg braiders in the papers, and it hurts.' Nutall said. 'We pay our taxes and make this as professional as we can. Would they rather have me back on welfare?' ... Nutall began braiding with friends and neighbors 17 years ago."

"'This is about money, race, politics, control, and power, all in that order,' said Taalib-Din Abdul Uqdah, who runs a Washington salon and heads the American Hairbraiders & Natural Hair Care Association. "This is a fight for economic liberty, and justice.'"

Some "states are pushing [African hair braiders] to get cosmetology licenses that can require up to 2,000 hours of study, often on subjects having little to do with braiding."

"In this fight ... the stylists have found allies ranging from members of the Congressional Black Caucus to the Washington-based Institute for Justice, a conservative legal group better known for its opposition to affirmative action programs."

"'Our interest is to recognize the right to earn a living.' said' Dana Berliner, an institute lawyer. 'It's a basic right.'"15

Back to massage

Dana Berliner "hit the nail on the head" for massage regulation. The unnecessary and unjustifiable requirements of regulation deny some people the right to earn a living by doing massage, which does not harm anybody.

I agree with Dana Berliner

 "THE RIGHT TO EARN A LIVING ... IS  A BASIC RIGHT"

Acknowledgement

I am grateful to readers and others who send me information which I might not otherwise be aware of, discuss ideas with me, make helpful suggestions., and keep me informed about what is happening in areas of mutual interest.  

Reference

1. 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. December. 1997.

2. Schatz, A., Tillotson, A., and Brewster, M. Since massage does not cause harm, why license massage therapists to prevent harm? Spiritual Massage Ministry Newsletter. 2(2):1-5.1996.

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

4. Special Report. California Coalition on Somatic Practices. September, 1996. (P.O. Box 5611. San Mateo. CA. 94402-0611.

5. Schatz, A. Our research on state regulation of massage is concerned with freedom. Freedom for massage therapists. Freedom from exploitation. Journal of Spiritual Bodywork. 3(3):5-8.1998.

6. Schatz, A. Should the Tucson, Arizona, Committee of Massage Examiners be abolished?  Massage Law Newsletter. 4(1):1-8. 1998.

7. 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.

8. Why we're so hooked on credentialism. Governing. p. 7. November. 1997.

9. Schatz, A. Pennsylvania does not need Senate Bill 1171 to regulate massage. Pennsylvania needs deregulation. Massage Law Newsletter. 2(4):1-4. 1997.

10. Review of Senate Bill 300 which proposes to regulate massage therapists. Georgia Occ- upational Regulation Review Council. Atlanta. October. 1997.

11. Schatz, A. The GA-AMTA's data reveal that massage is safe, 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.

12. Schatz, A. Guest Editorial. Massage therapists do not harm people. Massage Magazine. p. 7. March/April issue. 1998.

13. Uhlman, M. Study: Dog bites hurt millions each year. Philadelphia Inquirer. January 1, 1998.

14. Smith, S. How not to repair America. The Utne Reader. pp. 65-68. September/October 1997.

15. Shepard, P. Hair-braiding boom turns into a battle. San Francisco Chronicle. A4. October 2, 1997.

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