HB 1739-FN – AS INTRODUCED
2006 SESSION
10/04
HOUSE BILL 1739-FN
AN ACT relative to body art practitioners.
SPONSORS: Rep. Dalrymple, Rock 4
COMMITTEE: Executive Departments and Administration
This bill establishes the board of licensed body art practitioners and revises the laws regulating the practice of body piercing, branding, and tattooing.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
06-2596
10/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT relative to body art practitioners.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Body Art. RSA 314-A is repealed and reenacted to read as follows:
CHAPTER 314-A
BODY ART
314-A:1 Regulation of Body Art Practitioners. The general court, in order to protect the health, safety, and welfare of the people of the state of New Hampshire, establishes a regulatory program for body art practitioners and body art apprentices, including establishing basic qualifications for all body artists.
314-A:2 Definitions. In this chapter:
I. “Applicant” means a natural person of least 18 years of age who has either applied for a practitioner license under RSA 314-A:8 or for an apprenticeship license under RSA 314-A:9, or has applied for a renewal license under RSA 314-A:11.
II. “Apprentice” means a person at least 18 years of age who works under a supervising licensee for the purpose of learning the practice of body art, under RSA 314-A:9.
III. “Board” means the board of licensed body art practitioners.
IV. “Body art” means the practice of physical body adornment by a licensee in any of the following classifications:
(a) Body piercing;
(b) Branding; or
(c) Tattooing.
V. “Body piercing” means the creation of an opening in human tissue, except piercing of the ear lobe, through which jewelry or other items are inserted.
VI. “Branding” means a permanent mark made on human tissue by burning with a hot iron or other instrument, excluding laser burning.
VII. “Commissioner” means the commissioner of the department of health and human services.
VIII. “Cosmetic tattooing” means the tattooing of permanent makeup onto the face of a client including in order to enhance eyebrows, lips, eyes, and moles; usually utilizing natural colors intended to resemble makeup.
IX. “Licensee” means a person to whom a license has been issued pursuant to this chapter.
X. “Practitioner” means a person who practices tattooing, body piercing, or branding under RSA 314-A:8.
XI. “Supervising licensee” means a body art practitioner licensed pursuant to RSA 314-A:8 for a minimum of 3 years in the body art classification that is being supervised, who is responsible for the supervision and performance of an apprentice.
XII. “Tattoo” means an indelible mark or figure fixed upon the surface of the body by the insertion of pigment under the skin or by the production of scars.
314-A:3 Board of Licensed Body Art Practitioners.
I. There is established a board of licensed body art practitioners, consisting of 5 members. Initial appointments shall be made pursuant to RSA 314-A:4. Thereafter, the board shall be appointed by the governor with consent of the executive council and shall consist of 4 licensed body art practitioners and one public member.
II. Members of the board shall serve 3-year terms, shall hold office until successors are appointed, and shall serve no more than 2 consecutive terms.
III. The governor and council may remove a member for malfeasance, misfeasance, or nonfeasance.
IV. The board shall serve without pay, except that each member of the board shall be reimbursed for in-state actual and necessary mileage incurred in the discharge of official duties of the board at the state employee mileage rate.
V. All members of the board shall have been residents of this state for at least 3 years immediately preceding appointment to the board.
VI. The licensed body art practitioners shall have been licensed body art practitioners in this state for at least 3 years preceding appointment.
VII. The public member shall not be, nor ever have been, a member of the body art profession nor have or have had a material, financial interest in either the provision of body art services or an activity directly related to the body art profession, including the representation of the board or profession for a fee at any time during the 5 years preceding appointment.
VIII. The commissioner shall provide administrative services to the board. All administrative services shall be at a cost to the board and shall be reimbursed by fees collected by the board through rules adopted under RSA 314-A:12.
IX. There shall be no monetary liability on the part of, and no cause of action shall arise against, the members of the board for any act done or proceeding undertaken or performed in good faith and in furtherance of the purposes of this chapter.
314-A:4 Initial Appointments; Meeting; Election of Initial Chairperson.
I. The initial appointments to the board shall be made by the governor with the consent of the executive council and shall be served as follows: 2 licensed body art practitioners who shall each serve a term of 2 years; and 2 licensed body art practitioners and one public member who shall each serve a term of 3 years.
II. The initial board members shall be appointed within 6 months of July 1, 2006. The initial chairperson shall be elected from among the board members no later than the second meeting of the board.
314-A:5 Duties of the Board. The board shall:
I. Conduct meetings as required.
II. Select a chairperson and officers from the members of the board.
III. Maintain a record of its acts and proceedings, including the issuance, refusal, renewal, suspension, or revocation of licenses.
IV. Adopt a code of ethics for the practice of body art in this state.
V. Establish appropriate disciplinary actions including penalties, sanctions, supplemental training requirements, and treatment and counseling requirements for licensees involved in violations of this chapter, which may include revocation of license, suspension of license, fines, community service, oral or written reprimand, additional education or training, and supervised training and counseling, including substance abuse treatment and counseling.
VI. Issue, suspend, revoke, renew, and deny licenses in accordance with rules adopted under RSA 314-A:12.
VII. Accept written complaints from the public against licensees, investigate any matter within its scope of authority under this chapter, and commence disciplinary action concerning licensees in accordance with the standards of this chapter.
VIII. Administer and enforce all provisions of this chapter, and rules adopted under the authority granted in this chapter.
IX. Take legal action against unauthorized practice in accordance with this chapter.
X.(a) At the same time the board files the text of a proposed rule with the director of legislative services under RSA 541-A:10, provide the commissioner with a copy of the text of the proposed rule. The commissioner shall monitor the rulemaking of the board to ensure that all rules are:
(1) Consistent with the provisions of RSA 541-A;
(2) Consistent with the specific statutory authority under which they are adopted;
(3) Consistent with other statutes; and
(4) Consistent with rules adopted by any board, commission, or agency.
(b) If the commissioner determines that a rule proposed for adoption is not consistent with the criteria established in subparagraph (a), the commissioner shall notify the board in writing and the board shall take corrective action.
XI. Establish fees pursuant to RSA 314-A:12, V which shall be sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the board for the previous fiscal year.
314-A:6 Administrative Attachment. The board of licensed body art practitioners shall be an administratively attached agency, under RSA 21-G:10, to the office of the commissioner.
314-A:7 Licensure Required. It shall be unlawful for any person to practice tattooing, body piercing, or branding without a separate license for each classification under RSA 314-A:2, IV in which that person wishes to practice, unless such person is exempt under RSA 314-A:10. Licenses issued by the board shall be valid for one year from the date of issue for apprentices, and 2 years from the date of issue for practitioners.
314-A:8 Practitioner Licenses.
I. Practitioner licenses shall be issued to any person who:
(a) Makes an application on a form prescribed by the board;
(b) Makes payment of fees required under RSA 314-A:12, V;
(c) Has been practicing body piercing, branding, or tattooing for not less than one year in an establishment, under the supervision of a person practicing body piercing, branding, or tattooing in compliance with the applicable statutes and rules of the state; and
(d) Has completed a course approved by the board in methods and techniques for the proper sterilization of instruments and materials used in body piercing, branding, or tattooing.
II. The board may grant a license to an individual who has been registered or licensed for at least one year under the laws of another state which maintains standards substantially equivalent to those of this state. Such licensure shall not preclude completion of an application and payment of appropriate fees.
314-A:9 Apprenticeship Licenses. An apprenticeship license shall be issued if an applicant is unable to comply with any of the provisions of RSA 314-A:8. A person shall remain an apprentice for at least one year in each classification in which the applicant wishes to practice, and until the supervising licensee attests that the apprentice is qualified to become licensed as a practitioner pursuant to RSA 314-A:8.
314-A:10 Exemptions. This chapter shall not apply to:
I. Any person licensed by the New Hampshire board of medicine, nor to any person providing restorative tattooing while practicing under the supervision of a physician or surgeon licensed by the New Hampshire board of medicine.
II. A person or facility which performs only ear lobe piercing.
314-A:11 Renewal of License; Reinstatement; Continuing Education Requirement.
I. Licenses issued under this chapter shall be subject to renewal in accordance with paragraph III and shall lapse unless renewed or reinstated in accordance with rules adopted by the board under RSA 314-A:12, III.
II. Renewal of licenses shall be contingent upon the licensee’s completion of continuing education related to the practice of body piercing, branding, or tattooing, for each classification in which the licensee is licensed, as follows:
(a) Three hours during the preceding year for apprentices; and
(b) Six hours during the preceding two years for practitioners.
III. All renewal licenses issued by the board shall be valid for:
(a) One year from the date of issuance for apprentices if the supervising licensee does not attest that the apprentice is qualified to become licensed as a practitioner.
(b) Two years from the date of issuance for practitioners.
IV. Licenses shall continue as valid until final action is exercised by the board on an application for renewal, provided that the application is filed before the expiration date of the license.
314-A:12 Rulemaking. The board shall adopt rules, under RSA 541-A, relative to the practice of body piercing, branding, and tattooing and the operation of a licensee’s establishment. Such rules shall include:
I. Standards of hygiene to be met and maintained by establishments and practitioners in order to receive and maintain a license to carry out the practice of tattooing, branding, or body piercing.
II. Standards for periodic spore testing and the manner in which records of spore tests are to be maintained and reported. All records shall be maintained for a minimum of 7 years.
III. Procedures for licensing, to include new, renewal, and lapsed licenses.
IV. Procedures for suspension, revocation and reinstatement of licenses.
V. The establishment of application fees for initial, renewal, apprentice, and practitioner licenses for each classification of body art listed under RSA 314-A:2, IV, and fees for administrative fines pursuant to RSA 314-A:18.
VI. Requirements for continuing education requirements.
VII. Procedures for investigations and hearings held under this chapter.
VIII. Disciplinary actions including penalties, sanctions, supplemental training requirements, and treatment and counseling requirements for licensees involved in violations of this chapter, which may include revocation of license, suspension of license, fines, community service, oral or written reprimand, additional education or training, and supervised training and counseling, including substance abuse treatment and counseling.
IX. Inspection of body piercing, branding, and tattooing establishments.
X. The maintenance of records pertaining to parental consent for minors, including names, dates of birth, type of identification used, and any other evidence of parentage or guardianship.
314-A:13 Prohibited Acts. No practitioner shall:
I. Use any piercing needle more than once, or use a tattooing needle on more than one person.
II. Fail to comply with any rule adopted pursuant to this chapter, order of the board, or any other provision of this chapter.
III. Hire as an employee to practice body piercing, branding, or tattooing, any person not licensed under this chapter.
IV. Perform cosmetic tattooing, as defined under RSA 314-A:2, VIII, on a person unless the person is licensed under RSA 313-A.
314-A:14 Body Art on Minors Prohibited.
I. Branding or tattooing a person under the age of 18 is prohibited and, in accordance with RSA 639:3, II, shall constitute endangering the welfare of a child.
II. Body piercing a person under the age of 18 is prohibited without consent of that person’s parent or legal guardian.
III. The consent required by paragraph II of this section shall be satisfied only by the parent or legal guardian being physically present at the time the body piercing is performed and, upon presenting evidence of the person’s status as parent or legal guardian, by signing a document declaring that the person is the parent or legal guardian of the minor on whom the piercing is to be performed. The consent shall indicate the location of the piercing on the minor’s body. Records shall be maintained for a minimum of 7 years.
314-A:15 License Revocation or Suspension. After notice and hearing the board may revoke or suspend any license issued under this chapter if the licensee:
I. Violates any provision of this chapter or rule or order adopted or issued pursuant thereto.
II. Knowingly makes any false statement on any application or any report required by the board.
III. Fails to respond to any lawful inquiry of the board.
314-A:16 Hearings.
I. The contested case provisions of RSA 541-A:31-36 shall apply when a person is aggrieved by a decision of the board under this chapter. Appeals shall be made in accordance with RSA 541.
II. The board shall take no disciplinary action without providing an opportunity for a hearing. At least 14 days prior to hearing, both parties to a disciplinary proceeding shall be served, either personally or by registered mail, with a written copy of the complaint filed and notice of the time and place for hearing. All complaints shall be objectively received and fairly heard by the board, but no complaint shall be acted upon unless in writing. A hearing shall be held on all written complaints received by the board within 3 months of the date notice of a complaint was received by the accused, unless otherwise agreed to by the parties. Written notice of all disciplinary decisions made by the board shall be given to both parties to the proceeding upon their issuance.
III. The board shall have the power to administer oaths or affirmations, preserve testimony, and may issue subpoenas, upon the approval of the attorney general, for witnesses and for documents relative to formal investigations or adjudicatory hearings.
IV. Witnesses summoned before the board shall be paid the same fees as witnesses summoned to appear before the superior court, and such summons issued by any justice of the peace shall have the same effect as though issued for appearance before such court.
314-A:17 Reinstatement. Any person whose license has been suspended or revoked by the board may apply to the board, in writing, to request a hearing for reinstatement. Upon a hearing, the board may issue a new license or modify the suspension or revocation of the license.
314-A:18 Administrative Fines. The board, after notice and hearing pursuant to rules adopted under RSA 541-A, may impose fines upon any person who violates any provision of this chapter or rules adopted pursuant to this chapter, in an amount not to exceed $2,000. Rehearings and appeals from a decision of the board shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative fines under this chapter.
314-A:19 Unauthorized Practice; Actions by the Board. The board may, in accordance with applicable law, maintain an action in the name of the state against any person, partnership, association, or corporation for practicing body piercing, branding, or tattooing or operating an establishment in which these activities are conducted within the meaning of this chapter without first obtaining a license. In charging any defendant in a complaint in such action, it shall be sufficient to charge that such defendant did, upon a certain day and in a certain county, practice or operate an establishment without having a license to do so, without averring any further or more particular facts concerning the same.
314-A:20 Violations; Penalty. Any person who violates RSA 314-A:14, I shall be guilty of a misdemeanor. Any person who violates any other provision of this chapter, or rules adopted pursuant to this chapter, shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person, for a first offense. A person shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person, for any subsequent offense. Each day of violation after the first day of violation shall be considered a subsequent violation.
314-A:21 Injunctive Relief. The practice of body art by a person without a license issued under this chapter or whose license has been suspended or revoked, or has expired is declared to be a danger to the public health and welfare. In addition to any other civil, criminal, or disciplinary remedy, the attorney general, the board, the prosecuting attorney of any county or municipality where the person is practicing or purporting to practice, may maintain an action to enjoin that person from practicing body art until such person secures a valid license. An injunction without bond is available to the board for enforcement of this chapter.
314-A:22 Criminal Record Check Required.
I. Every person selected for employment by a body art practitioner licensed under this chapter shall submit to the employer a notarized criminal conviction record release authorization form, as provided by the division of state police, which authorizes the release of his or her criminal conviction record to the facility pursuant to RSA 106-B:14.
II. A body art practitioner shall submit the notarized criminal conviction record release authorization form to the division of state police after a person accepts a conditional offer of employment. The body art practitioner shall review the results of the criminal conviction record check before making a final offer of employment. An employee shall not begin work before the final offer of employment is made.
III.(a) Upon receipt of a notarized criminal conviction record release authorization form from a body art practitioner, the division of state police shall conduct a criminal conviction record check pursuant to RSA 106-B:14 and provide the results to the body art practitioner. The body art practitioner shall maintain the confidentiality of all criminal conviction records received pursuant to this section.
(b) The cost of criminal conviction record checks for such persons shall be borne by the body art practitioner; provided, that the body art practitioner may require the person seeking employment to pay the actual cost of the criminal conviction record check.
IV. The provisions of this section shall not apply to any person who is licensed by the board of nursing pursuant to RSA 326-B.
314-A:23 Minimum Standards. The provisions of this chapter represent minimum standards and shall not preclude any licensee from voluntarily exceeding these standards with more stringent provisions.
2 Effective Date. This act shall take effect January 1, 2007.
LBAO
06-2596
12/13/05
HB 1739-FN - FISCAL NOTE
AN ACT relative to body art practitioners.
FISCAL IMPACT:
The Department of Health and Human Services states this bill will increase state expenditures by $21,740 in FY 2007 and each year thereafter. State general fund revenue will increase by $27,175 in FY 2007 and each year thereafter. There will be no fiscal impact on county and local revenue or expenditures.
METHODOLOGY:
The Department assumes the Board of Licensed Body Art Practitioners will establish fees that will cover 125% of the direct costs of the Board as all existing regulatory boards administratively attached to the Department meet this requirement. The Department indicated license fee revenue will consist of initial licenses, renewals, and additional classifications, such as body piercing and branding. Body art practitioners are currently regulated by the Department. Licenses are valid for two years and the Department assumes approximately one half are issued in each year of the biennium. The Department computed the following operating budget for the new Board:
FY 2007 FY 2008 FY 2009 FY 2010
Revenue
Body Art Practitioner
Renewals 253 @ $150 $18,975 $18,975 $18,975 $18,975
Additional classifications
104 @ $100 5,200 5,200 5,200 5,200
Initial application – Single
Classification 25 @ $200 2,500 2,500 2,500 2,500
Initial application – Additional
classifications 10 @ 100 500 500 500 500
Total Revenue $27,175 $27,175 $27,175 $27,175
Operating Expenditures
Current Expense – Telephone,
postage copying and
LBAO
06-2596
12/13/05
general supplies 2,662 2,662 2,662 2,662
Organizational Dues 100 100 100 100
Transfer to Office of Information
Technology 500 500 500 500
Equipment 500 500 500 500
Part-time Salaries 14,378 14,378 14,378 14,378
Benefits 1,100 1,100 1,100 1,100
In-state Travel 2,500 2,500 2,500 2,500
Total $21,740 $21,740 $21,740 $21,740