Revision: March 27, 2019, 8:48 a.m.
HB 120-FN - AS INTRODUCED
2019 SESSION
19-0033
10/08
HOUSE BILL 120-FN
AN ACT relative to the regulation of body art establishments.
SPONSORS: Rep. P. Schmidt, Straf. 19
COMMITTEE: Executive Departments and Administration
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ANALYSIS
This bill requires the licensure and inspection of establishments for tattooing, body piercing, or branding and clarifies the regulation of body art practitioners by the office of professional licensure and certification.
This bill is a request of the office of professional licensure and certification.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
19-0033
10/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
AN ACT relative to the regulation of body art establishments.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraph; Body Art; Definition; Establishment. Amend RSA 314-A:1 by inserting after paragraph II the following new paragraph:
II-a. “Establishment” means the physical place licensed by the office of professional licensure and certification where tattooing, body piercing, or branding is practiced. A booth attached to or within an establishment that is operated independently of the establishment shall be subject to separate licensure in the same manner as an establishment. The term "establishment" shall not include temporary structures where a practitioner practices for a limited time.
2 License Fee; Renewal. Amend RSA 314-A:2, II to read as follows:
II. The fee for an initial license and a renewal license for practitioners and apprentices shall be $110. The license shall be renewed biennially on the last day of the licensee's birth month in odd-numbered years next succeeding the date of issuance upon payment of the $110 renewal fee. The initial license fee and renewal fee for establishments shall be as determined in rules adopted by the executive director. Establishments that are licensed as an establishment, shop, or facility under one of the occupations or professions regulated by the office of professional licensure and certification in RSA 310-A:1-a shall pay a reduced fee for a body art establishment license.
3 Body Art; Rulemaking; Establishments. RSA 314-A:6, IV is repealed and reenacted to read as follows:
IV. Regulation of establishments, including any special rules for independently operated booths, as follows:
(a) Procedures for issuing, renewing, and suspending, revoking, or denying licenses for establishments.
(b) Holding hearings, conducting investigations, public or confidential, and issuing orders relating to such hearings and investigations. The contested case provisions of RSA 541-A:31-36 shall apply when a person is aggrieved by a decision of the executive director under this chapter. Appeals shall be made in accordance with RSA 541.
(c) Conditions, requirements, and standards for operation under an establishment license including health and safety standards.
(d) Content of application forms and procedures to open, close, relocate, change ownership, or renew an establishment.
(e) Requiring the display of establishment licensure and practitioner identification.
(f) Procedures for disciplinary action including, cease and desist orders, suspension, limitation, or revocation of establishment licensure.
(g) Inspection of establishments licensed for body piercing, branding, and tattooing.
(h) Procedures to grant or deny an establishment exemption.
4 New Paragraphs; Prohibited Acts; Establishments. Amend RSA 314-A:7 by inserting after paragraph III the following new paragraphs:
IV. Operate an establishment without an establishment license.
V. Operate an establishment unless such establishment is under the direct supervision and management of a practitioner licensed under this chapter.
5 Disciplinary Action. RSA 314-A:9 is repealed and reenacted to read as follows:
314-A:9 Disciplinary Action.
I. The executive director, in consultation with the advisory board, may undertake disciplinary proceedings:
(a) Upon his or her initiative; or
(b) Upon written complaint of any person which charges that a person or establishment licensed by the board has committed misconduct and the grounds therefor.
II. Misconduct sufficient to support disciplinary proceedings under this section shall include:
(a) The practice of fraud or deceit in procuring or attempting to procure a license to practice under this chapter;
(b) Any unprofessional conduct, or dishonorable conduct unworthy of, and affecting the practice of the profession;
(c) Unfitness or incompetence by reason of negligent habits; negligent or willful acts performed in a manner inconsistent with the health and safety of persons relying on the expertise of the licensee;
(d) Willful or repeated violation of the provisions of this chapter;
(e) Suspension or revocation of a license, similar to one issued in this chapter in another jurisdiction and not reinstated;
III. The executive director, in consultation with the advisory board, may take disciplinary action in any one or more of the following ways:
(a) By reprimand;
(b) By suspension, limitation, or restriction of a license;
(c) By revocation of a license;
(d) By requiring the person to participate in a program of continuing education in the area or areas the person has been found deficient;
(e) By imposing an administrative fine in accordance with RSA 314-A:10.
6 New Paragraph; Violations; Establishment. Amend RSA 314-A:12 by inserting after paragraph II the following new paragraph:
III. Any person who operates an establishment in this state without an establishment license shall be guilty of a class A misdemeanor if a natural person or guilty of a felony if any other person.
7 New Sections; Establishment Licensure; Inspections. Amend RSA 314-A by inserting after section 14 the following new sections:
314-A:15 Establishment Licensure.
I. It shall be a misdemeanor for any person, as owner, manager, or agent to open, establish, conduct or maintain an establishment without first having obtained an establishment license from the board. Any New Hampshire licensed body art practitioner may obtain an establishment license upon application and fee provided that the establishment meets all requirements in the rules adopted by the executive director. Establishment licenses granted pursuant to this section shall be conspicuously posted within the establishment.
II. In addition to licenses issued under paragraph I, the executive director may issue an establishment license to an owner who does not hold a personal body art license provided that the owner employs a licensed body art practitioner as manager. This section shall not authorize such owner to personally engage in tattooing, body piercing, or branding.
III. The executive director shall grant or deny an establishment an exemption from licensure in accordance with the rules adopted pursuant to this chapter.
314-A:16 Inspectors.
I. The executive director shall employ inspectors and authorize them to enter and inspect any establishment licensed under this chapter for the purpose of ascertaining whether or not the provisions of this chapter and the rules adopted thereunder are being observed. Each inspector shall file a report with the executive director of his or her inspection findings and results. Salaries and necessary expenses shall be charged against the office of professional licensure and certification fund established in RSA 310-A:1-e.
II. The executive director shall adopt rules relative to the qualifications of an inspector under this section.
8 Effective Date. This act shall take effect July 1, 2019.
19-0033
11/13/18
HB 120-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to the regulation of body art establishments.
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2020 | FY 2021 | FY 2022 | FY 2023 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
Expenditures | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - Office of Professional Licensure and Certification Fund (RSA 310-A:1-e, I(b)) | |||
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COUNTY: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
METHODOLOGY:
This bill requires licensure and inspection of establishments for tattooing, body piercing, or branding and clarifies the licensure renewal for practitioners and apprentices. The Office of Professional Licensure and Certification (OPLC) reports there are currently 440 licensed body artists. Assuming half of the 440 licensees may require an establishment license and these establishments are not licensed pursuant to any other occupation or profession regulated by the OPLC, or that another fee amount is applicable via rules adopted by the OPLC Executive Director, then 220 licensees would be required to pay a licensing fee of $110 every odd-numbered calendar year. Potential new revenue from existing business is estimated at $24,200 in every odd-numbered calendar year (220 x $110). Half of this odd-numbered year revenue, or $12,100, accrues in each fiscal year. Fines may also be assessed during inspections for violations of RSA 314-A, which may increase general fund revenue by an indeterminable amount. The OPLC indicates the authority to routinely inspect and investigate these businesses would require a new inspector position and this individual would also be responsible for all five OPLC advisory boards. The inspector position (investigative paralegal, labor grade 22, step 1) would be hired to start on July 1, 2019 with total annual position costs of $103,000 in FY 2020 (includes one time expenses of $1,500 for a computer and $25,000 for a vehicle), $80,000 in FY 2021, $84,000 in FY 2022 and $87,000 in FY 2023. All projected revenues and expenses accrue to the OPLC Fund pursuant to RSA 310-A:1-e, I(b)
This bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the entities impacted have provided the potential costs associated with these penalties below.
Judicial Branch | FY 2020 | FY 2021 |
Class B Misdemeanor | $53 | $54 |
Class A Misdemeanor | $76 | $77 |
Routine Criminal Felony Case | $481 | $486 |
Appeals | Varies | Varies |
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It should be noted that average case cost estimates for FY 2020 and FY 2021 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types. An unspecified misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor. | ||
Department of Corrections |
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FY 2018 Average Cost of Incarcerating an Individual | $40,615 | $40,615 |
FY 2018 Annual Marginal Cost of a General Population Inmate | $4,620 | $4,620 |
FY 2018 Average Cost of Supervising an Individual on Parole/Probation | $571 | $571 |
NH Association of Counties |
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County Prosecution Costs | Indeterminable | Indeterminable |
Estimated Average Daily Cost of Incarcerating an Individual | $105 to $120 | $105 to $120 |
Many offenses are prosecuted by local and county prosecutors. When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department would likely absorb the cost within its existing budget. If the Department needs to prosecute significantly more cases or handle more appeals, then costs may increase by an indeterminable amount.
Violations of this statute by a person would take place within the context of that person's role as an owner, manager or agent to open, establish, conduct or maintain an establishment and it would therefore by unlikely that he or she would meet the eligibility standards for the appointment of counsel established by RSA 604-A:2-c. Based on this assumption, there will be no fiscal impact on the operations of the Judicial Council as a result of the bill.
AGENCIES CONTACTED:
Office of Professional Licensure and Certification