46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO HEALTH; ENACTING THE BODY ART SAFE PRACTICES ACT; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Body Art Safe Practices Act".

Section 2. PURPOSE.--The purpose of the Body Art Safe Practices Act is to provide a safe and healthy environment for body art.

Section 3. DEFINITIONS.--As used in the Body Art Safe Practices Act:

A. "body art" means tattooing, body piercing or scarification but does not include practices that are considered medical procedures by a state medical board;

B. "body art establishment" means a fixed or mobile place where body art is administered on the premises;

C. "body piercing" means to cut, stab or penetrate the skin to create a permanent hole or opening;

D. "department" means the department of health;

E. "employee" means a person employed in a body art establishment who administers body art;

F. "equipment" means all machinery, including fixtures, containers, vessels, tools, devices, implements, furniture, display and storage areas, sinks and all other apparatuses and appurtenances used in connection with the operation of a body art establishment;

G. "instruments used for body art" means hand pieces, needles, needle bars and other instruments that may come into contact with a person's body during the administration of body art;

H. "operator" means the owner or his agent in charge of a body art establishment;

I. "procedure surface" means any surface that comes in contact with the client's unclothed body during a body art procedure or an associated work area that may require sanitizing;

J. "sanitize" or "sanitization" means a procedure that reduces the level of microbial contamination so that the item or surface is considered safe;

K. "scarification" means cutting into the skin with a sharp instrument to produce a permanent mark or design on the skin;

L. "sharps" means a sterilized object that is used for the purpose of penetrating the skin or mucosa, including needles, scalpel blades and razor blades;

M. "single-use" means products or items that are intended for one-time, one-person use and are disposed of after use, including cotton swabs or balls, tissues or paper products, paper or plastic cups, gauze and sanitary coverings, razors, piercing needles, scalpel blades, stencils, ink cups and protective gloves;

N. "sterilization" means destruction of all forms of microbiotic life, including spores; and

O. "tattooing" means the practice of depositing permanent, semipermanent or temporary pigment into the epidermis using needles and includes permanent cosmetics, dermography, micropigmentation, permanent color technology and micropigment implantation.

Section 4. RULES.--The department shall promulgate rules to implement the provisions of the Body Art Safe Practices Act.

Section 5. EXEMPTION.--A person who pierces only the outer perimeter and lobe of the ear using a pre-sterilized encapsulated single-use stud ear piercing system, implementing appropriate procedures, shall be exempt from the requirements of the Body Art Safe Practices Act. A person who uses such ear piercing systems must conform to the manufacturer's directions and applicable United States food and drug administration requirements. All ear piercers must employ handwashing or use of an antibacterial gel and wear disposable medical gloves, which are to be discarded after use for each customer. The department may investigate consumer complaints relating to alleged misuse or improper procedures involving ear piercing systems.

Section 6. LICENSE--APPLICATION--REVOCATION--SUSPENSION.--

A. A person shall not operate a body art establishment unless he possesses a valid license for that body art establishment issued by the department in accordance with the Body Art Safe Practices Act and rules promulgated pursuant to that act. An operator is required to have a license for each body art establishment he owns or operates. The license shall be posted in a conspicuous place in the body art establishment. An operator shall not display a license unless it has been issued for that body art establishment and it has not been suspended or revoked. Licenses may be renewed annually.

B. A person desiring to operate a body art establishment shall apply to the department for a license. Applications shall be made in the form prescribed by the department. The body art establishment for which the operator seeks licensure shall meet department health and safety requirements and may be inspected by the department prior to issuance of a license.

C. The department shall charge a fee not to exceed one hundred fifty dollars ($150) for the application or renewal of a license.

D. The department shall promulgate rules for the denial, revocation or suspension of licenses in accordance with the Uniform Licensing Act. A license may be denied if the operator has had a similar license suspended or revoked in this or another jurisdiction within the last five years. An inspection made more than twenty-four months prior to the most recent inspection shall not be used as a basis for suspension or revocation. A person aggrieved by a decision of the department pursuant to this section may appeal to the district court as provided in Section 39-3-1.1 NMSA 1978.

E. A license to operate a body art establishment shall not be transferable.

F. Persons engaged in the body art business before the effective date of the Body Art Safe Practices Act shall have sixty days to comply with the licensing requirements.

G. The following information shall be kept on file on the premises of the body art establishment and available for inspection by the department:

(1) the full names of all employees in the body art establishment and their exact duties;

(2) the following information pertaining to all employees:

(a) date of birth;

(b) gender;

(c) home address; and

(d) phone number;

(3) identification photographs of all employees;

(4) the body art establishment name and hours of operation;

(5) the name and address of the operator;

(6) a complete description of all body art performed; and

(7) a list of all instruments, body jewelry, sharps and inks used, including names of manufacturers and serial or lot numbers or invoices or their documentation sufficient to identify and locate the manufacturer.

Section 7. SANITATION AND STERILIZATION.--The department shall adopt rules pertaining to sanitation; sterilization of equipment and nondisposable instruments; the use of sharps, stencils and other single-use items; and other public health concerns in body art establishments.

Section 8. DISEASE CONTROL.--Any skin or mucosa surface to receive a body art procedure shall be free of rash, infection or any other visible active pathological condition. The skin of the employee shall be free of rash, infection or any other visible pathological condition. An employee affected with boils, infected wounds, open sores, abrasions, exudative lesions, acute respiratory infection, nausea, vomiting or diarrhea shall not work in any area of a body art establishment in any capacity in which there is a likelihood of contaminating equipment, supplies or procedure surfaces with pathogenic organisms.

Section 9. INSPECTION BY DEPARTMENT.--

A. The department shall annually inspect body art establishments to determine compliance with the Body Art Safe Practices Act. A department inspector may enter and inspect the premises and records of a body art establishment at any reasonable time. The operator or his employee shall be given an opportunity to accompany the department inspector on his inspection and to receive the report of the inspection within fourteen days after the inspection. Refusal to allow an inspection is grounds for revocation of the license of the operator if the department inspector tendered proper identification prior to the refusal.

B. During an inspection, the department inspector may take samples of equipment and supplies on the premises for the purpose of determining compliance with the provisions of the Body Art Safe Practices Act. The department shall return samples of equipment or supplies after the investigation is completed.

Section 10. IMMEDIATE SUSPENSION.--The department may suspend a license immediately without prior notice to the license holder if it determines, after inspection, that conditions in the body art establishment present a substantial danger of illness, serious physical harm or death to customers who might patronize the body art establishment. A suspension action taken pursuant to this section is effective when communicated to the operator or an employee on the premises. If there is no designated person in charge of the premises, communication to an employee physically present on the premises is sufficient communication to make the suspension effective. No suspension action taken pursuant to this section shall continue beyond the time that the conditions causing the suspension cease to exist, as determined by an inspection by the department at the request of the operator.

Section 11. BODY ART SAFE PRACTICES FUND.--The "body art safe practices fund" is created in the state treasury. License fees imposed by the department shall be deposited in the fund. Any balance remaining in the fund at the end of a fiscal year shall not revert to the general fund. The fund shall be administered by the department and money in the fund is appropriated to the department to carry out the provisions of the Body Art Safe Practices Act.

Section 12. MUNICIPALITIES.--The Body Art Safe Practices Act provides minimum standards for safe body art practices. A municipality may by ordinance provide more stringent standards.

Section 13. ENFORCEMENT.--

A. The department may seek relief in district court to enjoin the operation of a body art establishment not complying with the provisions of the Body Art Safe Practices Act.

B. The district court may impose a civil penalty of not more than five hundred dollars ($500) on a person who violates a provision of the Body Art Safe Practices Act. Each violation constitutes a separate offense.