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. 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 the New Mexico board of medical examiners;

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. "contaminated waste" means a liquid or semiliquid blood or other potentially infectious materials; contaminated items that would release blood or other potentially infectious materials in a liquid or semiliquid state if compressed; items that are caked with dried blood or other potentially infectious materials and are capable of releasing these materials during handling; and contaminated sharps and pathological and microbiological wastes containing blood and other potentially infectious materials;

E. "department" means the department of health;

F. "disinfection" means the killing of microorganisms, but not necessarily their spores, on inanimate objects;

G. "employee" means a person employed in a body art establishment who administers body piercing, tattooing or scarification;

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

I. "handsink" means a lavatory equipped with hot and cold running water under pressure, used solely for washing hands, arms or other portions of the body;

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

K. "invasive" means entry into the body either by incision or insertion of an instrument into or through the skin or mucosa or by other means intended to compromise the skin or mucosa;

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

M. "procedure surface" means any surface that contacts the client's unclothed body during a body art procedure or any associated work area that may require sanitizing;

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

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

P. "sharps container" means a puncture-resistant, leak-proof container that can be closed for handling, storage, transportation and disposal and is labeled with the international "biohazard" symbol;

Q. "single use" means products or items that are intended for one-time, one-person use and are disposed of after use on each client, 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;

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

S. "tattooing" means the practice of depositing pigment into the epidermis using needles, which is either permanent, semipermanent or temporary, by someone other than a state-licensed physician or a person under the supervision of a state-licensed physician and includes permanent cosmetics, dermography, micropigmentation, permanent color technology and micropigment implantation.

Section 3. LICENSE--APPLICATION--REVOCATION--SUSPENSION.--

A. A person shall not operate a body art establishment unless he possesses a valid and unsuspended license issued by the department in accordance with the Body Art Safe Practices Act and the rules promulgated pursuant to that act. The license shall be posted in a conspicuous place within the body art establishment. A person shall not display a license unless it has been issued to him by the department and has not been suspended or revoked.

B. A person desiring to operate a body art establishment shall apply to the department for the issuance of a license. Applications shall be made in the form and in accordance with procedures established by the rules of the department. The department shall issue a license to an applicant that complies with the rules of the department covering the issuance of licenses and who demonstrates to the satisfaction of the department his ability to comply with all the provisions of the Body Art Safe Practices Act. The body art establishment shall renew the license annually. The department shall set license fees and license renewal fees in amounts necessary to administer the provisions of the Body Art Safe Practices Act.

C. The department shall promulgate rules for the revocation or suspension of licenses for those body art establishments that fail to comply with a provision of the Body Art Safe Practices Act. A license shall not be suspended or revoked pursuant to the Body Art Safe Practices Act without providing the operator of a body art establishment an opportunity for an administrative hearing. The hearing officer shall not be a person previously involved in the suspension or revocation action. 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.

D. Within ninety days of the receipt of a license, the body art operator and his employees shall provide proof of attendance at a blood-borne pathogen training program approved by the department. Subsequently, the body art operator and his employees shall attend a blood-borne pathogen training program at least once every three years.

E. A current body art establishment license shall not be transferable from one person to another.

F. Body art establishments engaged in the body art business before the effective date of the Body Art Safe Practices Act shall have ninety days from the effective date of that act to comply with the license requirements.

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

(1) the full names of all employees in the 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 body art establishment owner;

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

(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; and

(8) a copy of the Body Art Safe Practices Act.

H. A holder of a license to operate a body art establishment who intends to change the location of the establishment shall notify the department in writing of that intent not less than thirty days before the change is to occur. The notice shall include the street address of the new location.

Section 4. INSPECTION BY DEPARTMENT.--

A. The department shall annually inspect body art establishments to determine compliance or lack of compliance with the Body Art Safe Practices Act. The procedures for inspection shall be in accordance with the rules of the department. Upon request by the department to a body art establishment operator or to his employee or agent in charge of the body art establishment premises, he shall allow the department official, upon proper identification, to enter the premises, inspect all parts of the premises and inspect and copy records of the body art establishment. The operator, his employee or agent in charge of the body art establishment premises shall be given an opportunity to accompany the department official on his inspection and to receive a report of the inspection within fourteen days after the inspection. Refusal to allow an inspection is grounds for suspension or revocation of the license of the operator, provided that the department official tendered proper identification prior to the refusal.

B. During an inspection the department 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 any samples of equipment or supplies after the investigation is complete.

C. 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, is exempt from the requirements of the Body Art Safe Practices Act. A person who uses those ear piercing systems shall conform to the manufacturer's directions on use and applicable United States food and drug administration requirements. All ear piercers shall 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 5. REQUIREMENTS FOR SINGLE USE ITEMS.--

A. All sharps shall be sterilized prior to use and stored in paper peel-packs.

B. Single use items shall not be used on more than one client for any reason. After use, all single use needles, razors and other sharps shall be immediately disposed in approved sharps containers. Piercing needles are strictly single use.

C. All body art stencils shall be single use and disposable. Petroleum jellies, soaps and other products used in the application of stencils shall be dispensed and applied on the area to be tattooed with sterile gauze or in a manner that prevents contamination of the original container and its contents. The gauze shall be used only once and then discarded.

Section 6. SANITATION AND STERILIZATION.--

A. Nondisposable instruments used to administer body art shall be cleaned thoroughly after each use by scrubbing with an antimicrobial soap solution and hot water or an appropriate disinfectant to remove blood and tissue residue and placed in an ultrasonic unit, which shall remain on the premises of the body art establishment and which shall be operated in accordance with the manufacturer's instructions.

B. After cleaning, all non-disposable instruments used to administer body art shall be packed individually in paper peel-packs and sterilized. All paper peel-packs shall contain either a sterilizer indicator or internal-temperature indicator. Properly packaged, sterilized and stored equipment shall be stored no more than one year. Paper peel-packs shall be dated with an expiration date not to exceed one year. Sterile equipment may not be used after the expiration date without first repackaging and resterilization.

C. All nondisposable instruments used for body art shall be sterilized in an autoclave at the body art establishment. Off-site sterilization is prohibited. The sterilizer shall be used, cleaned and maintained according to the manufacturer's instructions. A copy of the manufacturer's recommended procedures for the operation of the sterilization unit shall be available for inspection by the department.

D. A holder of a license to operate a body art establishment shall demonstrate that the sterilizer used is capable of attaining sterilization by monthly spore destruction tests. Those tests shall be verified through an independent laboratory. A license shall not be issued or renewed until documentation of the sterilizer's ability to destroy spores is received by the department. Those test records shall be retained by the operator for a period of three years and provided to the department upon request.

E. After sterilization, the instrument used for body art shall be stored in a dry, clean cabinet or other tightly covered container reserved for the storage of instruments.

F. Instruments used for body art shall remain stored in sterile packages until just prior to performing a body art procedure. When assembling instruments used for performing body art, the employee shall wear disposable medical gloves and use techniques to ensure that the instruments and gloves are not contaminated.

G. Inks, dyes, pigments and sharps shall be specifically manufactured for performing body art procedures and shall not be adulterated. Immediately before applying a tattoo, the quantity of the dye to be used for the tattoo shall be transferred from the bottle and placed into sterile, single use paper cups or plastic caps. Upon completion of the tattoo, those single use cups or caps and their contents shall be discarded.

Section 7. IMMEDIATE SUSPENSION.--The department may suspend a license immediately without prior notice to the holder of the license if it determines, after inspection, that conditions within a body art establishment present a substantial danger of illness, serious physical harm or death to customers who might patronize a body art establishment. A suspension action taken pursuant to this section is effective when communicated to the operator or an employee or agent of the operator who is in charge of the premises involved. If there is no designated employee or agent in charge of the premises, communication to an employee physically present on the premises is sufficient communication to make the suspension effective. Suspension action taken pursuant to this section shall not continue beyond the time that the conditions causing the suspension cease to exist, as determined by a department inspection at the request of the operator.

Section 8. JUDICIAL REVIEW.--A person to whom the department denies a license or whose license is suspended or revoked by the agency may appeal pursuant to Section 39-3-1.1 NMSA 1978.

Section 9. ENFORCEMENT.--

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

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

Section 10. DISEASE CONTROL.--A 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 body art equipment, supplies or working surfaces with pathogenic organisms.

Section 11. RECORDS RETENTION.--The body art establishment shall keep a record of all persons who have had body art procedures performed. The record shall include the name, date of birth and address of the client; the date of the procedure; the name of the employee who performed the procedure; the type of procedure performed and its location on the client's body; the signature of the client; and if the client is a minor, written proof of parental or guardian presence and consent.

Section 12. BODY ART SAFE PRACTICES FUND.--The "body art safe practices fund" is created in the state treasury. All license fees, charges and fines imposed by the department shall be deposited in the fund. Money in the fund is appropriated to the department for the purpose of carrying out the provisions of the Body Art Safe Practices Act. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

Section 13. PARENTAL CONSENT.--A body art establishment shall require that all of its customers present proof that they are eighteen years of age or older prior to administering body art. If a customer is under eighteen years of age, the body art establishment shall require a notarized informed consent form from and the presence of his parent or legal guardian before administering body art. The parent or legal guardian shall personally deliver the notarized informed consent and remain present throughout the administration of the body art. Delivery by the person who is under eighteen years of age or younger is not sufficient to permit the administration of body art. Photographic identification of the parent or legal guardian is required.

Section 14. 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 15. RULES.--The department shall promulgate rules necessary to implement the provisions of the Body Art Safe Practices Act.