HOUSE BILL 478
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Rhonda S. King
AN ACT
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 the administration of body art.
Section 3. DEFINITIONS.--As used in the Body Art Safe Practices Act:
A. "board" means the board of barbers and cosmetologists;
B. "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;
C. "body art establishment" means a fixed or mobile place where body art is administered on the premises;
D. "body piercing" means to cut, stab or penetrate the skin to create a permanent hole or opening;
E. "contaminated waste" means liquid or semiliquid blood or other potentially infectious materials; contaminated items that would release blood or other potentially infectious materials in liquid or semiliquid state if compressed; items that are caked with dried blood or other potentially infectious materials and that are capable of releasing these materials during handling; and contaminated sharps and pathological and microbiological wastes containing blood and other potentially infectious materials;
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 the owner's 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, which is either permanent, semipermanent or temporary, into the epidermis using needles 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 4. LICENSE--APPLICATION--REVOCATION--SUSPENSION.--
A. An employee of a body art establishment shall obtain a body artist license, requirements for which shall be defined by the board.
B. An operator shall posses and post in a conspicuous place a valid and unsuspended license issued by the board in accordance with the Body Art Safe Practices Act and the rules promulgated pursuant to that act. An operator shall not display a license, unless it has been issued to the operator by the board and has not been suspended or revoked, and shall not transfer a license.
C. An operator shall apply to the board for the issuance of a license annually and pay fees established by the board. The body art establishment shall renew the license annually. The board shall set license fees and license renewal fees in amounts necessary to administer the provisions of the Body Art Safe Practices Act.
D. The board 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.
E. Within ninety days of the receipt of a license and annually thereafter, the operator, employees and any apprentices shall provide proof of attendance at a blood-borne pathogen training program approved by the board.
F. An individual not licensed may work as an apprentice employee provided that the apprentice employee completes an approved blood-borne pathogen training program, practices under the direct supervision of a licensed employee and meets requirements established by the board.
G. A current body art establishment license shall not be transferable from one person to another.
H. Body art establishments engaged in the body art business before the effective date of the Body Art Safe Practices Act shall have one hundred twenty days from the effective date of that act to comply with the license requirements.
I. The following information shall be kept on file on the premises of a body art establishment and available for inspection by the board:
(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) the board-issued license with identification photograph;
(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.
J. An operator shall notify the board in writing not less than thirty days before changing the location of a body art establishment. The notice shall include the street address of the new location.
Section 5. INSPECTION BY BOARD.--
A. The board shall annually inspect body art establishments. An operator, employee or agent shall allow a board 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, employee or agent shall be given an opportunity to accompany the board official on the inspection and to receive a report of the inspection within fourteen days after the inspection.
B. Refusal to allow an inspection is grounds for suspension or revocation of the license of the operator, provided that the board official tendered proper identification prior to the refusal.
Section 6. EXEMPTION.--A person who pierces only the outer perimeter of the ear, not including any cartilage, 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.
Section 7. STERILE PROCEDURES.--The board shall establish by rule requirements for:
A. the use and disposal of equipment and instruments; provided that:
(1) all sharps shall be sterilized prior to use;
(2) single use items shall not be used on more than one client for any reason; and
(3) all body art stencils shall be single use and disposable;
B. the prohibition of off-site sterilization; and
C. procedures to control disease borne by contact with customer or employee skin mucosa.
Section 8. IMMEDIATE SUSPENSION.--The board 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, employee or agent. 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 board inspection at the request of the operator.
Section 9. JUDICIAL REVIEW.--An applicant denied a license or an operator whose license is suspended or revoked by the board may appeal pursuant to Section 39-3-1.1 NMSA 1978.
Section 10. ENFORCEMENT.--
A. The board may seek relief in district court to enjoin the operation of a body art establishment.
B. The district court may impose a civil penalty not exceeding five hundred dollars ($500) for a violation of the Body Art Safe Practices Act. Each violation of the provisions of the Body Art Safe Practices Act constitutes a separate offense.
Section 11. BODY ART SAFE PRACTICES FUND.--The "body art safe practices fund" is created in the state treasury. All license fees and charges imposed by the board shall be deposited in the fund 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 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. RULES.--The board shall, in conjunction with the department of health, promulgate rules necessary to implement the provisions of the Body Art Safe Practices Act.
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