SENATE BILL 275

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Jacob R. Candelaria

AN ACT

RELATING TO BODY ART; CREATING THE BOARD OF BODY ART PRACTITIONERS; CREATING THE BODY ART PRACTITIONERS FUND; PROVIDING POWERS AND DUTIES; REVISING POWERS AND DUTIES OF THE BOARD OF BARBERS AND COSMETOLOGISTS; REPEALING SECTIONS 61-17B-12 AND 61-17B-14 NMSA 1978 (BEING LAWS 2007, CHAPTER 181, SECTIONS 12 AND 14); MAKING AN APPROPRIATION.

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

     SECTION 1. Section 61-17A-6 NMSA 1978 (being Laws 1993, Chapter 171, Section 6, as amended) is amended to read:

     "61-17A-6. BOARD CREATED--MEMBERSHIP.--

          A. The "board of barbers and cosmetologists" is created. The board [shall be] is administratively attached to the regulation and licensing department. The board [shall consist] consists of nine members appointed by the governor. Members shall serve three-year terms; provided that at the time of initial appointment, the governor shall appoint members to abbreviated terms to allow staggering of subsequent appointments. Vacancies shall be filled in the manner of the original appointment.

          B. Of the nine members of the board, [five] seven shall be licensed pursuant to the Barbers and Cosmetologists Act and shall have at least five years' practical experience in their respective occupations. Of those [five, two] seven, three members shall be licensed barbers, [two] three members shall be licensed cosmetologists and one member shall represent school owners. [Two members shall be licensed body artists pursuant to the Body Art Safe Practices Act and shall have at least five years in practice in their occupation.] The remaining two members shall be public members. Neither the public members nor their spouses shall have ever been licensed pursuant to the provisions of the Barbers and Cosmetologists Act [the Body Art Safe Practices Act] or similar prior legislation or have a financial interest in a school or establishment.

          C. Members of the board shall be reimbursed pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

          D. The board shall elect from among its members a chair and such other officers as it deems necessary. The board shall meet at the call of the chair, not less than four times each year. A majority of members currently serving shall constitute a quorum for the conduct of business.

          E. No board member shall serve more than two full consecutive terms and any member who fails to attend, after proper notice, three meetings shall automatically be recommended for removal unless excused for reasons set forth by board [regulation] rule."

     SECTION 2. Section 61-17A-7 NMSA 1978 (being Laws 1993, Chapter 171, Section 7, as amended) is amended to read:

     "61-17A-7. BOARD POWERS AND DUTIES.--

          A. The board shall:

                (1) adopt and file, in accordance with the State Rules Act, rules necessary to carry out the provisions of the Barbers and Cosmetologists Act [and the Body Art Safe Practices Act];

                (2) establish fees;

                (3) provide for the examination, licensure and license renewal of applicants for licensure;

                (4) establish standards for and provide for the examination, licensure and license renewal of manicurists-pedicurists, estheticians and electrologists [and body artists and operators pursuant to the Body Art Safe Practices Act];

                (5) adopt a seal;

                (6) furnish copies of rules and sanitary requirements adopted by the board to each owner or manager of an establishment, enterprise or school;

                (7) keep a record of its proceedings and a register of applicants for licensure;

                (8) provide for the licensure of barbers, cosmetologists, manicurists-pedicurists, estheticians, [body artists and operators pursuant to the Body Art Safe Practices Act] electrologists, instructors, schools, enterprises and establishments;

                (9) establish administrative penalties and fines;

                (10) create and establish standards and fees for special licenses;

                (11) establish guidelines for schools to calculate tuition refunds for withdrawing students; and

                [(12) hire an administrator and other such staff as necessary to carry out the provisions of the Body Art Safe Practices Act; and

                (13)] (12) issue cease and desist orders to persons violating the provisions of the Barbers and Cosmetologists Act [or the Body Art Safe Practices Act] and rules promulgated in accordance with [those acts] that act.

          B. The board may establish continuing education requirements as requirements for licensure.

          C. A member of the board, its employees or agents may enter and inspect a school, enterprise or establishment at any time during regular business hours for the purpose of determining compliance with the Barbers and Cosmetologists Act [and the Body Art Safe Practices Act]."

     SECTION 3. Section 61-17B-1 NMSA 1978 (being Laws 2007, Chapter 181, Section 1) is amended to read:

     "61-17B-1. SHORT TITLE.--[Sections 1 through 14 of this act] Chapter 61, Article 17B NMSA 1978 may be cited as the "Body Art Safe Practices Act"."

     SECTION 4. Section 61-17B-3 NMSA 1978 (being Laws 2007, Chapter 181, Section 3) is amended to read:

     "61-17B-3. DEFINITIONS.--As used in the Body Art Safe Practices Act: 

          A. "board" means the board of [barbers and cosmetologists] body art practitioners;

          B. "body art" means tattooing, body piercing or scarification but does not include practices that are considered medical procedures by the New Mexico medical board;

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

          D. "body artist" means a person who administers body piercing, tattooing or scarification;

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

          F. "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;

          G. "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;

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

          I. "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;

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

          K. "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;

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

          M. "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 5. Section 61-17B-5 NMSA 1978 (being Laws 2007, Chapter 181, Section 5) is amended to read:

     "61-17B-5. LICENSE--APPLICATION--REVOCATION-- SUSPENSION.--

          A. A body artist shall obtain a body art license, and an operator shall obtain a body art operator license, the requirements for which shall be defined by the board and shall include the requirement that a body artist applicant demonstrate that the body artist has the training and experience necessary to perform body piercing, tattooing or scarification and [to establish and maintain] the requirement that a sanitary and sterile body art establishment be maintained.

          B. An operator or body artist shall possess 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 or a body artist shall not display a license unless it has been issued to [the] that operator or body artist by the board and has not been suspended or revoked.

          C. An operator or body artist shall apply to the board for the issuance or renewal of a license annually and shall pay license fees established by the board. [The operator or body artist 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. If the operator or body artist fails to renew the license for the next year, the license is void; provided that the voided license may be restored at any time during the year following the license's expiration upon the payment of the appropriate license renewal fee and a late charge not to exceed one hundred dollars ($100) as set forth by board rules. If the operator or body artist fails to restore a license within one year following the license's expiration, the operator or body artist may request restoration of the license pursuant to rules promulgated by the board.

           D. The board shall promulgate rules for the revocation or suspension of a license for an operator or body artist who fails to comply with a provision of the Body Art Safe Practices Act or rules promulgated pursuant to that act. A license shall not be suspended or revoked pursuant to the Body Art Safe Practices Act without providing the operator or the body artist with an opportunity for an administrative hearing unless conditions in the body art establishment warrant immediate suspension pursuant to Section [9 of the Body Art Safe Practices Act] 61-17B-9 NMSA 1978. 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. The board shall charge a fee not to exceed three hundred dollars ($300) for the application [or annual renewal of a] to issue a new or renewed license. The [operator or body artist] applicant shall provide proof of current immunization as required by the board and proof of the applicant's attendance at a blood-borne pathogen training program and other training as required [and approved] by the board before a license is issued or renewed.

          F. A current body art or [body art] operator license shall not be transferable from one person to another.

          [G. Operators and body artists engaged in the body art business before the effective date of the Body Art Safe Practices Act shall have one hundred eighty days from the issuance of rules promulgated by the board to comply with license requirements.

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

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

                (2) the board-issued license with identification photograph for the operator and any body artists;

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

                (4) the name and address of the [body art establishment owner] operator;

                (5) a complete description of all body art performed at the body art establishment;

                (6) a list of all instruments, body jewelry, sharps and inks used at the body art establishment, including names of manufacturers and serial or lot numbers or invoices or other documentation sufficient to identify and locate the manufacturer of those items; and

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

          [I.] H. 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 body art establishment's new location."

     SECTION 6. A new section of the Body Art Safe Practices Act is enacted to read:

     "[NEW MATERIAL] BOARD CREATED--MEMBERSHIP.--

          A. The "board of body art practitioners" is created. The board is administratively attached to the regulation and licensing department and consists of seven members appointed by the governor. Members shall serve three-year terms; provided that at the time of initial appointment, the governor shall appoint members to abbreviated terms to allow for the terms of subsequent appointments to be staggered. Vacancies shall be filled in the manner of the original appointment.

          B. Of the seven members of the board, five shall be licensed pursuant to the Body Art Safe Practices Act and shall have at least five years' practical experience in their occupations. Of those five, two members shall be operators and three members shall be body artists. The remaining two members shall be public members. The public members shall not have ever been licensed pursuant to the provisions of the Body Art Safe Practices Act or similar prior legislation or have a financial interest in a body art establishment.

          C. Members of the board shall be reimbursed pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

          D. The board shall elect from among its members a chair and such other officers as it deems necessary. The board shall meet at the call of the chair, not less than four times each year. A majority of members currently serving constitutes a quorum for the conduct of business.

          E. A board member shall not serve more than two full consecutive terms, and a member who fails to attend three meetings shall automatically be recommended for removal unless the member's absence is excused for reasons set forth by board rule."

     SECTION 7. A new section of the Body Art Safe Practices Act is enacted to read:

     "[NEW MATERIAL] BODY ART PRACTITIONERS FUND CREATED.--The "body art practitioners fund" is created in the state treasury. The fund consists of appropriations; license fees, charges and fines that are imposed by the board and that shall be deposited into the fund; and money otherwise accruing to the fund. Money in the fund is appropriated to the board for the purpose of carrying out the provisions of the Body Art Safe Practices Act. Money in the fund shall be disbursed on warrants signed by the secretary of finance and administration pursuant to vouchers signed by the chair of the board or the chair's authorized representative. Any balance remaining in the fund at the end of a fiscal year shall not revert to the general fund."

     SECTION 8. A new section of the Body Art Safe Practices Act is enacted to read:

     "[NEW MATERIAL] BOARD POWERS AND DUTIES.--

          A. The board shall:

                (1) in conjunction with the department of health, promulgate rules necessary to implement the provisions of the Body Art Safe Practices Act;

                (2) establish fees;

                (3) establish standards and provide for the issuance of new and renewal operator and body artist licenses to applicants;

                (4) adopt a seal;

                (5) furnish copies of rules and sanitation and sterilization requirements adopted by the board to each operator of a body art establishment;

                (6) keep a record of its proceedings, a register of applicants for licensure and a register of licensed operators and body artists;

                (7) hire an administrator and other necessary staff to carry out the provisions of the Body Art Safe Practices Act; and

                (8) issue cease and desist orders to persons who violate the provisions of the Body Art Safe Practices Act or rules promulgated pursuant to that act.

          B. The board may establish continuing education or other requirements for licensure.

          C. A member of the board, its employees or agents may enter and inspect a body art establishment at any time during regular business hours for the purpose of determining compliance with the Body Art Safe Practices Act."

     SECTION 9. A new section of the Body Art Safe Practices Act is enacted to read:

     "[NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The board of body art practitioners is terminated on July 1, 2021 pursuant to the Sunset Act. The board shall continue to operate according to the provisions of the Body Art Safe Practices Act until July 1, 2022. Effective July 1, 2022, the Body Art Safe Practices Act is repealed."

     SECTION 10. TEMPORARY PROVISION--TRANSFER OF APPROPRIATIONS, PROPERTY, EQUIPMENT, SUPPLIES, PERSONNEL, MONEY, CONTRACTS AND LEGAL AND ADMINISTRATIVE PROCEEDINGS--EXISTING LICENSES--STATUTORY REFERENCES.--

          A. On the effective date of this act:

                (1) all personnel and all money, appropriations, records, furniture, equipment, supplies and other property that belonged or were allocated to the board of barbers and cosmetologists for use in connection with the implementation of the Body Art Safe Practices Act are transferred to the board of body art practitioners;

                (2) all money that is in the barbers and cosmetologists fund that was paid into the fund pursuant to the Body Art Safe Practices Act or regulations promulgated pursuant to that act shall be transferred to the body art practitioners fund;

                (3) all existing contracts, agreements and other obligations that relate to the Body Art Safe Practices Act or the board of barbers and cosmetologists work pursuant to that act shall be binding on the board of body art practitioners;

                (4) all pending court cases, legal actions, appeals and other legal proceedings and all pending administrative proceedings that involve the board of barbers and cosmetologists that relate solely to the implementation of the Body Art Safe Practices Act shall be unaffected and shall continue in the name of the board of body art practitioners. Pending legal or administrative proceedings described in this paragraph that relate to the board of barbers and cosmetologists and to the implementation of the Body Art Safe Practices Act shall be unaffected, but the board of body art practitioners shall be joined as a party;

                (5) all rules, orders and other official acts of the board of barbers and cosmetologists pursuant to the Body Art Safe Practices Act shall continue in effect until amended, replaced or repealed by the board of body art practitioners; and

                (6) references in the law, rules and orders to the board of barbers and cosmetologists in connection with the Body Art Safe Practices Act shall be deemed references to the board of body art practitioners.

          B. Licenses that were issued before the effective date of this act by the board of barbers and cosmetologists pursuant to the Body Art Safe Practices Act shall remain in effect until the license expires or is renewed or reissued by the board of body art practitioners.

     SECTION 11. REPEAL.--Sections 61-17B-12 and 61-17B-14 NMSA 1978 (being Laws 2007, Chapter 181, Sections 12 and 14) are repealed.

     SECTION 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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