BILL REQ. #:  S-1418.4 

READ FIRST TIME 02/24/09.   

     AN ACT Relating to regulating body art, body piercing, and tattooing practitioners, shops, and businesses; amending RCW 70.54.340, 5.40.050, and 43.24.150; adding a new chapter to Title 18 RCW; creating a new section; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds and declares that the practices of body piercing, tattooing, and other forms of body art involve an invasive procedure with the use of needles, single-use disposable sharps, reusable sharps, instruments, and jewelry. These practices may be dangerous when improper sterilization techniques are used, presenting a risk of infecting the client with bloodborne pathogens including, but not limited to, HIV, hepatitis B, and hepatitis C. It is in the interests of the public health, safety, and welfare to establish requirements in the commercial practice of these activities in this state.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter and RCW 5.40.050 and 70.54.340 unless the context clearly requires otherwise.
     (1) "Body art" means the practice of physical cosmetic body adornment including the use of branding and scarification. "Body art" also includes the intentional production of scars upon the body. "Body art" does not include any health-related procedures performed by licensed health care practitioners under their scope of practice.
     (2) "Body piercing" means the process of penetrating the skin or mucous membrane to insert an object, including jewelry, for cosmetic purposes. "Body piercing" also includes any scar tissue resulting from or relating to the piercing. "Body piercing" does not include the use of stud and clasp piercing systems to pierce the earlobe in accordance with the manufacturer's directions and applicable United States food and drug administration requirements. "Body piercing" does not include any health-related procedures performed by licensed health care practitioners under their scope of practice, nor does anything in this act authorize a person registered to engage in the business of body piercing to implant or embed foreign objects into the human body or otherwise engage in the practice of medicine.
     (3) "Director" means the director of the department of licensing.
     (4) "Individual license" means a body art, body piercing, or tattoo practitioner license issued under this chapter.
     (5) "Location license" means a license issued under this chapter for a shop or business.
     (6) "Shop or business" means a body art, body piercing, or tattooing shop or business.
     (7) "Tattoo artist" means a person who practices the business of tattooing for a fee.
     (8) "Tattooing" means the introduction of an indelible mark, figure, or decorative design by inserting nontoxic dyes or pigments into or under the subcutaneous portion of the skin upon the body of a live human being for cosmetic or figurative purposes.

NEW SECTION.  Sec. 3   In addition to any other duties imposed by law, including RCW 18.235.030 and 18.235.040, the director has the following powers and duties:
     (1) To set all license, examination, and renewal fees in accordance with RCW 43.24.086;
     (2) To adopt rules necessary to implement this chapter;
     (3) To prepare and administer or approve the preparation and administration of licensing;
     (4) To establish minimum safety and sanitation standards for practitioners of body art, body piercing, or tattooing as determined by the department of health;
     (5) To maintain the official department record of applicants and licensees;
     (6) To set license expiration dates and renewal periods for all licenses consistent with this chapter;
     (7) To ensure that all informational notices produced and mailed by the department regarding statutory and regulatory changes affecting any particular class of licensees are mailed to each licensee in good standing in the affected class whose mailing address on record with the department has not resulted in mail being returned as undeliverable for any reason; and
     (8) To make information available to the department of revenue to assist in collecting taxes from persons and businesses required to be licensed under this chapter.

NEW SECTION.  Sec. 4   (1) It is unlawful for any person to engage in a practice listed in subsection (2) of this section unless the person has a license in good standing as required by this chapter. A license issued under this chapter is considered to be "in good standing" except when:
     (a) The license has expired or has been canceled and has not been renewed in accordance with section 6 of this act;
     (b) The license has been denied, revoked, or suspended under section 12 or 14 of this act, and has not been reinstated; or
     (c) The license is held by a person who has not fully complied with an order of the director issued under section 12 of this act requiring the licensee to pay restitution or a fine, or to acquire additional training.
     (2) The director may take action under RCW 18.235.150 and 18.235.160 against any person who does any of the following without first obtaining, and maintaining in good standing, the license required by this chapter:
     (a) Engages in the practice of body art, body piercing, or tattooing; or
     (b) Operates a shop or business.

NEW SECTION.  Sec. 5   (1) Upon completion of an application approved by the department and payment of the proper fee, the director shall issue the appropriate location license to any person who completes an application approved by the department, provides certification of insurance, and provides payment of the proper fee.
     (2) The director may consult with the state board of health and the department of labor and industries in establishing additional requirements.

NEW SECTION.  Sec. 6   (1) The director shall issue the appropriate license to any applicant who meets the requirements as outlined in this chapter. The director has the authority to set appropriate licensing fees for body art, body piercing, and tattooing shops and businesses and body art, body piercing, and tattooing individual practitioners. Licensing fees for individual practitioners must be set in an amount less than licensing fees for shops and businesses.
     (2) Failure to renew a license by its expiration date subjects the holder to a penalty fee and payment of each year's renewal fee, at the current rate.
     (3) A person whose license has not been renewed within one year after its expiration date must have his or her license canceled and must be required to submit an application, pay the license fee, meet current licensing requirements, and pass any applicable examination or examinations, in addition to the other requirements of this chapter, before the license may be reinstated.
     (4) Nothing in this section authorizes a person whose license has expired to engage in a practice prohibited under section 4 of this act until the license is renewed or reinstated.
     (5) Upon request and payment of an additional fee to be established by rule by the director, the director shall issue a duplicate license to an applicant.

NEW SECTION.  Sec. 7   (1) Subject to subsection (2) of this section, licenses issued under this chapter expire as follows:
     (a) A body art, body piercing, or tattooing shop or business location license expires one year from issuance or when the insurance required by section 8(1)(g) of this act expires, whichever occurs first; and
     (b) Body art, body piercing, or tattooing practitioner individual licenses expire one year from issuance.
     (2) The director may provide for expiration dates other than those set forth in subsection (1) of this section for the purpose of establishing staggered renewal periods.

NEW SECTION.  Sec. 8   (1) A body art, body piercing, or tattooing shop or business shall meet the following minimum requirements:
     (a) Maintain an outside entrance separate from any rooms used for sleeping or residential purposes;
     (b) Provide and maintain for the use of its customers adequate toilet facilities located within or adjacent to the shop or business;
     (c) Any room used wholly or in part as a shop or business may not be used for residential purposes, except that toilet facilities may be used for both residential and business purposes;
     (d) Meet the zoning requirements of the county, city, or town, as appropriate;
     (e) Provide for safe storage and labeling of equipment and substances used in the practices under this chapter;
     (f) Meet all applicable local and state fire codes; and
     (g) Certify that the shop or business is covered by a public liability insurance policy in an amount not less than one hundred thousand dollars for combined bodily injury and property damage liability.
     (2) The director may by rule determine other requirements that are necessary for safety and sanitation of shops or businesses. The director may consult with the state board of health and the department of labor and industries in establishing minimum shop and business safety requirements.
     (3) Upon receipt of a written complaint that a shop or business has violated any provisions of this chapter, chapter 18.235 RCW, or the rules adopted under either chapter, or at least once every two years for an existing shop or business, the director or the director's designee shall inspect each shop or business. If the director determines that any shop or business is not in compliance with this chapter, the director shall send written notice to the shop or business. A shop or business which fails to correct the conditions to the satisfaction of the director within a reasonable time is, upon due notice, subject to the penalties imposed by the director under RCW 18.235.110. The director may enter any shop or business during business hours for the purpose of inspection. The director may contract with health authorities of local governments to conduct the inspections under this subsection.
     (4) A shop or business shall obtain a certificate of registration from the department of revenue.
     (5) Shop or business location licenses issued by the department must be posted in the shop or business's reception area.
     (6) Body art, body piercing, and tattooing practitioner individual licenses issued by the department must be posted at the licensed person's work station.

NEW SECTION.  Sec. 9   The director shall prepare and provide to all licensed shops or businesses a notice to consumers. At a minimum, the notice must state that body art, body piercing, and tattooing shops or businesses are required to be licensed, that shops or businesses are required to maintain minimum safety and sanitation standards, that customer complaints regarding shops or businesses may be reported to the department, and a telephone number and address where complaints may be made.

NEW SECTION.  Sec. 10   It is a violation of this chapter for any person to engage in the commercial practice of body art, body piercing, or tattooing except in a licensed shop or business with the appropriate individual body art, body piercing, or tattooing license.

NEW SECTION.  Sec. 11   In addition to the unprofessional conduct described in RCW 18.235.130, the director may take disciplinary action against any applicant or licensee under this chapter if the licensee or applicant:
     (1) Has been found to have violated any provisions of chapter 19.86 RCW;
     (2) Has engaged in a practice prohibited under section 4 of this act without first obtaining, and maintaining in good standing, the license required by this chapter;
     (3) Has failed to display licenses required in this chapter; or
     (4) Has violated any provision of this chapter or any rule adopted under it.

NEW SECTION.  Sec. 12   If, following a hearing, the director finds that any person or an applicant or licensee has violated any provision of this chapter or any rule adopted under it, the director may impose one or more of the following penalties:
     (1) Denial of a license or renewal;
     (2) Revocation or suspension of a license;
     (3) A fine of not more than five hundred dollars per violation;
     (4) Issuance of a reprimand or letter of censure;
     (5) Placement of the licensee on probation for a fixed period of time;
     (6) Restriction of the licensee's authorized scope of practice;
     (7) Requiring the licensee to make restitution or a refund as determined by the director to any individual injured by the violation; or
     (8) Requiring the licensee to obtain additional training or instruction.

NEW SECTION.  Sec. 13   Any person aggrieved by the refusal of the director to issue any license provided for in this chapter, or to renew the same, or by the revocation or suspension of any license issued under this chapter or by the application of any penalty under section 12 of this act has the right to appeal the decision of the director to the superior court of the county in which the person maintains his or her place of business. The appeal must be filed within thirty days of the director's decision.

NEW SECTION.  Sec. 14   The department shall immediately suspend the license of a person who has been certified under RCW 74.20A.320 by the department of social and health services as a person who is not in compliance with a support order. If the person has continued to meet all other requirements for reinstatement during the suspension, reissuance of the license is automatic upon the department's receipt of a release issued by the department of social and health services stating that the licensee is in compliance with the order.

NEW SECTION.  Sec. 15   The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION.  Sec. 16   The uniform regulation of business and professions act, chapter 18.235 RCW, governs unlicensed practice, the issuance and denial of licenses, and the discipline of licensees under this chapter.

NEW SECTION.  Sec. 17   This act shall be known and may be cited as the "Washington body art, body piercing, and tattooing act."

NEW SECTION.  Sec. 18   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

Sec. 19   RCW 70.54.340 and 2001 c 194 s 3 are each amended to read as follows:
     The secretary of health shall adopt by rule requirements, in accordance with nationally recognized professional standards, for precautions against the spread of disease, including the sterilization of needles and other instruments, including single-use disposable sharps, reusable sharps, and jewelry, employed by electrologists, persons engaged in the practice of body art, body piercing, and tattoo artists ((in accordance with nationally recognized professional standards)). The secretary shall consider the ((universal)) standard precautions for infection control, as recommended by the United States centers for disease control, and guidelines for infection control, as recommended by ((the national environmental health association and the alliance of professional tattooists,)) national industry standards in the adoption of these sterilization requirements.

Sec. 20   RCW 5.40.050 and 2001 c 194 s 5 are each amended to read as follows:
     A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to: (1) Electrical fire safety, (2) the use of smoke alarms, (3) sterilization of needles and instruments used by persons engaged in the practice of body art, body piercing, tattooing, or electrology, or other precaution against the spread of disease, as required under RCW 70.54.350, or (4) driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.

Sec. 21   RCW 43.24.150 and 2008 c 119 s 22 are each amended to read as follows:
     (1) The business and professions account is created in the state treasury. All receipts from business or professional licenses, registrations, certifications, renewals, examinations, or civil penalties assessed and collected by the department from the following chapters must be deposited into the account:
     (a) Chapter 18.11 RCW, auctioneers;
     (b) Chapter 18.16 RCW, cosmetologists, barbers, and manicurists;
     (c) Chapter 18.96 RCW, landscape architects;
     (d) Chapter 18.145 RCW, court reporters;
     (e) Chapter 18.165 RCW, private investigators;
     (f) Chapter 18.170 RCW, security guards;
     (g) Chapter 18.185 RCW, bail bond agents;
     (h) Chapter 18.280 RCW, home inspectors;
     (i) Chapter 19.16 RCW, collection agencies;
     (j) Chapter 19.31 RCW, employment agencies;
     (k) Chapter 19.105 RCW, camping resorts;
     (l) Chapter 19.138 RCW, sellers of travel;
     (m) Chapter 42.44 RCW, notaries public; ((and))
     (n) Chapter 64.36 RCW, timeshares; and
     (o) Chapter 18.-- RCW (the new chapter created in section 23 of this act).
     Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for expenses incurred in carrying out these business and professions licensing activities of the department. Any residue in the account shall be accumulated and shall not revert to the general fund at the end of the biennium.
     (2) The director shall biennially prepare a budget request based on the anticipated costs of administering the business and professions licensing activities listed in subsection (1) of this section, which shall include the estimated income from these business and professions fees.

NEW SECTION.  Sec. 22   The director of licensing and the department of health, beginning on the effective date of this section, may take such steps as are necessary to ensure that this act is implemented July 1, 2010.

NEW SECTION.  Sec. 23   Sections 1 through 18 of this act constitute a new chapter in Title 18 RCW.

NEW SECTION.  Sec. 24   Sections 1 through 21 of this act take effect July 1, 2010.