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AN ACT

RELATING TO HEALTH; ENACTING THE BODY ART SAFE PRACTICES ACT;

AMENDING THE BARBERS AND COSMETOLOGISTS ACT; MAKING AN

APPROPRIATION.

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

Section 1. SHORT TITLE.--Sections 1 through 14 of 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 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

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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

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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. ISSUANCE OF A BODY ART LICENSE.--The board

has authority to issue a body art license to a body artist who

has demonstrated the ability to perform body art and who

conforms with the board's rules with respect to safety,

sterilization and sanitation and a body art operator license

to an operator who conforms with the board's rules.

Section 5. LICENSE--APPLICATION--REVOCATION--

SUSPENSION.--

A. A body artist shall obtain a body art license,

requirements for which shall be defined by the board that

demonstrate that the body artist has the training and

experience necessary to perform body piercing, tattooing or

scarification and to establish and maintain a sanitary and

sterile body art establishment.

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

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unless it has been issued to the 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 of a license annually and 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.

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. A license shall not be suspended or

revoked pursuant to the Body Art Safe Practices Act without

providing the operator or the body artist 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. 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 license. The operator or body artist shall

provide proof of current immunization as required by the

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board, 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. 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 board-issued license with

identification photograph;

(3) the body art establishment name and

hours of operation;

(4) the name and address of the body art

establishment owner;

(5) a complete description of all body art

performed;

(6) a list of all instruments, body jewelry,

sharps and inks used, including names of manufacturers and

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serial or lot numbers or invoices or other documentation

sufficient to identify and locate the manufacturer; and

(7) a copy of the Body Art Safe Practices

Act.

I. 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 6. INSPECTION BY BOARD.--

A. The board shall annually inspect body art

establishments to determine compliance with the Body Art Safe

Practices Act. An operator or body artist 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 or body artist

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 or

body artist, provided that the board official tendered proper

identification prior to the refusal.

Section 7. EXEMPTIONS.--

A. A person who pierces only the outer perimeter

of the ear, not including any cartilage, using a

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pre-sterilized encapsulated single use stud ear piercing

system, implementing appropriate procedures, is exempt from

the requirements of the Body Art Safe Practices Act.

B. A member of a federally recognized tribe, band,

nation or pueblo who performs scarification rituals for

religious purposes is exempt from the requirements of the Body

Art Safe Practices Act.

Section 8. STERILE PROCEDURES AND SANITATION.--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 sterilization or sanitation of non-

disposable items;

C. the prohibition of off-site sterilization; and

D. procedures to control disease borne by contact

with customer or body artist skin mucosa.

Section 9. IMMEDIATE SUSPENSION.--The board may suspend

a license immediately without prior notice to the holder of

the license if it determines, after inspection, that

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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 body artist. 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 or body artist. A license holder may

request an administrative hearing, as provided by Section 5 of

the Body Art Safe Practices Act, if the board does not lift an

immediate suspension within ten days.

Section 10. JUDICIAL REVIEW.--An applicant denied a

license or an operator or body artist whose license is

suspended or revoked by the board may appeal pursuant to

Section 39-3-1.1 NMSA 1978.

Section 11. ENFORCEMENT.--

A. The board may seek relief in district court to

enjoin the operation of a body art establishment or the

practice of a body artist not in compliance with the Body Art

Safe Practices Act.

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

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separate offense.

C. The board may promulgate rules imposing a

schedule of penalties for violations of the Body Art Safe

Practices Act, provided that no penalty exceeds one hundred

fifty dollars ($150).

Section 12. USE OF BARBERS AND COSMETOLOGISTS FUND.--

All license fees and penalties imposed by the board pursuant

to the Body Art Safe Practices Act shall be deposited in the

barbers and cosmetologists fund. Any unexpended or

unencumbered balance remaining at the end of a fiscal year

shall not revert to the general fund.

Section 13. 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 14. 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 by

December 31, 2007.

Section 15. 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 administratively attached to the

regulation and licensing department. The board shall consist

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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 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 members shall be

licensed barbers, two 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

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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."

Section 16. 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, 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

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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 student; and

(12) hire an administrator and other such

staff as necessary to carry out the provisions of the Body Art

Safe Practices 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."

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Section 17. Section 61-17A-20 NMSA 1978 (being Laws

1993, Chapter 171, Section 20, as amended) is amended to read:

"61-17A-20. DURATION, RESTORATION AND RENEWAL OF

LICENSES.--

A. The original issuance and renewal of licenses

to practice as a barber, cosmetologist, instructor,

esthetician, manicurist-pedicurist or electrologist shall be

for a period of one year or less from the date of issuance.

If the licensee fails to renew the license for the next year,

the license is void; provided the license may be restored at

any time during the year following expiration upon the payment

of the appropriate fee and a late charge not to exceed one

hundred dollars ($100) as set forth by board rules. If the

licensee fails to restore the license within one year

following its expiration, the licensee may request restoration

of the license pursuant to rules promulgated by the board.

B. The original issuance and annual renewal of

licenses to operate an establishment or school shall be for a

period of twelve months or less following the issuance of the

license. If the licensee fails to renew the license within

thirty days after its expiration, the license is void, and, to

again obtain a license, an application, required

documentation, payment of the renewal fee and a late fee not

to exceed one hundred dollars ($100) as established by board

rules is required.

C. The board may establish a staggered system of

license expiration."

Section 18. APPROPRIATION.--Three hundred thousand

dollars ($300,000) is appropriated from the barbers and

cosmetology fund to the board of barbers and cosmetologists

for expenditure in fiscal year 2008 for administration of the

Body Art Safe Practices Act. Any unexpended or unencumbered

balance remaining at the end of fiscal year 2008 shall revert

to the general fund.

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