By: Madla S.B. No. 1812
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of body piercing parlors; providing an
1-2 administrative and a criminal penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle G, Title 2, Health and Safety Code, is
1-5 amended by adding Chapter 148 to read as follows:
1-6 CHAPTER 148. BODY PIERCING PARLORS
1-7 Sec. 148.001. DEFINITIONS. In this chapter:
1-8 (1) "Body piercing" means the creation of an opening
1-9 in an individual's body to insert jewelry or another decoration.
1-10 (2) "Body piercer" means a person who performs body
1-11 piercing.
1-12 (3) "Body piercing parlor" means an establishment or
1-13 facility in which body piercing is performed.
1-14 Sec. 148.002. LICENSE REQUIRED. (a) A person may not
1-15 conduct, operate, or maintain a body piercing parlor unless the
1-16 person holds a license issued by the department to:
1-17 (1) operate the body piercing parlor parlor licensed
1-18 under this Chapter; or
1-19 (2) operate a tattoo parlor licensed under Chapter
1-20 146.
1-21 (b) The license shall be displayed in a prominent place in
2-1 the body piercing parlor.
2-2 Sec. 148.003. LICENSE APPLICATION. (a) To receive a body
2-3 piercing parlor license, a person must submit a license application
2-4 to the department on a form prescribed by the department and must
2-5 submit an application fee.
2-6 (b) On receipt of a license application, the department
2-7 shall inspect the proposed body piercing parlor to determine
2-8 compliance with this chapter and rules adopted by the board under
2-9 this chapter. In addition, the department shall request
2-10 confirmation from the appropriate building and zoning officials in
2-11 the municipality or county in which the parlor is proposed to be
2-12 located to determine compliance with existing building and zoning
2-13 codes applicable to the parlor.
2-14 (c) The department may issue a license after determining
2-15 that the parlor is in compliance with applicable statutes, rules,
2-16 and building and zoning codes.
2-17 Sec. 148.004. LICENSE RENEWAL. A license is valid for one
2-18 year from the date of issuance and may be renewed annually on
2-19 payment of the required renewal fee.
2-20 Sec. 148.005. FEES. (a) The board shall set license fees
2-21 and license renewal fees in amounts necessary to administer this
2-22 chapter.
2-23 (b) Fees collected under this section may only be
2-24 appropriated to the department to administer and enforce this
2-25 chapter.
3-1 Sec. 148.006. CHANGE OF LOCATION. (a) A person holding a
3-2 license under this chapter who intends to change the location of
3-3 the body piercing parlor shall notify the department in writing of
3-4 that intent not less than 30 days before the change is to occur.
3-5 The notice shall include the street address of the new location and
3-6 the name and residence address of the individual in charge of the
3-7 business at the new location.
3-8 (b) Not later than the 10th day after the change of location
3-9 is complete, a person holding a license under this chapter shall
3-10 notify the department in writing and shall verify the information
3-11 submitted under Subsection (a).
3-12 (c) Notice under this section must be sent to the
3-13 department's central office by certified mail, return receipt
3-14 requested.
3-15 Sec. 148.007. COMPLIANCE WITH CHAPTER AND RULES. A person
3-16 who owns, operates, or maintains a body piercing parlor or who
3-17 performs body piercing under a license issued by the department
3-18 under Chapter 146 shall comply with this chapter and rules adopted
3-19 under this chapter.
3-20 Sec. 148.008. ASEPTIC TECHNIQUES. A person who owns,
3-21 operates, or maintains a body piercing parlor and each body piercer
3-22 who works in the parlor shall take precautions to prevent the
3-23 spread of infection, including:
3-24 (1) using germicidal soap to clean the hands of the
3-25 body piercer and the skin area of the client to be pierced;
4-1 (2) wearing clean apparel and rubber gloves;
4-2 (3) using sterile tools and equipment as provided by
4-3 Section 148.011; and
4-4 (4) keeping the body piercer parlor in a sanitary
4-5 condition.
4-6 Sec. 148.009. BUILDING AND LOCATION. A body piercing parlor
4-7 must be in a permanent, nondwelling building located in an area in
4-8 which the location is permissible under local zoning codes, if any.
4-9 Sec. 148.010. SANITATION REQUIREMENTS. (a) The board by
4-10 rule shall establish sanitation requirements for body piercing
4-11 parlors and any other necessary requirements relating to the
4-12 building or part of the building in which a body piercing parlor is
4-13 located.
4-14 (b) A person who owns, operates, or maintains a body
4-15 piercing parlor shall comply with the rules adopted under this
4-16 section.
4-17 Sec. 148.011. TOOLS AND EQUIPMENT. (a) A body piercer
4-18 shall use tools and equipment for body piercing that have been
4-19 properly sterilized and kept in a sterile condition.
4-20 (b) A body piercer shall sterilize tools and equipment used
4-21 on one client before using them on another client.
4-22 (c) Tools and equipment shall be sterilized by:
4-23 (1) dry heating in an oven at 320 degrees Fahrenheit
4-24 for at least one hour; or
4-25 (2) steam pressure treatment in an autoclave.
5-1 (d) All needles and instruments shall be kept in a clean,
5-2 dust-tight container when not in use.
5-3 Sec. 148.012. BODY PIERCING PROHIBITED FOR CERTAIN PERSONS.
5-4 A body piercer may not perform body piercing on:
5-5 (1) a person younger than 18 years of age without the
5-6 written and notarized consent of a parent, managing conservator, or
5-7 guardian of the minor which indicates the part of the minor's body
5-8 that may be pierced; or
5-9 (2) a person whom the body piercer suspects is under
5-10 the influence of alcohol or drugs.
5-11 Sec. 148.013. MAINTENANCE OF RECORDS. (a) A body piercer
5-12 shall maintain a permanent record of each person pierced by the
5-13 body piercer for a period established by the board.
5-14 (b) The record shall be available for inspection on the
5-15 request of the department.
5-16 Sec. 148.014. REPORT OF INFECTION. A person who owns,
5-17 operates, or maintains a body piercing parlor shall report to the
5-18 department any infection resulting from body piercing as soon as it
5-19 becomes known.
5-20 Sec. 148.015. RULES; ENFORCEMENT. (a) The board shall
5-21 adopt rules to implement this chapter.
5-22 (b) The department shall enforce this chapter and the rules
5-23 adopted under this chapter and may issue orders to compel
5-24 compliance.
5-25 Sec. 148.016. INSPECTIONS. (a) The department shall
6-1 inspect a body piercing parlor to determine if the parlor complies
6-2 with this chapter and the rules adopted under this chapter.
6-3 (b) A person who owns, operates, or maintains a body
6-4 piercing parlor shall allow inspection of the parlor by the
6-5 department at any time the parlor is in operation.
6-6 (c) The department shall inform the person who owns,
6-7 operates, or maintains a body piercing parlor of any violation
6-8 discovered by the department under this section and shall give the
6-9 person a reasonable period in which to take necessary corrective
6-10 action.
6-11 Sec. 148.017. LICENSE DENIAL, SUSPENSION, OR REVOCATION.
6-12 (a) The department may refuse to issue a license or suspend or
6-13 revoke a license issued under this chapter if an applicant or
6-14 license holder does not comply with this chapter or a rule adopted
6-15 or order issued under this chapter.
6-16 (b) The refusal to issue a license, the suspension or
6-17 revocation of a license, and any appeals are governed by the
6-18 board's formal hearing procedures and the procedures for a
6-19 contested case hearing under the Administrative Procedure and Texas
6-20 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes). A
6-21 person may appeal a final decision of the department as provided by
6-22 the Administrative Procedure and Texas Register Act (Article
6-23 6252-13a, Vernon's Texas Civil Statutes).
6-24 Sec. 148.018. OFFENSE; CRIMINAL PENALTY. (a) A person
6-25 commits an offense if the person violates this chapter or a rule
7-1 adopted under this chapter.
7-2 (b) An offense under this section is a Class C misdemeanor.
7-3 (c) Each day of violation constitutes a separate offense.
7-4 (d) It is an exception to the application of this section
7-5 that the part of the minor's body that is pierced is the minor's
7-6 ear.
7-7 Sec. 148.019. ADMINISTRATIVE PENALTY. (a) The commissioner
7-8 may impose an administrative penalty against a person who violates
7-9 a rule adopted under Section 148.007 or an order adopted or license
7-10 issued under this chapter.
7-11 (b) The penalty for a violation may be in an amount not to
7-12 exceed $5,000. Each day a violation continues or occurs is a
7-13 separate violation for purposes of imposing a penalty.
7-14 (c) The amount of the penalty shall be based on:
7-15 (1) the seriousness of the violation, including the
7-16 nature, circumstances, extent, and gravity of any prohibited acts,
7-17 and the hazard or potential hazard created to the health, safety,
7-18 or economic welfare of the public;
7-19 (2) the economic harm to property or the environment
7-20 caused by the violation;
7-21 (3) the history of previous violations;
7-22 (4) the amounts necessary to deter future violations;
7-23 (5) efforts to correct the violation; and
7-24 (6) any other matter that justice may require.
7-25 (d) The commissioner who determines that a violation has
8-1 occurred shall issue an order that states the facts on which the
8-2 determination is based, including an assessment of the penalty.
8-3 (e) Within 14 days after the date the report is issued, the
8-4 commissioner shall give written notice of the report to the person.
8-5 The notice may be given by certified mail. The notice must include
8-6 a brief summary of the alleged violation and a statement of the
8-7 amount of the recommended penalty and must inform the person that
8-8 the person has a right to a hearing on the occurrence of the
8-9 violation, the amount of the penalty, or both the occurrence of the
8-10 violation and the amount of the penalty.
8-11 (f) Within 20 days after the date the person receives the
8-12 notice, the person in writing may accept the determination and
8-13 recommended penalty of the commissioner or may make written request
8-14 for a hearing on the occurrence of the violation, the amount of the
8-15 penalty, or both the occurrence of the violation and the amount of
8-16 the penalty.
8-17 (g) If the person accepts the determination and recommended
8-18 penalty of the commissioner, the commissioner by order shall
8-19 approve the determination and impose the recommended penalty.
8-20 (h) If the person requests a hearing or fails to respond
8-21 timely to the notice, the commissioner shall set a hearing and give
8-22 notice of the hearing to the person. The hearing shall be held by
8-23 an administrative law judge of the State Office of Administrative
8-24 Hearings. The administrative law judge shall make findings of fact
8-25 and conclusions of law and promptly issue to the commissioner a
9-1 proposal for a decision about the occurrence of the violation and
9-2 the amount of a proposed penalty. Based on the findings of fact,
9-3 conclusions of law, and proposal for a decision, the commissioner
9-4 by order may find that a violation has occurred and impose a
9-5 penalty or may find that no violation occurred.
9-6 (i) The notice of the commissioner's order given to the
9-7 person under the Administrative Procedure and Texas Register Act
9-8 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
9-9 subsequent amendments must include a statement of the right of the
9-10 person to judicial review of the order.
9-11 (j) Within 30 days after the date the commissioner's order
9-12 is final as provided by Section 16(c), Administrative Procedure and
9-13 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
9-14 Statutes), the person shall:
9-15 (1) pay the amount of the penalty;
9-16 (2) pay the amount of the penalty and file a petition
9-17 for judicial review contesting the occurrence of the violation, the
9-18 amount of the penalty, or both the occurrence of the violation and
9-19 the amount of the penalty; or
9-20 (3) without paying the amount of the penalty, file a
9-21 petition for judicial review contesting the occurrence of the
9-22 violation, the amount of the penalty, or both the occurrence of the
9-23 violation and the amount of the penalty.
9-24 (k) Within the 30-day period, a person who acts under
9-25 Subsection (j)(3) of this section may:
10-1 (1) stay enforcement of the penalty by:
10-2 (A) paying the amount of the penalty to the
10-3 court for placement in an escrow account; or
10-4 (B) giving to the court a supersedeas bond
10-5 approved by the court for the amount of the penalty and that is
10-6 effective until all judicial review of the commissioner's order is
10-7 final; or
10-8 (2) request the court to stay enforcement of the
10-9 penalty by:
10-10 (A) filing with the court a sworn affidavit of
10-11 the person stating that the person is financially unable to pay the
10-12 amount of the penalty and is financially unable to give the
10-13 supersedeas bond; and
10-14 (B) giving a copy of the affidavit to the
10-15 commissioner by certified mail.
10-16 (l) The commissioner who receives a copy of an affidavit
10-17 under Subsection (k)(2) of this section may file, with the court
10-18 within five days after the date the copy is received, a contest to
10-19 the affidavit. The court shall hold a hearing on the facts alleged
10-20 in the affidavit as soon as practicable and shall stay the
10-21 enforcement of the penalty on finding that the alleged facts are
10-22 true. The person who files an affidavit has the burden of proving
10-23 that the person is financially unable to pay the amount of the
10-24 penalty and to give a supersedeas bond.
10-25 (m) If the person does not pay the amount of the penalty and
11-1 the enforcement of the penalty is not stayed, the commissioner may
11-2 refer the matter to the attorney general for collection of the
11-3 amount of the penalty.
11-4 (n) Judicial review of the order of the commissioner:
11-5 (1) is instituted by filing a petition as provided by
11-6 Section 19, Administrative Procedure and Texas Register Act
11-7 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
11-8 subsequent amendments; and
11-9 (2) is under the substantial evidence rule.
11-10 (o) If the court sustains the occurrence of the violation,
11-11 the court may uphold or reduce the amount of the penalty and order
11-12 the person to pay the full or reduced amount of the penalty. If
11-13 the court does not sustain the occurrence of the violation, the
11-14 court shall order that no penalty is owed.
11-15 (p) When the judgment of the court becomes final, the court
11-16 shall proceed under this subsection. If the person paid the amount
11-17 of the penalty and if that amount is reduced or is not upheld by
11-18 the court, the court shall order that the appropriate amount plus
11-19 accrued interest be remitted to the person. The rate of the
11-20 interest is the rate charged on loans to depository institutions by
11-21 the New York Federal Reserve Bank, and the interest shall be paid
11-22 for the period beginning on the date the penalty was paid and
11-23 ending on the date the penalty is remitted. If the person gave a
11-24 supersedeas bond and if the amount of the penalty is not upheld by
11-25 the court, the court shall order the release of the bond. If the
12-1 person gave a supersedeas bond and if the amount of the penalty is
12-2 reduced, the court shall order the release of the bond after the
12-3 person pays the amount.
12-4 (q) A penalty collected under this section shall be remitted
12-5 to the comptroller for deposit in the general revenue fund.
12-6 (r) All proceedings under this section are subject to the
12-7 Administrative Procedure and Texas Register Act (Article 6252-13a,
12-8 Vernon's Texas Civil Statutes) and its subsequent amendments.
12-9 SECTION 2. (a) A person is not required to obtain a body
12-10 piercing parlor license under Chapter 161, Health and Safety Code,
12-11 as added by this Act, until January 1, 1998.
12-12 SECTION 3. This Act takes effect September 1, 1997, except
12-13 that Section 3 of this Act and Section 148.018, Health and Safety
12-14 Code, as added by this Act, take effect January 1, 1998.
12-15 SECTION 4. The importance of this legislation and the
12-16 crowded condition of the calendars in both houses create an
12-17 emergency and an imperative public necessity that the
12-18 constitutional rule requiring bills to be read on three several
12-19 days in each house be suspended, and this rule is hereby suspended.