Senate Bill No. 573

(By Senator Prezioso)

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[Introduced February 13, 2012; referred to the Committee on Education; and then to the Committee on Government Organization.]

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A BILL to repeal §30-27-15 and §30-27-16 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-27-3, §30-27-5, §30-27-6, §30-27-8, §30-27-10, §30-27-11, §30-27-12, §30-27-14, §30-27-20, §30-27-21, §30-27-22 and §30-27-23 of said code, all relating to professions and occupations; Board of Barbers and Cosmetologists; definitions; powers and duties of the board; rulemaking; professional license requirements and renewal; student registration; health certificate requirements; complaints, procedure and disciplinary action; hearing and right of appeal; judicial review; and licensing schools of aesthetics, barbering, cosmetology and manicuring under the West Virginia Higher Education Policy Commission.

Be it enacted by the Legislature of West Virginia:

    That §30-27-15 and §30-27-16 of the Code of West Virginia, 1931 as amended, be repealed; and that §30-27-3, §30-27-5, §30-27-6, §30-27-8, §30-27-10, §30-27-11, §30-27-12, §30-27-14, §30-27-20, §30-27-21, §30-27-22 and §30-27-23 of said code be amended and reenacted, all to read as follows:

ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.

§30-27-3. Definitions.

    As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

    (a) “Aesthetics” or “esthetics” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

    (1) Administering cosmetic treatments to enhance or improve the appearance of the skin, including cleansing, toning, performing effleurage or other related movements, stimulating, exfoliating or performing any other similar procedure on the skin of the human body or scalp;

    (2) Applying, by hand or with a mechanical or electrical apparatus, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person’s face, neck, back, shoulders, hands, elbows and feet up to and including the knee;

    (3) The rubbing, cleansing, exercising, beautifying or grooming of another person’s face, neck, back, shoulders, hands, elbows and feet up to and including the knee;

    (4) The waxing, tweezing and threading of hair on another person’s body;

    (5) The wrapping of another person’s body in a body wrap;

    (6) Applying artificial eyelashes and eyebrows; and

    (7) The lightening of hair on the body except the scalp.

    (b) “Aesthetician” or “esthetician” means a person licensed under the provisions of this article who engages in the practice of aesthetics.

    (c) “Applicant” means a person making application for a professional license, license, certificate, registration, permit or renewal under the provisions of this article.

    (d) “Barber” means a person licensed under the provisions of this article who engages in the practice of barbering.

    (e) “Barbering” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

    (1) Shaving, shaping and/or trimming the beard;

    (2) Cutting, singeing, shampooing, arranging, dressing, tinting, bleaching, or applying lotions or tonics on human hair, or a wig or hairpiece; and

    (3) Applications, treatments or rubs of the scalp, face, or neck with oils, creams, lotions, cosmetics, antiseptics, powders, or other preparations in connection with the shaving, cutting or trimming of the hair or beard.

    (f) “Barber crossover” or “cosmetologist crossover” is a person who is licensed to perform barbering and cosmetology.

    (g) “Barber permanent waving” means the following acts done on the human body for compensation and not for the treatment of disease:

    (1) The bleaching or tinting of hair; and

    (2) The permanent waving of hair.

    (h) “Barber permanent wavist” means a person licensed to perform barbering and barber permanent waving.

    (i) “Board” means the West Virginia Board of Barbers and Cosmetologists.

    (j) “Certificate” means an instructor certificate to teach in a school under the provisions of this article.

    (k) “Certificate holder” means a person certified as an instructor to teach in a school under the provisions of this article.

    (l) (j) “Cosmetologist” means a person licensed under the provisions of this article who engages in the practice of cosmetology.

    (m) (k) “Cosmetology” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

    (1) Cutting, styling, shaping, arranging, braiding, weaving, dressing, adding extensions, curling, waving, permanent waving, relaxing, straightening, shampooing, cleansing, singeing, bleaching, tinting, coloring, waxing, tweezing, or similarly work on human hair, or a wig or hairpiece, by any means, including hands, mechanical or electrical devices or appliances;

    (2) Nail care;

    (3) Applying by hand or with a mechanical or electrical device or appliance, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person’s face, neck, shoulders, hands, elbows and feet up to and including the knee;

    (4) The rubbing, cleansing, exercising, beautifying or grooming of another person’s face, neck, shoulders, hands, elbows and feet up to and including the knee;

    (5) The wrapping of another person’s body in a body wrap; and

    (6) Performing aesthetics.

    (n) (l) “General supervision” means:

    (1) For schools, a master or certified instructor is on the premises and is quickly and easily available; or

    (2) For salons, a professional licensee is on the premises and is quickly and easily available.

    (o) (m) “Hair braiding” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease: Braiding, plaiting, twisting, wrapping, threading, weaving, extending or locking of natural human hair by hand or mechanical device.

    (p) (n) “License” means a professional license, a salon license or a school license.

    (o) “Licensed School” means a facility which has been approved by the West Virginia Higher Education Policy Commission to educate persons to be licensed with professional licenses under the provisions of this article.

    (q) (p) “Licensee” means a person, corporation or firm holding a license issued under the provisions of this article.

    (r) (q) “Nail care” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

    (1) The cleansing, dressing, or polishing of nails of a person;

    (2) Performing artificial nail service; and

    (3) The cosmetic treatment of the feet up to the knee and the hands up to the elbow.

    (s) (r) “Nail technician” or “manicurist” means a person licensed under the provisions of this article who engages in the practice of nail care.

    (t) (s) “Permit” means a work permit.

    (u) (t) “Permitee” means a person holding a work permit.

    (v) (u) “Professional license” means a license to practice as a aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician.

    (w) (v) “Registration” means a registration issued by the board to a person who rents or leases a booth or chair from a licensed salon owner and/or operator or a registration issued by the board to a person who is a student in a school.

    (x) (w) “Registrant” means a person who holds a registration under the provisions of this article.

    (y) (x) “Salon” means a shop or other facility where a person practices under a professional license.

    (z) (y) “Salon license” means a license to own and operate a salon.

    (aa) “School” means a facility to educate persons to be licensed with professional licenses under the provisions of this article.

    (bb) “School license” means a license to own and operate a school.

    (cc) (z) “Student registration” means a registration issued by the board to a student to study at a school licensed under the provisions of this article.

§30-27-5. Powers and duties of the board.

    (a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.

    (b) The board shall:

    (1) Hold meetings, conduct hearings and administer examinations;

    (2) Establish requirements for licenses, permits, certificates and registrations;

    (3) Establish procedures for submitting, approving and rejecting applications for licenses, permits, certificates and registrations;

    (4) Determine the qualifications of any applicant for licenses, permits, certificates and registrations;

    (5) Prepare, conduct, administer and grade examinations for professional licenses and certificates;

    (6) Determine the passing grade for the examinations;

    (7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;

    (8) Hire, discharge, establish the job requirements and fix the compensation of the executive director;

    (9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators/inspectors and contracted employees necessary to enforce the provisions of this article: Provided, That any investigator/inspector employed by the board on July 1, 2009, shall retain their coverage under the classified service, including job classification, job tenure and salary, until that person retires or is dismissed: Provided, however, That nothing may prohibit the disciplining or dismissal of any investigator/inspector for cause;

    (10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

    (11) Establish the criteria for the training of investigators/inspectors;

    (12) Set the requirements for investigations and inspections;

    (13) Conduct disciplinary hearings of persons regulated by the board;

    (14) Determine disciplinary action and issue orders;

    (15) Institute appropriate legal action for the enforcement of the provisions of this article;

    (16) Maintain an accurate registry of names and addresses of all persons regulated by the board;

    (17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

    (18) Establish the continuing education requirements for professional licensees and certificate holders;

    (19) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, permits, certificates and registrations;

    (20) Establish a fee schedule;

    (21) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

    (22) Take all other actions necessary and proper to effectuate the purposes of this article.

    (c) The board may:

    (1) Establish joint licenses;

    (2) Contract with third parties to administer the examinations required under the provisions of this article;

    (3) Sue and be sued in its official name as an agency of this state; and

    (4) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-27-6. Rulemaking.

    (a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

    (1) Standards and requirements for licenses, permits, certificates and registrations;

    (2) Procedures for examinations and reexaminations;

    (3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

    (4) Educational and experience requirements;

    (5) (4) The passing grade on the examinations;

    (6) Standards for approval of courses and curriculum;

    (7) (5) Procedures for the issuance and renewal of licenses, permits, certificates and registrations;

    (8) (6) A fee schedule;

    (9) (7) Continuing education requirements for professional licensees and certificate holders;

    (10) (8) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, permitees, certificate holders and registrants;

    (11) (9) Designating the regions for investigators/inspectors;

    (12)(10)Criteria for the training of investigators/inspectors;

    (13)(11) Requirements for investigations and inspections;

    (14)(12) Requirements for inactive or revoked licenses, permits, certificates and registrations;

    (15) Establishing the training program and requirements for instructors for schools licensed under this article;

    (16) (13) Establishing operating procedures for salons; and

    (17) (14) Any other rules necessary to effectuate the provisions of this article.

    (b) All of the board’s rules in effect on July 1, 2009, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

    (c) The board is authorized to file an emergency rule for the implementation of its fee schedule in 2009.

§30-27-8. Professional license requirements.

    (a) An applicant for a professional license to practice as a aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician shall present satisfactory evidence that he or she:

    (1) Is at least eighteen years of age;

    (2) Is of good moral character;

    (3) Has a high school diploma, a GED, or has passed the “ability to benefit test” approved by the United States Department of Education;

    (4) Has graduated from a licensed school which has been approved by the board in a program approved by the West Virginia Higher Education Policy Commission. This school shall require completion of a program of supervised academic instruction of at least: two thousand hours for a barber permanent wave or cosmetology program; eighteen hundred hours for a barber stylist program; six hundred hours for an aesthetician program; four hundred hours for a manicuring program; five hundred hours for a crossover course from a barber stylist course; three hundred hours for a crossover course from a barber permanent wave or cosmetology program;

    (5) Has passed an examination that tests the applicant’s knowledge of subjects specified by the board: Provided, That the board may recognize a certificate or similar license in lieu of the examination or part of the examination that the board requires;

    (6) Has paid the applicable fee;

    (7) Presents a certificate of health from a licensed physician;

    (8) Is a citizen of the United States or is eligible for employment in the United States; and

    (9) Has fulfilled any other requirement specified by the board.

    (b) A license to practice issued by the board prior to July 1, 2009, shall for all purposes be considered a professional license issued under this article: Provided, That a person holding a license issued prior to July 1, 2009, must renew the license pursuant to the provisions of this article.

§30-27-10. Professional license and certificate renewal requirements.

    (a) A professional licensee and certificate holder shall annually or biennially on or before January 1, renew his or her professional license or certificate by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.

    (b) The board shall charge a fee for each renewal of a license or certificate, and a late fee for any renewal not paid by the due date.

    (c) The board shall require as a condition of renewal of a professional license or certificate that each licensee or certificate holder complete continuing education.

    (d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license or certificate.

§30-27-11. Work permit.

    (a) The board may issue a work permit to practice to an applicant who:

    (1) Has graduated from a licensed school approved by the board or has completed the course requirements in a specific field;

    (2) Is waiting to take the examination;

    (3) Has employment in the field in which he or she applied to take the examination and is working under the general supervision of a professional licensee;

    (4) Has paid the work permit fee;

    (5) Has presented a certificate of health issued by a licensed physician;

    (6) Is a citizen of the United States or is eligible for employment in the United States; and

    (7) Meets all the other requirements specified by the board.

    (b) A work permit expires at the end of the month after issuance following the next examination in the specific field. A work permit may be renewed once.

    (c) While in effect, a work permitee is subject to the restrictions and requirements imposed by this article.

§30-27-12. Student registration.

    (a) Prior to commencing studies in a licensed school licensed under the provisions of this article, a student shall acquire a student registration issued by the board.

    (b) An applicant for a student registration shall present satisfactory evidence that he or she:

    (1) Is enrolled as a student in an approved a licensed school or enrolled in an approved course;

    (2) Is of good moral character;

    (3) Has paid the required fee;

    (4) Has presented a certificate of health issued by a licensed physician; and

    (5) Is a citizen of the United States or is eligible for employment in the United States.

    (c) The student registration is good during the prescribed period of study for the student.

    (d) The student may perform acts constituting barbering, barber permanent waving, cosmetology, aesthetics or nail care in a school under the general supervision of a master or certified instructor.

§30-27-14. Health certificate requirements.

    (a) It is unlawful for a person to practice as a professional licensee, be or a permitee or be a certified instructor while having an infectious, contagious or communicable disease.

    (b) The board may, with cause, require a professional licensee, or a permitee or certified instructor to submit to a physical examination and file a certificate of health.

§30-27-20. Complaints; investigations; due process procedure;               grounds for disciplinary action.

    (a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.

    (b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, permittee or registrant. or certificate holder.

    (c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, permittee, or registrant or certificate holder has violated subsection (g) of this section or rules promulgated pursuant to this article.

    (d) Upon a finding that probable cause exists that the licensee, permittee, or registrant or certificate holder has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, permit, or registration or certification or the imposition of sanctions against the licensee, permittee or registrant or certificate holder. Any hearing shall be held in accordance with the provisions of this article.

    (e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

    (f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

    (g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, permit, or registration or certification of, impose probationary conditions upon or take disciplinary action against, any licensee, permittee or registrant or certificate holder for any of the following reasons once a violation has been proven by a preponderance of the evidence:

    (1) Obtaining a license, permit, or registration or certification by fraud, misrepresentation or concealment of material facts;

    (2) Being convicted of a felony or other crime involving moral turpitude;

    (3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;

    (4) Intentional violation of a lawful order or legislative rule of the board;

    (5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;

    (6) Aiding or abetting unlicensed practice; or

    (7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

    (h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:

    (1) Reprimand;

    (2) Probation;

    (3) Administrative fine, not to exceed $1,000 per day per violation;

    (4) Mandatory attendance at continuing education seminars or other training;

    (5) Practicing under supervision or other restriction;

    (6) Requiring the licensee, permittee, or registrant or certificate holder to report to the board for periodic interviews for a specified period of time; or

    (7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-27-21. Procedures for hearing; right of appeal.

    (a) Hearings shall be governed by the provisions of section eight, article one of this chapter.

    (b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

    (c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

    (d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

    (e) If, after a hearing, the board determines the licensee, permittee, or registrant or certificate holder has violated subsection (g) of this section or the board’s rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-27-22. Judicial review.

    Any licensee, permittee, or registrant or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-27-23. Criminal proceedings; penalties.

    (a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, permitee, or registrant or certificate holder has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

    (b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

    NOTE: The purpose of this bill is to move the licensing of Cosmetology and Barber schools and instructors from the professional licensing board to the West Virginia Higher Education Policy Commission the same as other occupational and vocational schools, specifically modeled after the language covering Massage Therapy schools. The bill moves the various program length requirements from regulation into code. It provides for the continuation of school and instructor licenses as if originally issued by the West Virginia Higher Education Policy Commission. And, it removes superfluous language from the code.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.