Title of Regulation: 18VAC41-40. Wax Technician Regulations (amending 18VAC41-40-260).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 25, 2013.

Effective Date: November 1, 2013.

Agency Contact: William Ferguson, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (804) 527-4295, or email barbercosmo@dpor.virginia.gov.

Basis: Subdivision 5 of § 54.1-201 of the Code of Virginia states that the board has the power and duty to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system.

Purpose: The amendment is needed to keep the wax technician regulations consistent with the board's tattooing regulations and esthetics regulations, which already contain the language proposed in this regulatory action. Additionally, as the language currently stands, if an applicant attempts to obtain a license, certificate, or permit by false or fraudulent representation, the board does not possess the authority to deny the application of the applicant. The language allows the board to initiate proceedings in accordance with the Administrative Process Act against an applicant who attempted to obtain a license, certificate, or permit by false or fraudulent representation. Under the current language of the regulations, even when the applicant is suspected of having attempted to obtain a license, certificate, or permit by false or fraudulent representation, the board must issue the license before it can initiate proceedings against the applicant (now a licensee). This poses a substantial risk to the health, safety, and welfare of citizens.

Rationale for Using Fast-Track Process: The fast-track rulemaking process is being used to amend the board's regulation language for consistency with other board regulations. The amendment is not expected to be controversial as it is anticipated that regulants of the board would favor ensuring those who apply for licensure do not do so through false or fraudulent representation.

Substance: The proposed amendment makes the attempted obtainment of a license, certificate, or permit by false or fraudulent representation grounds for license revocation or suspension; denial of application or renewal or reinstatement of license; or imposition of a monetary penalty. Individuals or entities that attempted to obtain a license, certificate, or permit by false or fraudulent representation would be subject to license revocation or suspension; denial of application or renewal or reinstatement of license; or imposition of a monetary penalty in accordance with the Administrative Process Act.

Issues: The advantage to the public is a reduction in the potential risk of a licensee providing services to the public who may have obtained his license, certificate, or permit by false or fraudulent representation. The primary advantage to the agency is having a regulation to address incidences of individuals who attempted to obtain a license, certificate, or permit by false or fraudulent representation, which ultimately protects the health, safety, and welfare of citizens.

There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Barbers and Cosmetology (Board) proposes to delete the word attempting and add the word attempted to the section of its wax technician regulations that allow the Board to refuse licensure or certification to individuals who use false or fraudulent representations to gain Board credentials.

Result of Analysis. Benefits will likely outweigh costs for this regulatory change.

Estimated Economic Impact. Current regulations allow the Board to revoke or refuse to issue initial or subsequent licenses or certifications for many reasons; amongst these, the Board can revoke or refuse to issue these credentials if the licensee, certificate holder, temporary licensee or applicant attempting to obtain, obtained, renewed, or reinstated a license by false or fraudulent representation. The Board proposes to change attempting to obtain to attempted to obtain in this sentence. This change will not only make this sentence grammatically coherent but will also allow conformity with other Board licensure programs.

Since the Board is only changing the grammar, but not the meaning, of a regulatory requirement, no affected entity is likely to incur any additional costs. To the extent that this change allows better understanding for the public and appropriate regulatory conformity between Board programs, both the public and the Board's regulated entities will likely benefit.

Businesses and Entities Affected. The Department of Professional and Occupational Regulation (DPOR) reports that there are 83 entities currently licensed or certified under these regulations. All of these entities will be affected by these regulatory changes.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on legal employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. DPOR reports that 21 small businesses will be affected by these proposed regulations. These businesses are unlikely to incur any costs on account of this regulatory change.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Affected small businesses are unlikely to incur any costs on account of this regulatory change.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Board for Barbers and Cosmetology concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendment makes the attempted obtainment of a license, certificate, or permit by false or fraudulent representation grounds for denial or revocation of board-issued credentials.

18VAC41-40-260. Grounds for license revocation or suspension; denial of application, renewal or reinstatement; or imposition of a monetary penalty.

A. The board may, in considering the totality of the circumstances, fine any licensee or temporary license holder, and suspend or revoke or refuse to renew or reinstate any license, certificate, or temporary license, or deny any application issued under the provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board if the board finds that:

1. The licensee, certificate holder, temporary license holder or applicant is incompetent, or negligent in practice, or incapable mentally or physically, as those terms are generally understood in the profession, to practice as a wax technician;

2. The licensee, certificate holder, temporary license holder or applicant has been convicted of fraud or deceit in the practice or teaching of waxing;

3. The licensee, certificate holder, temporary license holder or applicant attempting attempted to obtain, obtained, renewed or reinstated a license, certificate, or temporary license by false or fraudulent representation;

4. The licensee, certificate holder, temporary license holder or applicant violates or induces others to violate, or cooperates with others in violating, any of the provisions of these regulations or Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or any local ordinance or regulation governing standards of health and sanitation of the establishment in which any wax technician may practice or offer to practice;

5. The licensee, certificate holder, temporary license holder or applicant fails to produce, upon request or demand of the board or any of its agents, any document, book, record, or copy thereof in a licensee's or owner's possession or maintained in accordance with these regulations;

6. A licensee, certificate holder, or temporary license holder fails to notify the board of a change of name or address in writing within 30 days of the change for each and every license, certificate, or temporary license. The board shall not be responsible for the licensee's, certificate holder's, or temporary license holder's failure to receive notices, communications and correspondence caused by the licensee's, certificate holder's, or temporary license holder's failure to promptly notify the board in writing of any change of name or address or for any other reason beyond the control of the board;

7. The licensee, certificate holder, temporary license holder or applicant publishes or causes to be published any advertisement that is false, deceptive, or misleading;

8. The licensee, certificate holder, temporary license holder or applicant fails to notify the board in writing within 30 days of the suspension, revocation, or surrender of a license, certificate, or temporary license in connection with a disciplinary action in any other jurisdiction or of any license, certificate, or temporary license that has been the subject of disciplinary action in any other jurisdiction; or

9. In accordance with § 54.1-204 of the Code of Virginia, the licensee, certificate holder, or temporary license holder has been convicted in any jurisdiction of a misdemeanor or felony that directly relates to the profession of waxing. The board shall have the authority to determine, based upon all the information available, including the regulant's record of prior convictions, whether the regulant is unfit or unsuited to engage in the profession of waxing. The board will decide each case by taking into account the totality of the circumstances. Any plea of nolo contendere shall be considered a conviction for the purposes of this section. The regulant shall provide a certified copy of a final order, decree or case decision by a court with the lawful authority to issue such order, decree or case decision, and such copy shall be admissible as prima facie evidence of such conviction. This record shall be forwarded by the regulant to the board within 10 days after all appeal rights have expired.

B. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend or refuse to renew or reinstate the license of any school or impose a fine as permitted by law, or both, if the board finds that:

1. An instructor of the approved school fails to teach the curriculum as provided for in these regulations;

2. The owner or director of the approved school permits or allows a person to teach in the school without a current instructor certificate; or

3. The instructor, owner or director is guilty of fraud or deceit in the teaching of waxing.

C. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend or refuse to renew or reinstate the license of any waxing salon or impose a fine as permitted by law, or both, if the board finds that:

1. The owner or operator of the salon fails to comply with the sanitary requirements of waxing salons provided for in these regulations or in any local ordinances; or

2. The owner or operator allows a person who has not obtained a license or a temporary license to practice as a wax technician.

D. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend or refuse to renew or reinstate the license of any licensee or impose a fine as permitted by law, or both, if the board finds that the licensee fails to take sufficient measures to prevent transmission of communicable or infectious diseases or fails to comply with any local, state or federal law or regulation governing the standards of health and sanitation for the practice of waxing.