Title of Regulation: 18VAC41-60. Body-Piercing Regulations (amending 18VAC41-60-220).

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 B. 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 body piercing regulations consistent with the tattooing regulations and esthetics regulations, which already contain the proposed language. Additionally, as the language currently stands, if an applicant attempts to obtain a license 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 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 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, or welfare of citizens.

Rationale for Using Fast-Track Process: The fast-track rulemaking process is being used to amend the board's regulation 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 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 who attempt to obtain a license 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 Administrative Process Act.

Issues: The advantage to the public is a reduction in the potential risk of a licensee who may have obtained his license by false or fraudulent representation providing services to the public; there are no disadvantages. The primary advantage to the agency is having a regulation to address incidences of individuals who attempt to obtain a license by false or fraudulent representation, which ultimately protects the health, safety, and welfare of citizens; there are no disadvantages. 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 amend its body piercing regulations so that having attempted to obtain a license by fraudulent representation is grounds for denial or revocation of Board issued 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 for many reasons; amongst these, the Board can revoke or refuse to issue these credentials if the licensee or applicant obtained, renewed, or reinstated a license by false or fraudulent representation. The Board proposes to add attempted to obtain to this sentence so that the Board has the power to refuse licensure to someone who is not a current licensee, but who has attempted to obtain a license using false or fraudulent information.

This regulatory change is unlikely to impact current licensees unless they fail to renew their Board issued credentials within 30 days of their renewal date, are then required to reinstate their credentials and they attempt to get them reinstated by lying to the Board. Individuals who fall into this category will likely have their reinstatement application denied and may be subject to Board-issued fines. With this proposed regulatory change, applicants for licensure who lie in attempt to gain licensure will have that licensure denied. To the extent that the public is protected from poor and harmful services on account of the Board's credentialing programs, they will also benefit from this proposed regulatory change that allows the Board to refuse licensure to individuals who are attempting fraud.

Businesses and Entities Affected. The Department of Professional and Occupational Regulation (DPOR) reports that there are 189 entities currently licensed, certified or permitted 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 23 small businesses will be affected by these proposed regulations. These businesses are unlikely to incur any costs unless affected small business owners attempt to obtain Board credentials fraudulently.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The Board likely cannot further reduce any small business costs while at the same time stopping individuals from attempting to obtain Board credentials fraudulently.

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 by false or fraudulent representation grounds for (i) license revocation or suspension; (ii) denial of application for license or of renewal or reinstatement of license; or (iii) imposition of a monetary penalty.

18VAC41-60-220. Grounds for license revocation or suspension or probation; 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 and suspend, place on probation or revoke or refuse to renew or reinstate any 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 is incompetent or negligent in practice, or incapable mentally or physically, as those terms are generally understood in the profession, to practice as a body piercer or body piercer ear only;

2. The licensee or applicant is convicted of fraud or deceit in the practice body piercing or body piercing ear only;

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

4. The licensee or applicant violates or induces others to violate, or cooperates with others in violating, any of the provisions of this chapter 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 body piercers or body piercers ear only may practice or offer to practice;

5. The licensee 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 this chapter;

6. A licensee 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. The board shall not be responsible for the licensee's failure to receive notices, communications and correspondence caused by the licensee'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 or applicant publishes or causes to be published any advertisement that is false, deceptive, or misleading;

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

9. The licensee or applicant has been convicted or found guilty in any jurisdiction of any misdemeanor or felony. Any plea of nolo contendere shall be considered a conviction for the purpose of this section. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such guilt; or

10. The licensee, certificate holder, temporary license holder, or applicant fails to notify the board in writing within 30 days that the licensee, certificate holder, temporary license holder, or applicant has pleaded guilty or nolo contendere or was convicted and found guilty of any misdemeanor or felony.

B. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend, place on probation or refuse to renew or reinstate the license of any body-piercing salon or body-piercing ear only salon or impose a fine as permitted by law, or both, if the board finds that:

1. The owner or operator of the body-piercing salon or body-piercing ear only salon fails to comply with the facility requirements of body-piercing salons or body-piercing ear only salons provided for in this chapter or in any local ordinances; or

2. The owner or operator allows a person who has not obtained a license to practice as a body piercer or body piercer ear only unless the person is duly enrolled as an apprentice.

C. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend, place on probation 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 body piercing or body piercing ear only.