by Tom Beveridge
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During my second year of law school, I experienced the exhilaration of my first tattoo. The artist was located in a strip mall and, within three months of my experience, he was long gone. A “scratcher” by most standards, the artist’s work faded quickly. I was left with a piece of art that would require a cover-up years later.
When I became serious about tattooing, I found a professional artist with a notable reputation. For the past ten years, I have continued to be tattooed by this artist, as well as other artists in his studios. My tattoos are of the utmost quality, and I never once worried about my health or safety. His studios are clean and professionally maintained. His artists are competent, well-trained and knowledgeable in the standards of health and industry safety. Unfortunately, however, not all studios or artists maintain such standards.
In June of this year, legislation was presented to the Pennsylvania House of Representatives to regulate the conduct of tattooing and piercing businesses and artists in the Commonwealth. Introduced by Republican State Representative Rosemary M. Brown (Monroe/Pike counties), The Body Art Establishment Regulation Act , HB1249, was initially referred to the Committee on Health on April 23, 2013. On June 3, 2013, the Committee issued an amended copy of the Bill for consideration by the House. As of this writing, the Bill remains in the House of Representatives awaiting consideration.
As presently written, the Body Art Establishment Regulation Act requires the Pennsylvania Department of Health to establish regulations designed to license “body art establishments”, including temporary facilities, as well as provide training requirements for operators, practitioners and apprentices. The term “body art” is defined as “the practice of physical body adornment in permitted establishments by operators utilizing, but not limited to, …body piercing, tattooing and permanent cosmetics.” Such practices may be for or not for profit and performed on premises that are permanent or temporary (ie. tattoo conventions, etc.). Somewhat in contrast to the above definition which included temporary facilities in the definition of “body art establishment”, the term “establishment” is also defined by the Bill. When used alone, the term refers to a physical place of business, “permanent in nature”, and includes all areas used by the practitioner and customers. Also defined, a “temporary establishment” is defined as an establishment that performs body art services and is operated by a licensed operator which conducts business outside the facility for not more than seven (7) consecutive days in conjunction with a single event.
The legislation also requires that no “person” may establish, maintain or operate a body art establishment without first obtaining a license from the Department of Health. The term “person” refers to an individual, corporation, partnership or association. Important also to interpreting this legislation are the definitions of “operator” and “practitioner”. An “operator” is either the owner or his designee who has ownership, control or custody of any place of business or employment, AND manages the day-to-day operations of a body art establishment. A “ practitioner” is a person who performs the act of tattooing permanent cosmetics or body piercing.
The application for a license shall include the basic information such as the applicant’s name, home and business addresses and phone numbers and business name. Additionally, if the applicant is a business entity such as a partnership, the application must include the names and addresses of all the partners. If it is a corporation, the application must include the names and addresses of all corporate officers. It also requires a complete description of all procedures to be provided, the hours of operation and the name of the actual operator. Finally, plans and specifications showing the location of the proposed establishment, as well as a floor plan of the business, must accompany the application. The floor plan must include the layout of the reception area, “procedure” areas, cleaning and sterilization areas, storage area and toilet facilities.
Also, the application must be accompanied by a copy of the informed consent form that will be used by the establishment for each procedure and a signed and dated certification of the applicant that he understands the requirements of this legislation. The Department can even require “additional information” – the extent of which is undefined by this legislation. Finally, the application must be accompanied by a $100.00 license fee per establishment. However, the Department may increase this amount as it deems necessary to cover the costs of annual inspections and administration of this proposed law.
Once issued, the license is good for one (1) year , nontransferable and must be posted so that it is clearly visible to all customers. Renewal of the license is not automatic. Rather, a licensee must file an application for renewal – the details of which are not outlined in the Bill – prior to the expiration of the initial license. Also, a license is nontransferable between persons (including companies and partnerships) or between one body art establishment and another. This seems to imply that one company with several locations will be required to have a separate license for each location.
The Department must conduct the initial inspection of a body art establishment upon receipt of the application for a license and randomly inspect twenty (20%) percent of all such licensed facilities each year thereafter. Inspections entail health, sterilization, sanitation and safety standards; review of “required” records and training documentation; and “any other area that is required by this act.” Again, the vagueness of this section of the Bill leaves many unanswered questions. For instance, is the Department required to provide notice to the body art establishment of its intention to inspect? What are the “required” records and training documentation? Where are the established standards to evaluate such records? Is this an open doorway for the Department of Health to design tattoo apprenticeship programs? What additional costs will be incurred by operators in an effort to pass inspections?
Another of my concerns regarding revolves around the lack of consideration of the nature of the employment relationship between tattoo and piercing studios and the artists, referred to as practitioners in the Bill. Many artists in the tattooing and piercing industry are independent contractors who contract to provide their services at the company’s various locations. As an independent contractor, an artist is also a “person” pursuant to the definition in this legislation. Accordingly, it would appear that each individual artist who is hired as an independent contractor may also be required to have his or her own license from the Department of Health rather than simply fall under the contracted company’s license.
Additional requirements are placed on practitioners as well. The Bill discusses the duties and responsibilities of practitioners (ie, tattooing and piecing artists) which will be established by the Department and pertain to both practitioners and other persons working in any area of the body art establishment “which may be necessary to prevent the contamination of the body art equipment, supplies or work surfaces with pathogenic organisms.” Practitioners will be required to complete the bloodborne pathogen certification requirements outlined in 29 CFR 1910.1030. Alternatively, the practitioner must provide a notarized statement from a licensed physician that confirms that the practitioner was examined by the physician and a blood test was conducted confirming that he or she is free from all bloodborne diseases including, but not limited to Hepatitis B, or that antibody testing reveals the practitioner is immune to certain highly communicable diseases.
Other requirements set forth in the Bill require that each customer of the practitioner be provided with verbal and written instructions for the care of the tattooed or pierced site of the body which shall advise the customer to consult a physician at the first sign of infection and contain the name, address and telephone number of the body art establishment.
The Department of Health is granted significant – and, to this author, extremely alarming – power under this Bill. A license can be denied, suspended or revoked for several reasons – some of which are extremely vague. The Bill states that the Department can take such action for: (1) submission of false statements on applications, reports, plans or specifications; (2) health, sterilization, sanitation or safety violations under this Bill; (3) operation of a body art establishment “in a manner that threatens public health or safety”; (4) failure to allow the Department to enter the body art establishment during normal business hours for inspection or investigation; or (5) failure to pay the required license fee.
Prior to suspension or revocation of a license, the Department is to provide written notice to the licensee of the facts or conduct which it alleges warrant such action and provide the licensee with the opportunity to demonstrate or achieve compliance. Upon receipt of written notice, the licensee may request an administrative hearing. No further details regarding time frames, etc., are provided by the Bill as written.
However, the foregoing requirements do NOT apply to cases where the Department determines there is an immediate threat to public health and safety. Under this circumstance, the Department may suspend or revoke the license so long as it provides written notice of the violation, specify the manner in which the operator or practitioner failed to comply with the act and require a “corrective action plan” including a reasonable time schedule for completion. If the body art establishment fails to comply with the requirements of the written notice, the Department shall notify the operator by certified mail that the license shall be suspended or revoked within five (5) days of receipt of the written notice unless “action is taken”. What is most concerning about these provisions is that nothing in the Bill provides for the opportunity of a licensee to address such a determination and action by the Department by way of an administrative hearing. Rather, the Department simply has the power to determine “immediate threats” and require whatever actions it determines are “necessary”.
The Bill closes its tattooing and piercing provisions with a section on the prohibition of performing any such work on “minor”. This section only permits such work to be performed in the presence of the minor’s parent or legal guardian after verification of such individual’s proper identity and execution of written consent by the parent or guardian. Verification standards will be established, once again, by the Department of Health. Interestingly, the term “minor” is defined as a person eighteen (18) years of age or younger, whereas most of the laws of Pennsylvania refer to a minor as a person UNDER the age of eighteen (18). The penalty for knowingly tattooing or piercing a minor under this section is a two (2) year license suspension or revocation.
The final provisions of this Bill pertain to the prohibition of tongue splitting by anyone other than a licensed physician or dentist and prohibits administration of anesthetic injections or other medications or prescriptions to any customer. Also, certain professions are excluded from this act including licensed physicians and surgeons who are performing body art services for medical reasons, including permanent cosmetic establishments physically located in their offices, hospitals or clinics, as well as licensed funeral directors.
To this author, this Bill is extremely overreaching and raises many issues for the industry. Granted, the purpose behind the Bill is reasonable and necessary to maintaining the integrity of the profession. Customers need to be protected from “scratchers” and underground studios who care more about the money than the safety of the customer or the quality of the art. However, submitting legitimate and professional studios and artists to the subjective determinations of government officials while requiring unclear and undetermined licensing fees and costs is certainly cause for concern.
I will continue to monitor the progress and implementation of this legislation. In the meantime, I encourage all studios, artists and concerned enthusiasts to contact your state representatives and express your concerns. Without your input, we could see significant restrictions on the future of the tattooing and piercing industries in Pennsylvania. Of course, if you have questions or concerns surrounding this legislation, or other business or industry issues, please feel free to contact me at tbeveridge@princelaw.com.
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