BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1044|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: SB 1044
Author: Nguyen (R), et al.
Amended: 4/20/16
Vote: 21
SENATE BUS, PROF. & ECON. DEV. COMMITTEE: 9-0, 4/18/16
AYES: Hill, Bates, Berryhill, Block, Galgiani, Hernandez,
Jackson, Mendoza, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Barbering and cosmetology
SOURCE: Board of Barbering Cosmetology
DIGEST: This bill directs the Board of Barbering and
Cosmetology (BBC) to clarify in regulations when both the owner
and individual licensee can be fined for the same violation and
authorizes BBC to establish a payment plan for citations that
exceed $500.
ANALYSIS:
Existing law:
1)Provides for the licensure regulation of the practice of
barbering, cosmetology, and electrolysis under the Barbering
and Cosmetology Act (Act) by the BBC.
2)Defines "establishment" as any premises, building, or part of
a building where any activity licensed under the Act is
practiced and sets forth requirements for licensure as an
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establishment by BBC. (BPC §§ 7346-7352)
3)Requires BBC to maintain a program of random and targeted
inspections of establishments to ensure compliance with
applicable laws relating to the public health and safety and
the conduct and operation of establishments. (BPC § 7353)
4)Establishes grounds for disciplinary action that include
failure to comply with the Act, failure to comply with health
and safety standards set forth by BBC, and failure to comply
with the BBC's rules for establishments and other offenses.
(BPC § 7404)
5)Authorizes BBC to assess administrative fines and issue
citations for violations of the Act. (BPC §§ 7406 and 7408)
6)Provides that the holder or holders of an establishment
license or a mobile unit license and the person in charge of
any such establishment or mobile unit are responsible for
implementing and maintaining the BBC health and safety rules
in such establishment or mobile unit individually and jointly
with all persons in or employed by or working in or on the
premises of such establishment or mobile unit. Provides that
all licensed barbers, cosmetologists, estheticians,
manicurists, electrologists, instructors, or apprentices shall
be held individually responsible for implementation and
maintenance of BBC health and safety rules. (Title 16,
California Code of Regulations § 904)
This bill:
1)Requires BBC to determine by regulation when a fine shall be
assessed to both the holder of the establishment license and
the individual licensee for the same violation.
2)Requires BBC to determine by regulation when a fine shall be
assessed to only the holder of the establishment license or to
only an individual licensee for the same violation.
3)Requires BBC, in making the determinations above, to consider
the egregiousness of the violation of the health and safety
regulations and whether the violation is a repeated violating
by an individual licensee within the same establishment.
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Background
The Board of Barbering and Cosmetology is the Sponsor of this
bill. According to the Author, BBC is required by regulation to
hold establishment owners as well as individual licensees
accountable for all health and safety violations found in an
establishment. For example, if an individual is found with a
dirty hair tool, the individual will receive a citation with a
fine and the establishment owner will also receive a citation
and fine. BBC often hears complaints from owners that they are
receiving fines for violations committed by an independent
contractor or a booth renter. Often, the rental contract
between independent contractors or booth renters and
establishment owners have a requirement that the individual pay
any fines that the owner receives if the individual was the
cause of the violation which results in an individual licensee
having to pay a double fine.
The Author states that BBC also utilizes the citation and fine
as the main enforcement tool for licensees. The BBC has an
established administrative fine schedule for all violations
found in an establishment. A maximum of $5,000 is set in
statute for each citation. There are many times that citations
can add up to the maximum amount. A license cannot be renewed
unless all fines have been paid. The BBC will work with
individuals on a case by case basis to try to set up a payment
plan for any outstanding fines, however, the BBC does not have
statutory authority to establish this type of payment plan.
BBC Enforcement. BBC is responsible for licensing and
regulating barbers, cosmetologists, estheticians,
electrologists, manicurists, apprentices, and establishments.
The BBC licenses and regulates over 550,000 licensees, including
over 52,000 establishments. To ensure compliance with the BBC's
health and safety and licensing regulations, random and targeted
inspections of establishments are conducted. Citations with
egregious health and safety violations or unlicensed activity
are forwarded to the Enforcement Program for further
investigation. According to BBC, the most common violations
that result in a citation are related to health and safety.
Anyone issued a citation has the right to appeal any or all of
the violations cited. In 2007, the fine schedule was updated to
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reflect a single fine amount for each violation regardless of
how many times the licensee had been cited for the same
violation. As a result of this, the BBC found that it was
modifying a large number of appealed fine amounts. In 2011, the
BBC reviewed and revised the fine schedule again and returned to
a sliding fine scale. Fines are now assessed according to how
many times the licensee is cited for the same violation within
the last five years. As a result of the most recent revisions
to the fine schedule, the BBC reports that it is seeing a
reduction in the average dollar amount appealed per citation and
an increase in the average citation amount. Between 2012 and
2014, the average fine per citation before an appeal has
decreased from $891 to $729, and the average fine amount per
citation after an appeal decision by the DRC has increased from
$372 to $565.
Booth Renters. The owner(s) of a BBC licensed establishment is
responsible for his/her salon and will be issued a citation for
violations that exist in the salon as well as for each
individual in that salon found to be in violation of the Act. A
BBC licensee who performs beautification services may own his or
her own business or work for someone else at their shop.
Licensees may be directly employed by an establishment or may be
an independent contractor. The industry designation for
independent contractors in BBC licensed establishments is "booth
renter".
"Booth renters" are licensed professionals who may not own an
establishment but rent space from an owner. A booth renter, or
independent contractor, is a practitioner who qualifies as an
independent contractor under California tax law and who is not
under the control and direction of a licensed establishment.
Booth renters or independent contractors pay their own worker's
compensation insurance and taxes, maintain their own business
license, establish their own work schedules and have access to
the establishment at any time. The booth renter is considered a
separate business entity operating within the establishment.
BBC does not differentiate between independent contractors,
booth renters, or employees. The owner of the salon is still
considered responsible for the activities of all of the people
working in the salon. If a BBC inspector finds a violation by an
individual working at the shop, the inspector will issue a
citation to both the individual and the salon. If the
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independent contractor, booth renter, or employee is not present
during the inspection and has violations at his or her station,
the owner of the salon will still be issued a citation for these
violations. In most instances, an establishment owner has some
type of contractual agreement with a booth renter that
acknowledges that in the event an establishment is fined for a
violation of the licensee, the licensee is responsible for
paying the owner's fine.
The barbering and cosmetology industry believes there are issues
of accountability in that establishment owners are being forced
to be accountable for the deficiencies and subsequent violations
of booth renters, and that it should be the individual licensee,
not the owner, who should have to comply with regulations and
deal with enforcement actions. As reported during the prior
sunset review of BBC, establishment owners believe that they
already have many laws and regulations to comply with and that,
if something is cited at the station of a booth renter, the
establishment owner should not be forced to oversee that renter
and potentially receive a citation and fine for that
individual's actions. Owners do not want to be held liable for
the actions of individuals whom in their eyes are independent
contractors.
For several years, the BBC has discussed establishing a "booth
renter's license" which would identify licensees who are
independent contractors, as opposed to those who are employees
of salon owners. The BBC specifies that the stated purpose of a
new license would be to clarify the responsibility of the booth
renter and that of the salon owner, to alleviate confusion for
inspectors in the field as to who is responsible for violations,
to clarify insurance issues and to facilitate collections of
potentially thousands of dollars in tax revenue that is
currently not collected.
However, this effort could potentially be perceived as owners
not wanting to maintain responsibility for individuals operating
at their place of business and it is unclear why a responsible
business owner would potentially want to ignore violations in
their establishment and not require all individuals working
closely with them to obey the law, especially as consumers will
most likely link services to the establishment as well as the
licensee providing services.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified5/11/16)
Board of Barbering and Cosmetology (source)
Professional Beauty Federation of California
OPPOSITION: (Verified5/11/16)
None received
ARGUMENTS IN SUPPORT: The Professional Beauty Federation of
California believe that this bill responds to the industry's
concerns of individual licensees and salon owners paying twice
for the same cited violation.
Prepared by:Sarah Mason / B., P. & E.D. / (916) 651-4104
5/11/16 15:12:48
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