BILL ANALYSIS Ó
SB 1044
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Rudy Salas, Chair
SB 1044(Nguyen) - As Amended June 13, 2016
SENATE VOTE: 38-0
SUBJECT: Barbering and cosmetology
SUMMARY: Requires the Board of Barbering and Cosmetology (BBC)
to determine through regulations when a fine can be assessed to
an establishment owner and a licensee for the same violation,
and authorizes the BBC to establish a payment plan for citations
that exceed $500.
EXISTING LAW:
1)Establishes the Barbering and Cosmetology Act (Act) and the
BBC to license, regulate, and discipline professional work in
hair, skin, nail care, and electrolysis; and, ensure the
protection of the public is paramount when other interests are
sought to be promoted. (Business and Professions Code (BPC)
Section 7301, et seq.)
2)Defines an "establishment" to mean any premises, building or
part of a building where any licensed activity is practiced.
(BPC Section 7346)
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3)Requires the 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 Section
7553(b))
4)Requires the BBC or its authorized representatives to inspect
establishments to reasonably determine compliance levels and
to identify market conditions that require targeted
inspections. (BPC Section 7353(c))
5)Establishes grounds for disciplinary action including failure
to comply with the provisions of the Act; failure to comply
with health and safety standards as established by the BBC;
and, failure to comply with the BBC's rules for
establishments, among other offenses, as specified. (BPC
Section 7404)
6)Authorizes the BBC to assess administrative fines and issue
citations, as specified, for violations of the Act. (BPC
Section 7406)
7)States that any licensee served with a citation may avoid
payment of the associated administrative fine by presentation
of written proof satisfactory to the BBC or its executive
officer that the violation has been corrected. (BPC Section
7409)
8)States that persons to whom a notice of violation or a
citation is issued or an administrative fine is assessed, may
appeal the citation to a disciplinary review committee by the
BBC, as specified. (BPC Section 7410)
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9)Requires the BBC to establish by regulation a schedule of
administrative fines for violations of the Act, and the
schedule must indicate for each type of violation, whether in
the BBC's discretion, the violation can be corrected. (BPC
Section 7407)
10)States that persons who fail to pay administrative fines that
were not contested or were contested but the appeal has been
adjudicated cannot be issued a license or allowed to renew any
licensees issue to them until all fines are paid in addition
to any application, renewal, or delinquency fees which are
required. (BPC Section 7414)
THIS BILL:
11)Requires the BBC to determine by regulation when a fine is
assessed to both the holder of the establishment license and
the individual licensee for the same violation.
12)Requires the BBC to also determine by regulation when a fine
is assessed to only the holder of the establishment license or
to only an individual licensee for the same violation
13)Requires the BBC to consider when establishing the
regulations the egregiousness of the violation of the health
and safety regulations and whether the violation is a repeated
violation by licensees within the same establishment.
14)Authorizes the BBC to enter into a payment plan for citations
and administrative fines that exceed $500, and requires the
BBC to define by regulation the parameters of the payment plan
which must include, but is not limited to, the terms of the
plan and grounds for cancellation of the plan.
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15)Makes permissive, instead of requires, the BBC to deny a
license or a license renewal if fines are not paid, as
specified.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, this bill will result
in negligible state costs.
COMMENTS:
Purpose. This bill requires the BBC to determine through
regulations when a fine should be assessed to both the
establishment owner and an individual licensee or assessed only
to the establishment owner or to only the individual licensee.
In addition, this bill would allow the BBC to accept a payment
plan for citations. This bill is sponsored by the Board of
Barbering and Cosmetology . According to the author, "[This
bill] will not take away the responsibility of the owner of the
establishment, but will allow the [BBC] to determine when the
fine shall be assessed to both the individual and the owner.
This allows the [BBC] to hold individual licensees to a higher
level of responsibility, by ensuring that the individual who has
attended school and passed the licensing examination is the
first line of consumer protection and therefore responsible for
upholding the health and safety laws of the [BBC]. [This bill]
would allow the [BBC] to work with individuals on a case by case
basis to try and set up a payment plan for any outstanding
fines."
Background. Board of Barbering and Cosmetology. The BBC is
responsible for licensing and regulating barbers,
cosmetologists, estheticians, electrologists, manicurists,
apprentices, and approximately 41,000 establishments.
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Establishment licensees do not need to hold a separate
professional license. In order to obtain an establishment
license, an individual must submit an application to the BBC and
pay the appropriate fee. The application must contain
information about the applicant, whether it is a person, firm,
or corporation that will be operating the establishment, and
specifically prohibits issuing an establishment license if the
individual, or each officer, director, or partner has committed
any acts or crimes, as specified, which are grounds for denial.
The BBC licenses and regulates over 550,000 licensees, including
over 40,000 establishments. The types of establishments that
the BBC regulates, include, but are not limited to, nail salons,
barbers, and hair salons.
BBC Enforcement. Existing law permits the BBC to take
enforcement actions against an establishment for issues mainly
pertaining to health and safety violations. To maintain the
BBC's health and safety requirements, BPC Section 7353(b)
requires the BBC to maintain a program of targeted and random
inspections of establishments. As part of the inspection
program, inspectors will provide the licensee with a copy of an
inspection report as a record of the inspection. The original
inspection report, the photographs taken during the inspection,
and any inspector comments are then forwarded to the BBC's home
office. The Cite and Fine Program will review the material for
accuracy, issue a citation and enter the citation information
into BreEZe, Department of Consumer Affair's licensing and
enforcement system. Citations with egregious health and safety
violations or unlicensed activity are forwarded to the
Enforcement Program for further investigation.
Establishment Owners and Booth Renters. An individual who owns
a BBC licensed establishment is not required to hold a separate
barber or cosmetology license. Establishments can be owned by a
corporation, firm or by an individual. BPC Section 7348
requires an establishment to at all times be in the charge of a
BBC licensee. However, the owner of an establishment is
responsible for the activities of all employees working in the
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establishment. According to information provided by the BBC,
the owner of an establishment is responsible for the
establishment and will be issued a citation for violations that
exist in the establishment in addition to each individual in
violation. Even if an establishment owner has booth renters
and/or independent contractors employed, the owner is
responsible for each licensee.
Licensees working in an establishment can be an independent
contractor or an employee of the establishment. Independent
contractors are commonly referred to as "booth renters." Booth
renters are considered separate business entities operating
within the establishment and are responsible for setting their
own hours of operation, paying their own required insurance, and
maintaining a separate business license.
Because an establishment owner is responsible for the conduct of
all employees (regardless of booth renter or employee status),
if a violation is found by an individual, a citation is issued
to both the individual and the establishment owner. During the
BBC's last sunset review in March of 2015 the issue of booth
renters was raised. It was noted that the barbering and
cosmetology industry has reported to the BBC potential issues of
accountability, in that establishment owners are being forced to
be held 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. It has been
reported that 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 who, in their eyes, are independent
contractors.
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In order to alleviate the duplicative citation issue, one
solution that has been discussed is the establishment of a booth
renters' license which could be seen as a mechanism to clarify
the responsibility of a booth renter and establishment owner.
However, as noted in the staff background paper during the BBC's
sunset review a potential concern with the new license is how
the BBC would administer the inspection process for booth
renters, given that each booth could possibly be regulated as a
separate entity. Additionally, creating this new license could
be perceived as owners not wanting to maintain responsibility
for individuals operating at their place of business.
It is unclear why a responsible business owner would want to
ignore violations in their establishment and not require all
individuals working closely with them to obey the law,
especially because consumers will most likely link services to
the establishment as well as the licensee providing services.
By requiring the BBC to establish through regulation when a fine
should be assessed to an individual and an establishment owner
or to an establishment owner or an individual, this bill seeks
to address the issue of establishment owners being fined along
with booth renters for the same violation.
This bill will authorize the BBC to establish a payment plan for
citations with administrative fines that exceed $500. In 2004,
the BBC was granted authority to increase the maximum amount of
a fine from $2,500 to $5,000. In the BBC's 2014 Sunset Review
Report, it was reported that the health and safety infractions
most often cited are violations of rules regarding the
disinfection and storage of tools, implements, instruments, and
products. The top non-health and safety-related violation is not
properly displaying establishment or individual licenses as
required in Title 16 California Code of Regulations Section 965.
Currently, licensees are not able to renew a license unless
they have paid all fines as required by the BBC. This bill will
revise the current prohibition for licensure renewal if fines
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are not paid, and provide the BBC with discretion in authorizing
a renewal for applicants who may not have all fines or citations
paid as a result of a payment plan as determined by the BBC.
ARGUMENTS IN SUPPORT:
The Board of Barbering and Cosmetology writes in support, "This
bill is a big step in establishing parameters in how the [BBC]
currently issues citations and fines and will also allow the
[BBC] to set up payment plans for high amount citations. This
will ensure that the businesses in California can correct their
violations without being in jeopardy of losing their license due
to unpaid fines."
The Professional Beauty Federation of California writes in
support, "[this bill]?would respond to our concern of individual
licensees and salon owners paying twice for the same cited
violation. When the individual stylist/technician is a booth
renter, they often are contractually obligated to identify the
salon owner for any fine they are asses as a result of a
violation the booth renter makes (meaning the booth renter ends
up paying double the fine.)"
ARGUMENTS IN OPPOSITION:
None on file.
REGISTERED SUPPORT:
Board of Barbering and Cosmetology (sponsor)
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Professional Beauty Federation of California
REGISTERED OPPOSITION:
None on file.
Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301