CHAPTER 8

FORMERLY

SENATE BILL NO. 29

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 51, TITLE 24, DELAWARE CODE, RELATING TO THE BOARD OF PERSONAL SERVICES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 51, Title 24 of the Delaware Code by striking Chapter 51 in Its entiety and substituting in lieu thereof a new Chapter 51 which shall read as follows:

"CHAPTER 51. BOARD OF COSMETOLOGY AND BARBERING

§5101. Objectives and Functions

The primary objective of the Board of Cosmetology and Barbering, to which all other objectives and purposes are secondary, is to protect the general public (specifically those persons who are direct recipients of services regulated by this Chapter) from unsafe practices, and from occupational practices which tend to reduce competition or artificially fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency, and to maintain certain standards in the delivery of services to the public. In meeting Its objectives, the Board shall develop standards assuring professional competency; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaints hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners.

§5102. Powers and Duties

The Board of Cosmetology and Barbering shall regulate persons practicing the occupation of barber, and persons practicing the occupation of cosmetologist. The Board shall have all of the rights, powers and duties formerly vested in the Board of Personal Services.

§5103. License to Practice

No person may practice cosmetology and barbering in this State who has not been licensed In accordance with this Chapter. Under such rules and regulations as the Board may adopt, the provisions of this Chapter shall not be construed to prohibit:

(1) Persons who are licensed to practice cosmetology or barbering in any other State, district, or foreign country who, as practicing cosmetologists or barbers, enter this State to consult with a cosmetologist or barber of this State. Such consultation shall be limited to examination and recommendations;

(2) Any student of an accredited school or college of cosmetology or barbering who k receiving practical training under the personal supervision of a licensed cosmetologist or barbering In Delaware;

(3) Any cosmetologist or barber commissioned by any of the Armed Forces of the United States, or by the Public Health Service.

§5104. Board of Cosmetology and Barbering

(a) The Board of Cosmetology and Barbering shall consist of nine members appointed by the Governor, one of whom shall be an instructor; four members who shall be licensed cosmetologists; two members who shall be licensed barbers and three public members. To serve on the Board, public member shall not be nor ever have been a cosmetologist or barber, nor a member of the immediate family of a cosmetologist or barber; shall not have been employed by a cosmetologist or barber; shall not have had a material financial interest in the providing of goods and services to a cosmetologist or barber nor have been engaged in an activity directly related to cosmetology or barbering. Such public member shall be accessible to inquiries, comments and suggestions from the general public.

(b) Each member shall serve for a term of three years, and may succeed himself for one additional term; provided however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment, and the member shall no longer be eligible to participate in Board proceedings unless lawfully appointed.

(c) A member of the Board shall be suspended or removed by the Governor for misfeasance, non-feasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.

(d) No member of the Board of Cosmetology or Barbering, while serving on the Board, shall be o President, Chairman or other official of o professional cosmetology or barbering association.

(e) The provisions set forth for "employees" in §5855 of Title 29 shall apply to all members of the Board, and to all agents appointed by or otherwise employed by the Board.

co Board members shall be reimbursed for all expenses involved in each meeting, excluding travel; and in addition shall receive not more than fifty dollars ($50.00) each meeting attended, but not more than five hundred dollars ($500.00) in any calendar year. After ten meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§5105. Officers; Conduct of Business

(a) In the same month of each year the members shall elect, from among their number, a President, o Secretary and a Treasurer. Each officer shall serve for one year, and shall not succeed himself in the same office.

(b) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year and at such other times as the President deems necessary, or at the request of a majority of Board members.

(c) A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least five members. Any member who fails to attend three consecutive regular business meetings, or who falls to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to hove resigned from office and a replacement shall be appointed.

(d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Business and Occupational Regulation. At any hearing where evidence is presented, such hearing shall be recorded and transcribed by the Division.

§5106. Powers and Duties

(a) The Board of Cosmetology and Barbering shall have authority to:

(1) Formulate rules and regulations, with appropriate notice to those affected, where such notice can reasonably be given. Each rule or regulation shall Implement or clarify o specific section of this chapter;

(2) Designate the application form to be used by all applicants, and to process all applications;

(3) Designate a written examination, prepared by either the notional professional association or by a recognized legitimate national testing service.

(4) Provide for the administration of all examinations, including notice and information to applicants;

(5) Grant licenses to all persons who meet the qualifications for licensure;

(6) Receive complaints from practitioners and from the public concerning practitioners, or concerning practices of the profession; to evaluate such complaints; and to take such action within its powers as the Board deems appropriate;

(7) Determine whether or not a practitioner shall be the subject of o disciplinary hearing, and if so, to conduct such hearing In accordance with this chapter and the provisions of the Administrative Procedures Act;

(8) Where it has been determined after a disciplinary hearing, that penalties or sanctions should he imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed;

(0) Bring proceedings in the courts for the enforcement of this chapter;

(In) Maintain complete records relating to meeting minutes, applications, examinations, rosters, changes and additions to the rules and regulations, complaints, hearings, and such other matters as the Board shall determine.

(b) The Board may require by subpoena the attendance and testimony of witnesses in and production papers, records or other documentary evidence.

§5107. Application Procedure

(a) An applicant who is applying for examination and licensure shall have the following qualifications:

(1) Have met the requirements of 5605, Chapter 6, Title 24, Delaware Code, or the requirements of 5409, Chapter 4, Title 24, Delaware Code.

(2) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board. No application form shall require a picture of the applicant; require information relating to citizenship, place of birth, or length of state residency; nor require personal references.

(b) Where a person who feels the Board refused or rejected his application without justification; has imposed higher or different conditions for him that other applicants or persons now licensed; or has in some other manner contributed to or caused the failure of such person's application, the applicant may appeal to the Superior Court.

(c) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

§5108. Examination of Applicants

The Board shall administer examinations at its own discretion. Where an applicant fails to pass the examination, but has successfully completed and passed certain sections or portions of the examination, the applicant in the next subsequent examination shall be tested only for those portions or sections which he failed. In the event the applicant fails the second time to successfully complete or pass the examination, the Board may require that such applicant again take the complete examination.

§5109. Reciprocity

Where the applicant is already licensed in another State, the Board shall accept the certificate issued by the other State in lieu of all other requirements for licensure provided for in this chapter. Upon receipt of an application for reciprocity, the Board shall contact each board which has previously licensed the applicant, to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved. An application for licensure by reciprocity shall he accompanied by full payment of the reciprocity fee.

§5110. Fees

The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Business and Occupational Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for an activity not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year the Division of Business and Occupational Regulation, or any other state agency acting in its behalf, shall compute for each separate service or activity, the appropriate fee for the coining year. Notwithstanding the provisions of this Section fees shall not be less than the current fees presently in effect.

§5111. Licensure; Renewal of License

(a) Each person who has passed the written examination, who has been admitted to practice in this State by reciprocity, or who has otherwise qualified for a license shall, prior to receiving such license, file for and obtain an occupational license from the Division of Revenue in accordance with Chapter 23 of Title 30. The Board shall forthwith issue a license to each person who has qualified for same under the provisions of this chapter.

(b) Each license shall be renewed biennially, in such manner as is determined by the Division of Business and Occupational Regulation. The Board shall, in its rules and regulations, determine the period of time within which a practitioner may still renew his license, notwithstanding the fact that such practitioner has failed to renew on or before the renewal date; provided however, that such period shall not exceed one year. The Board shall charge for each month or quarter during such "late renewal period" a late fee which, at the end of such "late period," shall be twice the sum of the unpaid renewal fee. At the expiration of the period designated by the Board, the license shall be deemed to be lapsed and not renewable, unless the former licensee re-applies under the same conditions which govern reciprocity; provided however, that the former licensee shall also pay a reinstatement fee in an amount which is three times the amount of the reciprocity fee.

(c) Any licensee may, upon his written request, be placed in an inactive status. The renewal fee of such person shall be pro-rated in accordance with the amount of time such person was inactive. Such person may re-enter practice upon notification to the Board of his intent to do so.

(d) A former licensee who has been penalized for the violation of a provision of this chapter, or whose license has been suspended or revoked, and who subsequently Is permitted to apply for reinstatement shall apply for a new license, successfully complete the examination, and shall pay all appropriate fees before he may be licensed.

§5112. Complaints

(a) Any practitioner or member of the public who has a question or a complaint concerning any aspect of the practice of cosmetology or barbering may, during the regular business hours of a business day, contact the Board or the Division of Business or Occupational Regulation; or voice such question or complaint at a business meeting of the Board.

(b) The Board shall Investigate any complaint, including oral and anonymous complaints; and shall follow through on those informal complaints which, upon investigation, appear to be valid and well-founded. In cases where the complainant Is known to the Board, the Board shall, within one week after receipt of the complaint, notify the complainant as what action (if any) the Board intends to take in the matter. A complete record shall be kept of each complaint, formal or informal; provided however, that the complaints records may be purged after five years.

§5113. Violations; Grounds for Professional Discipline

(a) Practitioners regulated under this Chapter shall be subject to those disciplinary actions set forth in $5114 if, after a hearing, the Board finds:

(1) That the practitioner has employed or knowingly cooperated in fraud or material deception in order to be licensed, or be otherwise authorized to practice cosmetology or barbering;

(2) Illegal, incompetent or negligent conduct in the practice of cosmetology or barbering;

(3) Excessive use or abuse of drugs (Including alcohol, narcotics or chemicals);

(4) That the practitioner has been convicted of a felony or crime involving moral turpitude;

(5) That the practitioner, as a cosmetologist or barber or otherwise In the practice of his profession, knowingly engaged In an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities;

(6) That the practitioner has violated a lawful provision of this Chapter, or any lawful regulation established thereunder.

(b) A practitioner shall be subject to non-disciplinary remedial action if, after a hearing, the Board finds that there is a danger to the public due to

(1) Physical illness or loss of motor skill, Including but not limited to deterioration through the aging process; or

(2) Temporary emotional disorder or mental illness; or

(3) Permanent emotional disorder or mental illness.

(c) If a practitioner's physical or mental capacity to practice safely is at issue in a non-disciplinary remedical proceeding, the Board may order a practitioner to submit to a reasonable physical or mental examination. Failure to comply with a lawful order to submit to a physical or mental examination shall render the practitioner liable to temporary suspension or revocation of license in accordance in accordance with §5114.

(d) Where a practitioner fails to comply with the Board's request that he submit to a examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order.

(e) Subject to the provisions of Subchapter IV, Chapter 101, Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board; and no practitioner's right to practice shall be limited by the Board, until such practitioner has been given notice, and an opportunity to be heard In accordance with the Administrative Procedures Act.

§5114. Remedial Actions and Disciplinary Sanctions

The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in 55113 applies to a practitioner regulated by this Chapter:

(1) Issue a letter of reprimand ;

(2) Censure a practitioner;

(3) Place a practitioner on probationary status, and require the practitioner to:

(I) Report regularly to the Board upon the matters which are the basis on the probation,

(II) Limit all practice and professional activities to those areas prescribed by the Board, and/or

(4) Suspend any practitioner's license; or

(5) Revoke a practitioner's license.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.

(c) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, or during the appeals process; but only in cases where there is a clear and immediate danger to the health and safety of a patient or to the public if the licensee is allowed to continue to practice. Such suspension may be appealed.

(d) Where a license has been suspended due to a disability of the licensee, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety to the public.

(e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§5115. Board Hearings; Procedure

(a) Upon the receipt of a complaint, the Board shall determine what action, If any, it shall take. If the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within three months from the date on which the complaint was received. The Board shall fix the time and place for a full hearing of the matter, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least thirty days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service shall be effected in the same manner as with civil litigation.

(b) MI hearings shall be informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. A copy of the decision shall be mailed immediately to the practitioner. The Board's decision shall become effective on the thirtieth day after the date it is mailed or served on the practitioner, unless there is an appeal by the practitioner to the Superior Court within that time.

(c) Where the practitioner Is In disagreement with the action of the Board, he may appeal the Board's decision to the Superior Court within thirty days of service, or of the postmarked date of the copy of the decision mailed to him. Upon such appeal the Court shall hear the evidence de novo, and the filing of an appeal shall act as a stay of the Board's decision, pending final determlnatorrTat the practitioner's appeal.

§5116. Penalties

(a) Where the Board has determined that a person is practicing cosmetology or barbering within this State without having obtained a license therefor to practice, or that a person previously licensed is unlawfully practicing although his license as been suspended or revoked, the Board shall formally warn such person. If the offense continues, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board.

(b) Where the Board has placed a practitioner on probationary status under certain restrictions or conditions, and the Board has detemined that such restrictions or conditions are being or have been violated by the practitioner, it may, after a hearing on the matter, suspend or revoke the practitioner's license.

(c) Where a person not currently licensed as a cosmetologist or barber is convicted of unlawfully practicing cosmetology or barbering in violation of this Chapter such offender shall, upon the first offense, be fined $50, and shall pay all costs; provided however, that where it is alleged that such violation has resulted in injury to any person, the offender shall be charged and tried under the appllable provisions of Title 11.

(d) Where a person previously convicted of unlawfully practicing cosmetology or barbering is convicted a second or subsequent time of such offense, the fine assessed against such person shall be increased by two hundred and fifty dollars ($250) for each subsequent offense thereafter."

Section 2. The licenses of all persons licensed in Delaware as cosmetologists or barbers on the effective date of this Act shall continue to be valid, and shall not in any way be invalidated or otherwise affected by this Act.

Section 3. Of the initial Board of Cosmetology and Barbering established under this Act, two professional members shall be appointed for a term of three years; two professional members and two public members shall each be appointed for a term of two years; and two professional members and one public member shall be appointed for a term of one year.

Section 4. The provisions of this Act shall become effective thirty days after its enactment into law.

Approved Fetruary 2, 1983.