Justification for Administrative Rule Adoption


JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Barbers
16 TAC Chapter 82, amendments §§82.10, 82.20, 82.22, 82.23, 82.29, 82.40, 82.50, 82.52, 82.54, 82.70 - 82.72, 82.78, 82.80, 82.102, and 82.108; and repeal §82.53

The Texas Commission of Licensing and Regulation (Commission) adopts the amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 82, §§82.10, 82.20, 82.22, 82.23, 82.29, 82.40, 82.50, 82.52, 82.54, 82.70 - 82.72, 82.78, 82.80, 82.102, and 82.108; and the repeal of current §82.53, regarding the Barbers program, without changes to the proposed text as published in the October 6, 2017, issue of the Texas Register (42 TexReg 5315). The rules will not be republished.

The Texas Legislature enacted Senate Bill 1503, Senate Bill 2065, House Bill 2738, House Bill 2739, 85th Legislature, Regular Session (2017). The adopted amendments and repeal include removing the requirement for a shampoo apprentice permit or shampoo specialty certificate; eliminating risk-based inspections; clarifying the definition of barbering to exclude threading; authorizing licensed schools to account for hours on the basis of clock or credit; allowing standards to be established for equivalency and conversion of clock to credit hours and vice versa; removing square footage, chair, and sink requirements for barber schools; and distinguishing between larger and specialty school requirements. The adopted amendments and repeal are necessary to implement the legislative changes.

The adopted amendments to §82.10 corrects a reference.

The adopted amendments to §82.20 adds the word “specialty” to match current statutory language.

The adopted amendments to §82.22 adds a reference regarding specialty shop permits.

The adopted amendments to §82.23 removes specific requirements for barber schools. 

The adopted amendments to §82.29 clarifies the current requirements for an establishment relocation or change of ownership. 

The adopted amendments to §82.40 increases the amount per claim that a student may receive in the event of a school closure.

The adopted amendments to §82.50 removes the reference to risk-based inspections.

The adopted amendments to §82.52 removes risk-based inspections as part of periodic inspections.

The adopted repeal of §82.53 removes risk-based inspections and the classifications.

The adopted amendments to §82.54 allows individuals a full ten days to complete the necessary modification after an inspection.

The adopted amendments to §82.70 corrects language to make it consistent throughout the chapter.

The adopted amendments to §82.71 remove shampoo permit requirements, make language consistent, and correct a reference. 

The adopted amendments to §82.72 remove shampoo requirements and outdated language and establish equivalency and conversion standards between credit and clock hours.

The adopted amendments to §82.78 clarifies language and updates a reference.

The adopted amendments to §82.80 removes fees relating to risk-based inspections and renumbers the section accordingly.

The adopted amendments to §82.102 streamlines language for clarity and quick reference.

The adopted amendments to §82.108 makes an editorial change.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 6, 2017, issue of the Texas Register (42 TexReg 5315). The deadline for public comments was November 6, 2017. The Department received sixteen comments during the 30-day public comment period. The public comments received are summarized below.

Comment--Twelve commenters would like to see the restriction removed from rule that prevents a cosmetology school from operating on the same premises as a barber school.

Department Response--This comment does not address any current proposed rule. The purpose of the proposed rules is to implement changes as a result of legislation passed during the 85th Texas Legislative Session. These comments have been forwarded to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter would like to know how to obtain a license in Texas.

Department Response--This comment does not address any current proposed rule. The purpose of the proposed rules is to implement changes as a result of legislation passed during the 85th Texas Legislative Session. This comment has been forwarded to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter raised several issues regarding the Barber Program. First, the commenter states that the Department lacks follow-up with barber school students. The commenter believes that there should always be a mandate over the number of sinks within an establishment and consumer protection should be the sole purpose of governance. The commenter raises general concerns about the need for better sanitary regulations and Department follow-up. The commenter believes that there needs to be mandates on braiding and does not agree with the Commission choosing to deregulate or lift regulations due to lack of enforcement. The commenter believes that proposed amendments in §§82.23, 82.52, 82.54 82.71, 82.72, and 82.80 need to be reconsidered because the removal of these rules will result in more lawsuits. 

Department Response--The purpose of the proposed rules is to implement changes as a result of legislation passed during the 85th Texas Legislative Session. The commenter’s remarks regarding Department processes and “follow up” with students may be addressed with the Department through our current complaint process.  These comments have been forwarded to the correct division for review. The Department is the primary state agency responsible for the oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to the department by the legislature. During the 85th Texas Legislative Session, the legislature passed Senate Bill 2065 and House Bill 2739, removing the Commission’s ability to establish building and facility standards that are not related to health and safety and removes square footage, chair, and sink requirements. The legislature also chose to deregulate hair braiding during the 84th Texas Legislative Session (House Bill 2717). Furthermore, the proposed rule changes to §§82.23, 82.52, 82.71, 82.72, and 82.80 are a result of legislative measure passed during the 85th Legislative Session. The proposed change to §82.54 provides more flexibility to the owner and department to ensure corrective modifications are made following an inspection. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter asks if any changes were made relating to enforcement provisions for obtaining a barber license if the applicant has a felony charge.

Department Response--This comment does not address any current proposed rule. No changes have been made relating to enforcement provisions. However, existing Chapter 51, Section 51.4012 and Chapter 53, Subchapter D, of the Texas Occupations Code, allow a person to request a criminal history evaluation letter from the Department, prior to actually applying for a license. The Department did not make any changes to the rules in response to this comment.

Comment--One commenter would like to know what the new square footage requirements will be for opening a school.  

Department Response--Senate Bill 2065 and House Bill 2739 passed during the 85th Legislative Session removing the Commission’s ability to establish building and facility standards that are not related to health and safety and removes square footage, chair, and sink requirements. The Department is in the process of developing procedures to implement all changes as a result of Senate Bill 2065 and HB2739.  This comment has been forwarded to the appropriate division for review. The Department did not make any changes to the rules in response to this comment.

The Advisory Board on Barbering (Board) met on November 13, 2017, to discuss the proposed rules and the public comments received. The Board recommended adopting the rules without changes.

At its meeting on December 15, 2017, the Commission adopted the rules without changes.

The amendments are adopted under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51, 1601, and 1603. No other statutes, articles, or codes are affected by the adoption.

§82.10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Occupations Code, Chapters 1601 and 1603.

(2) Barber Establishment--A barbershop, mini-barbershop, specialty shop, dual shop, mini-dual shop, mobile shop, or school that is subject to regulation under the Act.

(3) Barber Instructor--A person authorized by the department to perform or offer instruction in any act or practice of barbering under Texas Occupations Code §1601.002.

(4) Barber School--An entity that holds a permit issued under this chapter to teach the practice of barbering and that may be privately or publicly funded. The term includes a barber college.

(5) Barber Technician--A person who holds a specialty license and who is authorized to practice the services defined in Texas Occupations Code §1601.002(1)(C), (D), (F), and (G).

(6) Barber Technician/Manicurist--A person who holds a specialty license and who is authorized to practice the services defined in Texas Occupations Code §1601.002(1)(C) - (G).

(7) Barber Technician/Hair Weaver--A person who holds a specialty license and who is authorized to practice the services defined in Texas Occupations Code §1601.002(1)(C), (D), (G) and (H).

(8) Beard--The beard extends from below the line of demarcation and includes all facial hair regardless of texture.

(9) Board--The Advisory Board on Barbering.

(10) Booth Rental Permit--A permit issued or renewed to an applicant at the same time the applicant is issued one of the following license types: barber, barber instructor, specialty instructor, barber technician, manicurist, barber technician/manicurist, barber technician/hair weaver, or hair weaver; which allows the holder to lease space on the premises of a barber shop, specialty shop, mini-barbershop, dual shop, or mini-dual shop to engage in the practice of barbering as an independent contractor.

(11) Class A Barber--A person authorized by the department to perform any act or practice of barbering under Texas Occupations Code §1601.002.

(12) Commission--The Texas Commission of Licensing and Regulation.

(13) Common Area--An area within a barbering establishment that contains equipment and facilities available for use by all persons who practice barbering on the premises under a license, certificate, or permit issued under this chapter.

(14) Department--The Texas Department of Licensing and Regulation.

(15) Distance Education--A formal instructional process in which the student and teacher are separated by physical distance and a variety of communication technologies are used to deliver instruction in theory to the student. Courses taught by distance education do not satisfy the requirements of the practical portion of the course curriculum.

(16) Dual Shop--A shop owned, operated, or managed by a person holding a dual barber and beauty shop license under Texas Occupations Code, Chapter 1603.

(17) Guest Presenter--A person who possesses subject matter knowledge in a specific curriculum topic and who has the teaching ability necessary to impart the information to students. Instruction is limited to the presenter's area of expertise and a licensed instructor must be present during the classroom sessions in order for students to earn hours.

(18) Hair Relating to Haircutting--The hair extending from the scalp of the head is recognized as the hair trimmed, shaped or cut in the process of hair cutting.

(19) Hair weaver--A person who holds a Hair Weaving Specialty Certificate of Registration and who may perform only the practice of barbering as defined in Texas Occupations Code, §1601.002(1)(H).

(20) License--A license, permit, certificate, or registration issued under the authority of the Act.

(21) License by reciprocity--A process that permits a barber license holder from another jurisdiction or foreign country to obtain a Texas barber license without repeating barber education or examination license requirements.

(22) Line of Demarcation between "the hair" and "the beard"--The demarcation boundary between scalp hair ("the hair") and facial hair ("the beard") is a horizontal line drawn from the bottom of the ear.

(23) Manicurist--A person who holds a specialty license and who is authorized to practice the services defined in Texas Occupations Code §1601.002(1)(E) and (F).

(24) Mini-Barbershop--A barber establishment in which a person practices barbering under a license, certificate, or permit issued under this chapter and which consists of a room or suite of rooms that is one of a number of connected establishments in a single premises that open onto a common hallway or common area.

(25) Mini-Dual Shop--A shop owned, operated, or managed by a person holding a mini-barber and mini-beauty shop license under Texas Occupations Code §1603.207.

(26) Mini-Barbershop Permittee--A person or entity that holds a license for a mini-barbershop or mini-dual shop. The mini-barbershop permittee shall be responsible for rules under Texas Occupations Code, Chapters 1601, 1602, and 1603 and 16 TAC Chapters 82 and 83 for its mini-barbershop or mini-dual shop.

(27) Mobile Shop--A barbershop, specialty shop, or dual shop that is operated in a self-contained, self-supporting, enclosed mobile unit.

(28) Provisional license--A license that allows a person to practice barbering in Texas pending the department's approval or denial of that person's application for licensure by reciprocity.

(29) Self-Contained--Containing within itself all that is necessary to be able to operate without connecting to outside utilities such as water and electricity.

(30) Sideburn--Part of a haircut or style that is a continuation of the natural scalp hair growth, does not extend below the line of demarcation, and is not connected to any other bearded area on the face.

(31) Special Event--Includes weddings, quinceaneras, pageants, proms, debutante balls, birthday parties, religious and cultural ceremonies, and on-stage performances.

(32) Specialty Instructor--A person authorized by the department to perform or offer instruction in an act or practice of barbering limited to Texas Occupations Code §1601.002(1)(C) - (H).

(33) Specialty Shop--A barber establishment in which only the practice of barbering as defined in Texas Occupations Code §1601.002(1)(E), (F), or (H) is performed.

(34) Student Permit--A permit issued by the department to a student enrolled in barber school which states the student's name and the name of the school. A person holding an active student permit may shampoo and condition a person's hair in a facility licensed under Texas Occupations Code, Chapters 1601 and 1603.

(35) Weaving--The process of attaching, by any method, commercial hair (hair pieces, hair extensions) to a client's hair and/or scalp. Weaving is also known as hair integration or hair intensification.

§82.20. License Requirements--Individuals.

(a) To be eligible for a Class A Barber Certificate, Barber Instructor License, Barber Technician License, Manicurist License, Barber Technician/Manicurist License, Barber Technician/Hair Weaving License or Hair Weaving Specialty Certificate of Registration, an applicant must:

(1) submit the completed application on a department-approved form;

(2) pass the applicable examination;

(3) pay the fee required under §82.80; and

(4) meet other applicable requirements of the Act, this section, and the applicable curriculum set forth in §82.120.

(b) To be eligible for a Student Permit, an applicant must:

(1) submit the completed application on a department-approved form;

(2) pay the fee required under §82.80; and

(3) meet other applicable requirements of the Act, this section and the applicable curriculum set forth in §82.120.

(c) Class A Barber Certificate--To be eligible for a Class A barber certificate, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.253.

(d) Barber Instructor License To be eligible for a Barber Instructor License, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.254.

(e) Barber Technician License--To be eligible for a Barber Technician License, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.256.

(f) Manicurist License--To be eligible for a Manicurist license, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.257.

(g) Hair Weaving Specialty Certificate of Registration--To be eligible for a Hair Weaving Specialty Certificate of Registration, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.258.

(h) Student Permit--To be eligible for a Student permit, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.260.

(i) Barber Technician/Manicurist Specialty License--To be eligible for a Barber Technician/Manicurist Specialty License, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.262.

(j) Barber Technician/Hair Weaving Specialty License--To be eligible for a Barber Technician/Hair Weaving Specialty License, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.263.

(k) To be eligible for a Specialty Instructor License as a Manicurist Instructor, Barber Technician Instructor, Barber Technician/Manicurist Instructor, Barber Technician/Hair Weaving Instructor, or Hair Weaving Instructor, an applicant must:

(1) submit the completed application on a department-approved form;

(2) pay the fee required under §82.80;

(3) be at least 18 years of age;

(4) have a high school diploma or high school equivalency certificate;

(5) hold a current specialty license in the specialty or specialties in which the applicant is seeking licensure; and

(A) have completed a course consisting of 750 hours of instruction in barber courses and methods of teaching in a barber school; or

(B) have at least one year of licensed work experience in each of the specialties in which the applicant is seeking licensure; and

(i) have completed 500 hours of instruction in barber courses and methods of teaching in a barber school, or

(ii) have completed 15 semester hours in education courses from an accredited college or university within the 10 years preceding the date of the application; or

(iii) have obtained a degree in education from an accredited college or university; and

(6) pass a written and practical exam required under §82.21.

§82.22.           Permit Requirements--Barbershops, Specialty Shops, Dual Shops, Mini-Barbershops, Mini-Dual Shops, Mobile Shops, and Booth Rental.

(a) To be eligible for a Barbershop, Specialty Shop Permit, a Dual Shop or Mobile Shop License, Mini-Barbershop or Mini-Dual Shop Permit, or a Booth Rental Permit, an applicant must:

(1) submit the completed application on a department approved form;

(2) pay the fee required under §82.80; and

(3) meet other applicable requirements of the Act and this chapter.

(b) Barbershop Permit--To be eligible for a barbershop permit, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.303.

(c) Specialty Shop Permit--To be eligible for a Specialty Shop Permit, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.304 and §1601.305. The categories of Specialty Shop Permits issued by the department are: manicurist and hair weaving.

(d) Dual Shop License--To be eligible for a Dual Shop License, an applicant must comply with the requirements of the Act, this chapter, Texas Occupations Code, Chapter 1602, and 16 TAC Chapter 83 for obtaining a beauty salon license and a barbershop permit.

(e) Mini-Barbershop Permit--To be eligible for a Mini-Barbershop Permit, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.303 and §1603.207.

(f) Mini-Dual Shop Permit--To be eligible for a Mini-Dual Shop Permit, an applicant must comply with the requirements of the Act, this chapter, Texas Occupations Code, Chapter 1602, and 16 TAC Chapter 83 for obtaining a beauty salon license and a barbershop permit.

(g) Mobile Shop License--To be eligible for a Mobile Shop License, an applicant must:

(1) provide a permanent physical address from which the mobile unit is dispatched and to which the mobile unit is returned when not in use;

(2) provide a permanent mailing address where correspondence from the department may be received; and

(3) verify that the mobile shop complies with the requirements of the Act and this chapter.

(h) Booth Rental Permit--To be eligible for a booth rental permit, an applicant must hold a valid

department-issued Class A barber certificate, barber technician license, barber

technician/manicurist license, barber technician/hair weaving license, barber instructor license,

specialty instructor license, manicurist license, or hair weaving specialty certificate of registration

and meet the requirements of this section.

§82.23. Permit Requirements--Barber Schools.

(a) To be eligible for a Barber School Permit, an applicant must:

(1) submit the completed application on a department-approved form;

(2) pay the fee required under §82.80;

(3) satisfy the facility and equipment requirements of Texas Occupations Code §1601.353; and

(4) meet other applicable requirements of the Act and this chapter.

(b) In addition to the eligibility requirements of subsection (a), a private barber school must also pay any required fee under §82.40 and provide adequate proof of financial responsibility.

(c) A school must be inspected and approved by the department prior to the operation of the school.

(d) Barber schools that offer instruction to persons seeking a certificate, license, or permit under this chapter must have and maintain at a minimum the following:

(1) a building of permanent construction that must include classroom and practical areas covered in a hard-surface floor covering of tile or other suitable material;

(2) access to permanent restrooms and adequate drinking fountain facilities; and

(3) adequate space, equipment, lighting, and instructional materials to provide quality classroom training to the number of students enrolled

(e) Barber schools must comply with all health and safety standards established by this chapter.

 

§82.29. Establishment Relocation, Change of Ownership, Owner Death or Incompetency.

(a) Under the Act, a license is not transferable.

(b) If a barber establishment relocates, the licensee must apply for a new barber establishment

license and verify that the new establishment meets the requirements of the Act and this chapter.

Additionally, a relocated school must be inspected prior to operation under the Act. The

requirements of this subsection do not apply to mobile shops.

(c) If an establishment changes ownership, the new owner must apply for a license within 30 days after the change of ownership. Additionally, a school must be inspected but may continue to operate prior to inspection.  A change of ownership includes the following:

(1) For a sole proprietorship, the licensee no longer owns the establishment.

(2) For a partnership or limited partnership, the partnership is dissolved.

(3) For a corporation or limited liability company, if sold to another person or entity. A change of ownership does not include corporate officer or stockholder restructuring.

(4) The death or legal incompetency of the owner.

§82.40. Barber School Tuition Protection Account.

(a) Pursuant to §1601.3571 of the Act, the Private Barber School Tuition Protection Account is created to refund unused tuition if a barber school ceases operation before its course of instruction is complete.

(b) In each year in which the balance of the account is less than $25,000 the department will determine a fee that shall be paid by all permitted barber schools to the account.

(c) The necessity for assessing the fee will be determined by the department when it conducts its annual account balance review prior to December 31st. The fee that is assessed by the department shall be in effect for a period of 12 months.

(d) The fee shall be paid by each permitted barber school, upon annual renewal of the license during the 12-month period and shall be paid in addition to the renewal fee. The renewal notice sent by the department will reflect the fee due to the account.

(e) In addition to any other fees, all new schools applying for a barber school permit shall pay the

prescribed fee to the account before a permit will be issued.

(f) The total payment of a claim from the account may not exceed $2,500.  The total amount of claims paid against a single closed school may not exceed $5,000.

(g) The executive director may authorize payment to a student from the account, if:

(1) the student makes a claim for payment on a form approved by the executive director;

(2) a closed barber school has failed to refund unused tuition to the student within 30 days after the date the student became eligible for the refund;

(3) the executive director determines after investigation that the student is owed the refund; and

(4) the student assigns to the department all rights of the student against the barber school to the extent of the amount paid to the student from the account.

(h) The department shall pay claims on a pro rata basis from appropriated money available in the account if:

(1) the account contains insufficient assets to pay all claims;

(2) insufficient money has been appropriated to the department from the account to pay all claims; or

(3) the total amount of claims against a single closed school exceeds the amount specified in subsection (f).

(i) The department shall notify a closed barber school of any claim made against the closed school under this section. Before the executive director may authorize any payment from the account, the school shall have 20 days from the date of notice of the claim to dispute the claim and present evidence to the executive director in opposition to the claim.

(j) If payment is made from the account on a claim against a closed barber school:

(1) the school shall reimburse the account immediately or agree in writing to reimburse the account, on a schedule to be determined by the executive director;

(2) the school shall immediately pay the student any additional amount due to the student under the Act or agree in writing to pay the student on a schedule to be determined by the executive director;

(3) payments made by a school to the account or to a student under this subsection include interest accruing at the rate of eight percent a year beginning on the date the executive director pays the claim;

(4) the department shall be subrogated to all rights of the student against the barber school to the extent of the amount paid to the student; and

(5) the department may assess administrative penalties or sanctions against the school and may

deny an application for a license, certificate, or permit or an application for renewal of a license,

certificate, or permit filed by the holder of the barber school permit.

§82.50. Inspections--General.  

(a) Barber establishments shall be inspected periodically or as a result of a complaint.  These inspections will be performed to determine compliance with the requirements of the Act and this chapter, particularly those requirements relating to public safety, licensing, and sanitation.  In addition, the department will make information available to barber establishment owners and managers on best practices for risk-reduction techniques.

(b) Inspections shall be performed during the normal operating hours of the barber establishments. Except for initial inspections of barber schools, the department may conduct inspections under the Act and this chapter without advance notice.

(c) The department inspector will contact the barber establishment owner, manager, or their representative upon arrival at the barber establishment, and before proceeding with the inspection.

(d) The barber establishment owner, manager, or their representative shall cooperate with the

inspector in the performance of the inspection.

§82.52. Periodic Inspections.  

(a) Each barbershop, specialty shop, dual shop, mini-barbershop, and mini-dual shop shall be inspected at least once every two years. Each barber school shall be inspected at least twice per year.

(b) The barbershop, specialty shop, dual shop, mini-barbershop, or mini-dual shop owner, manager, or their representative must, upon request, make available to the inspector the list required by §82.71(c) of all individuals who work in the shop.

(c) Upon completion of the inspection, the owner shall be advised in writing of the results. The inspection report will indicate whether the inspection was approved or not approved, and will describe any violations identified during the inspection.

(d) For inspections that are not approved, the inspection report will identify violations that must

be corrected by the owner. The report will also indicate the corrective modifications required to

address the violations, in accordance with §82.54. Additionally, the department may assess

administrative penalties and/or administrative sanctions for violations, in accordance with §82.90.

(e) Based on the results of the periodic inspection, a barber establishment found out of compliance may be reinspected.

§82.54. Corrective Modifications Following Inspection.  

(a) When corrective modifications to achieve compliance are required:

(1) the department shall provide the owner a list of required corrective modification(s);

(2) within 10 calendar days after receiving the list of required corrective modifications, the owner shall complete all corrective modifications and provide verification, in a manner prescribed by the department, of the corrective modifications, within 30 days of completion; and

(3) the department may grant an extension of time, consistent with established procedures, if satisfactory evidence is presented showing that the time period specified is inadequate to perform the necessary corrections.

(b) When corrective modifications to achieve compliance involve violations of sanitation rules or violations relating to unlicensed practice, those violations may be referred to the department's enforcement division for further action. The barber establishment will be contacted by the department to arrange final resolution of these violations. Additionally, the department may assess administrative penalties and/or administrative sanctions for violations or for failure to complete corrective modifications timely or provide written verification to the department timely, in accordance with §82.90.

§82.70. Responsibilities of Individuals.

(a) For purposes of this section, "licensed facility" means the premises of a place of business that holds a license, certificate, or permit under Texas Occupations Code, Chapters 1601, 1602 and 1603.

(b) A licensee is restricted to working in a licensed facility but may perform a service within the scope of the license, at a location other than a licensed facility for a customer who:

(1) is unable to receive the services at a licensed facility because of illness or physical or mental incapacitation; or

(2) will receive the services in preparation for and at the location of a special event; and

(3) makes the appointment for services through a licensed facility.

(c) Only a permitted barber school, barbershop, mini-barbershop, specialty shop, dual shop, mini-dual shop, mobile shop, or a licensed barber may advertise as a "Barber."

(d) License holders, including Class A barbers, barber instructors, barber technicians, barber technician/manicurists, barber technician/hair weavers, hair weavers, manicurists, and specialty instructors are responsible for compliance with the health and safety standards of this chapter.

(e) Licensees shall wear clean top and bottom outer garments and footwear while performing services authorized under the Act. Outer garments include tee shirts, blouses, sweaters, dresses, smocks, pants, jeans, shorts, and other similar clothing and does not include lingerie or see-through fabric.

(f) Licensees shall notify the department in writing of any name change within thirty days of the

change.

(g) Licensees shall maintain a current mailing address on file with the department and must notify the department within thirty days following any change of mailing address.

(h) Barbers, manicurists, barber instructors, specialty instructors, barber technicians, barber

technician/manicurists, barber technician/hair weavers, or hair weavers who lease space on the

premises of a barbershop, dual shop, or specialty shop to engage in the practice of barbering as an

independent contractor must hold a booth rental permit.

           

§82.71. Responsibilities of Barbershops, Specialty Shops, Dual Shops, Mini-Barbershops, and Mini-Dual Shops.

(a) The owner of a barbershop, dual shop, specialty shop, mini-barbershop, or mini-dual shop and the shop manager in whose name the shop permit is jointly issued, if different from the owner, shall both be responsible individually and jointly for ensuring that all persons who work in a shop are properly licensed at all times. Individuals who do not hold a current license and /or permit required by the department shall not be allowed to engage in barbering. Shop owners and shop managers commit an offense in violation of department rules if an individual with an expired license or permit or no license or no permit engages in barbering in a shop.

(b) Shop owners and/or shop managers shall verify that all employees and independent contractors have current licenses and permits, as applicable.

(c) The shop owner and/or shop manager shall maintain a current list of all individuals who work in a shop at the time of inspection including employees, independent contractors, and mini-barbershop and mini-dual shop permittees who engage in barbering. The list must be made available to department representatives upon request and must contain the following information:

(1) name of every person working in the shop including their license type, number, and license expiration date;

(2) whether the person is an employee or an independent contractor who engages in barbering; and

(3) license number and license expiration date of each mini-barbershop and mini-dual shop.

(d) The mini-barbershop and mini-dual permittee must maintain a current list of all persons who work in a shop at the time of the inspection, including employees and independent contractors who engage in barbering, and which must include the name of each person working in the mini-barbershop or mini-dual shop, along with their license type number and expiration date. The list must be made available to department representatives upon request.

(e) Each barbershop, dual shop, mini-barbershop and mini-dual shop may display a barber pole. This pole shall be the traditional red, white with the optional blue.

(f) In addition, barbershops shall display on the exterior of the building or premises a sign containing the words "Barber Shop" or "Barber Salon" or any phrase containing the word "Barber".

(g) Mini-barbershops must display on the exterior of the mini-barbershop premises a sign containing the words "Barber Shop" or "Barber Salon" or any phrase containing the word "Barber".

(h) Food or drink must be disposed of in a closed container and the shop shall be separated by a solid wall and have a separate entrance if located in the same building with a restaurant or food preparation area. This rule will not apply to a licensed barbershop or specialty shop in a department store when the sale of food and drink is not immediately adjacent to the shop.

(i) A shop shall provide for the use of individuals who work in the shop at least one sink, wash basin, or hand sanitizer for every three chairs or stations.

(j) Only a permitted barber school, barbershop, mini-barbershop, dual shop, mini-dual shop, mobile shop or specialty shop or a licensed barber may advertise as a "Barber."

(k) A shop is responsible for maintaining all common areas and for compliance with the health and safety standards of this chapter.

(l) Alterations to the shop's floor plan must be in compliance with the requirements of the Act and this chapter.

(m) A barber establishment shall display in the establishment, in a conspicuous place clearly visible to the public, a copy of the establishment's most recent inspection report issued by the department.

(n) Shops may establish rules of operation and conduct, which may include rules relating to clothing which do not conflict with this chapter.

(o) Shops shall notify the department in writing of any name change of the shop within thirty days

of the change.

(p) Shops shall maintain a current mailing address on file with the department and must notify the department within thirty days following any change of mailing address.

(q) Hair weaving specialty shops shall provide the following equipment for each licensee present and providing services:

(1) one work station;

(2) one styling chair;

(3) a sufficient amount of shampoo bowls for licensees providing hair weaving services; and

(4) one chair dryer/handheld dryer for each three licensees providing hair weaving services.

(r) Manicure specialty shops shall provide the following equipment for each licensee present and providing services;

(1) one manicure table with light;

(2) one manicure stool; and

(3) one professional client chair for each manicure station.

(s) Dual shops shall:

(1) comply with all requirements of the Act and this chapter applicable to barbershops;

(2) comply with all requirements of Texas Occupations Code, Chapter 1602 and 16 TAC Chapter 83 applicable to beauty salons; and

(3) if the shop does not currently have employed or have a contract with at least one licensed barber (or cosmetologist) the owner must immediately display a prominent sign at the entrance and exit of the shop indicating that no barber (or cosmetologist) is available; and:

(4) if the shop has neither employed nor contracted with at least one licensed barber (or cosmetologist) for a period of 45 days or more the owner shall;

(A) not place any new advertisement or display any sign or symbol indicating that the shop offers barbering (or cosmetology) services; and

(B) remove or obscure any existing sign or symbol indicating that the shop offers barbering (or cosmetology) services.

(t) Mini-barbershops must comply with all requirements of the Act and this chapter applicable to mini-barbershops and Texas Occupations Code §1603.207.

(u) Mini-dual shops must:

(1) comply with all requirements of the Act and this chapter applicable to barbershops; and

(2) comply with all requirements of Texas Occupations Code, Chapter 1602, and 16 TAC Chapter 83 applicable to beauty shops; and

(3) comply with all the requirements for dual shops listed under subsection (s).

(v) A person holding a barber shop, mini-barbershop, specialty shop, dual shop, mini-dual shop, or mobile shop license may employ a person who is not otherwise licensed by the department to shampoo or condition a person’s hair.

§82.72. Responsibilities of Barber Schools.

(a) If a barber school changes ownership, the new owner must apply for a new school permit, including the new permit fee, ten days prior to the change of ownership.

(b) A new permit fee shall be required from a barber school that has changed ownership.

(c) A barber school must have an appropriate number of chairs for the number of students enrolled.

(d) The barber school must issue within seven days of enrollment each student his or her own textbook or books which shall contain all subjects referred to in Texas Occupations Code §1601.558. The department must approve each textbook or books before it may be used in the barber school curriculum.

(e) Within 30 days of enrollment, a barber school shall furnish to or ensure that each student is equipped with his or her own personal tools which must include the following:

(1) one professional electric clipper of modern design;

(2) one neck duster;

(3) one barber shears;

(4) one thinning shears;

(5) one razor equipped with disposable blades;

(6) three barber combs;

(7) one styptic powder or liquid styptic;

(8) one tool kit (carrying kit);

(9) one hair styling brush;

(10) one neck clip;

(11) one can clipper oil;

(12) one hand held hair dryer; and

(13) one T-edger or outliner.

(f) No student may take instruction or accrue hours for practical work unless he or she is equipped with the tools required in subsection (e).

(g) Each barber school shall have:

 (1) for each student in attendance on the practical floor, enrolled in a manicurist course outlined in §82.120, one complete manicure table, one complete set of manicuring implements for plain and sculptured nails, and one textbook with complete instructions;

(2) an adequate supply of permanent wave rods, and optional hair styling rollers;

(3) a minimum of two canvas-type wig blocks;

(4) two mannequins, one long-haired and one short-haired;

(5) a minimum of one wig, one hairpiece, and hair extensions for weaving;

(6) clock;

(7) bulletin board;

(8) chalk board or dry erase board;

(9) one hooded hair dryer;

(10) fire extinguisher with current inspection report;

(11) instructor's desk in classroom; and

(12) if providing manicure or pedicure nail services, an autoclave, dry heat sterilizer or ultraviolet sanitizer.

(h) A student instructor may instruct theory only if assisted by a person holding a barber instructor's license.

(i) A barber school shall submit each application for student permit in a manner prescribed by the department.

(j) Students must have a permit to attend barber school and are authorized to only practice barbering in that school.

(k) The school must attach a current student photograph to the school's portion of the permit and to the student's portion of the permit. No student permit is valid unless these photographs are attached.

(l) A barber school shall maintain one album displaying the school's portion of student permits, including affixed picture, of all enrolled students. The permits shall be in alphabetical order. No student may accrue hours for practical work or theory unless the student's permit is displayed in accordance with this subsection.

(m) Each barber school approved by the department shall include in its instruction the curricula approved by the department.

(n) No business other than the teaching and practicing of barbering can be operated on the premises of a barber school, with the exception of vending machines or retail products directly relating to hair care.

(o) A barber school offering distance education must:

(1) obtain department approval before offering a course;

(2) provide students with the educational materials necessary to fulfill course requirements; and

(3) comply with the curriculum requirements set forth in §82.120 by limiting distance education to the maximum number of theory hours designated for each course type.

(p) Only a permitted barber school, barbershop, mini-barbershop, dual shop, mini-dual shop, mobile shop, or manicurist specialty shop or a licensed barber may advertise as a "Barber."

(q) Schools may establish rules of operation and conduct, which may include rules relating to student clothing, that do not conflict with this chapter.

(r) A student enrolled in a barber school must wear a clean uniform or smock during school hours.

(s) Barber schools are responsible for compliance with the health and safety standards of this chapter.

(t) Alterations to the school's floor plan must be in compliance with the requirements of the Act and this chapter.

(u) Barber schools shall notify the department in writing of any name change of the school within thirty days of the change.

 

(v) Barber schools shall maintain a current mailing address on file with the department and must notify the department not later than thirty days following any change of mailing address.

(w) At least one time per month, barber schools shall submit to the department an electronic record of each student's accrued hours, in a manner and format prescribed by the department. Delayed data submission(s) are permitted only upon department approval, and the department shall determine the period of time for which a school may delay the electronic submission of data on a case by case basis. Upon department approval, a school may submit data required under this subsection in an alternate manner and format as determined by the department, if the school demonstrates that the requirements of this subsection would cause a substantial hardship to the school.           

(x) Schools changing from clock hours to credit hours or credit hours to clock hours must apply with the department for approval, on a department approved form, prior to making any changes. Successful completion of 1 credit hour is equal to 37.5 clock hours. This equivalency will be used for conversion between clock hours to credit hour or credit hour to clock hours and the department must periodically assess this equivalency conversion to ensure it is an acceptable industry standard.

(y) A school shall maintain and have available for department and/or student inspection the monthly progress report required by Texas Occupations Code, §1601.561(a), documenting the daily attendance record of each student and number of credit hours earned. The school shall maintain the monthly progress report throughout the period of the student's enrollment and for 48 months after the student completes the curriculum, withdraws, or is terminated.

(z) A barber establishment shall display in the establishment, in a conspicuous place clearly visible to the public, a copy of the establishment's most recent inspection report issued by the department.

(aa) A barber school must have at least one instructor for every 25 students on the school's premises.

(bb) A barber school must have at least one instructor for every three student instructors on the school's premises. A student instructor shall concentrate on developing teaching skills and may not be booked with customers.

(cc) A barber school must ensure that guest presenters possess the necessary knowledge and teaching ability to present a curriculum topic and that a licensed instructor is present during the guest presenter's classroom instruction.

(dd) A private barber school or post-secondary barber school may provide barber instruction to public high school students by contracting with the school district and complying with Texas Education Agency law and rules. A public high school student receiving instruction under such contract is considered to be a public high school student enrolled in a public school barber program for purposes of the Act and department rules.

§82.78. Responsibilities of Mobile Shops. 

(a) A mobile shop shall comply with all health and safety requirements and all other requirements

of the Act and this chapter for barbershops or specialty shops, as applicable, except as modified

by this section or as otherwise indicated.

(b) A mobile shop license holder shall maintain a permanent physical address as required by §82.22(g). The mobile shop shall notify the department in writing of any change in physical or mailing address within 10 calendar days of the change.

(c) Records of the following shall be kept within the mobile unit and made available for inspection

by department personnel: appointments; itineraries, if the shop submits itineraries to the

department as provided by subsection (d); license numbers of employees and independent

contractors; and vehicle identification numbers of the mobile shop. Records of appointments and

itineraries shall be kept for a period of at least one year from the date the record is made.

(d) A mobile shop shall either:

(1) have a Global Positioning System (GPS) tracking device that enables the department to track the location of the mobile shop over the Internet and meet the following requirements:

(A) the device shall be on board and functioning at all times the mobile shop is in operation or open for business; and

(B) the mobile shop shall provide the department with all information necessary to track the shop over the Internet; or

(2) submit to the department, in a manner specified by the department, a weekly itinerary showing the dates, exact locations, and times of service to be provided. The license holder shall submit the itinerary not less than 7 calendar days prior to the beginning of service described in the itinerary and shall submit to the department any changes in the itinerary not less than 24 hours prior to the change. A mobile shop shall follow the itinerary in providing service and notify the department of any changes.

(e) Furniture shall be anchored to the unit.

(f) All chemicals in the mobile shop shall be stored in cabinets secured with safety catches and shall be stored separate and apart from other articles or equipment in the shop.

(g) A mobile shop shall display on both sides of the exterior of the mobile shop, the mobile shop's license number and a sign stating the name of the shop.

(h) A mobile shop shall have a water heater that provides fresh, hot water continuously and on demand.

(i) A mobile unit shall have a fresh water tank holding a sufficient amount of fresh water to perform the day's business. If a mobile unit's fresh water supply is depleted, operation must cease until the supply is replenished.

(j) A mobile shop shall have a functioning restroom within its perimeter, including a self-contained, flush toilet with holding tank.

(k) No services may be performed outside the mobile shop or while the mobile shop is in motion.

(l) A mobile shop may not be used as a residence or for any other purpose besides providing

barbering services.

§82.80. Fees.

(a) Application Fees:

(1) Class A Barber Certificate--$55

(2) Barber Instructor License--$65

(3) Specialty License--Barber Technician, Manicurist, Barber Technician/Manicurist, Barber Technician/Hair Weaving--$30

(4) Student Permit--$25

(5) Specialty Certificate of Registration--Hair Weaving--$30

(6) Specialty Instructor License--Barber Technician, Manicurist, Barber Technician/Manicurist, Barber Technician/Hair Weaving, Hair Weaving--$65

(7) Barbershop Permit--$60

(8) Mini-Barbershop Permit--$60

(9) Specialty Shop Permit--$50

(10) Booth Rental Permit--No fee

(11) School Original Permit--$300

(12) Dual Shop--$130

(13) Mini-Dual Shop Permit--$60

(14) Mobile Shop--$60

(b) Renewal Fees:

(1) Class A Barber Certificate--$55

(2) Barber Instructor License--$65

(3) Specialty License--Barber Technician, Manicurist, Barber Technician/Manicurist, Barber Technician/Hair Weaving--$30

(4) Specialty Certificate of Registration--Hair Weaving--$30

(5) Specialty Instructor License--Barber Technician, Manicurist, Barber Technician/Manicurist, Barber Technician/Hair Weaving, Hair Weaving--$65

(6) Barbershop Permit--$60

(7) Mini-Barbershop Permit--$60

(8) Specialty Shop Permit--$50

(9) Booth Rental Permit--No fee

(10) School Permit--$200

(11) Dual Shop--$100

(12) Mini-Dual Shop Permit--$60

(13) Mobile Shop--$60

(c) Reciprocity or Endorsement Fee--$55

(d) Revised/Duplicate License/Certificate/Permit/Registration--$25

(e) Verification of license, permit or certificate to other states--$15

(f) Law and Rules Book Fee--$10

(g) Late renewals fees for licenses, certificates and permits issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(h) Initial Inspection or Re-inspection of school Fees (for each occurrence)--$200

(i) All fees are nonrefundable, except as otherwise provided by law or commission rule.

(j) Law and rule book fee is included in the application and renewal fees for student, individual and establishment licenses, certificates and permits.

§82.102. Health and Safety Standards--General Requirements.

(a) All licensees shall clean their hands with soap and water or use a hand sanitizer prior to performing any services and as necessary during the services to ensure a client health and safety. All barber establishments and licensees shall utilize clean and disinfected equipment, tools, implements, and supplies in accordance with this Chapter, and shall employ good hygiene habits while providing barbering services.

(b) A licensee may not perform services on a client if the licensee has reason to believe the client has a contagious condition such as head lice, nits, ringworm; or inflamed, infected, broken, raised or swollen skin or nail tissue; or an open wound or sore in the area to be serviced.

(c) Multi-use equipment, implements, tools or materials not addressed in this chapter shall be cleaned and disinfected before use on each client. Except as otherwise provided in this chapter, chairs and dryers do not need to be disinfected prior to use for each client.

(d) Single-use equipment, implements, tools or porous items not addressed in this rule shall be discarded after use on a single client.

(e) Electrical equipment that cannot be immersed in liquid shall be wiped clean and disinfected prior to each use on a client.

(f) All clean and disinfected implements and materials when not in use shall be stored in a clean,

dry, debris-free environment including but not limited to drawers, cases, tool belts, rolling trays,

or hung from hooks. They must be stored separate from soiled implements and materials.

Ultraviolet electrical sanitizers are permissible for use as a dry storage container. Non-barber

related supplies must be stored in separate drawers or locations.

(g) A container, large enough to fully immerse all tools and implements with liquid disinfectant shall be used to disinfect combs, brushes, scissors or other equipment which may be safely immersed in a liquid disinfectant.

(h) Shampoo bowls and manicure tables shall be disinfected prior to use for each client.

(i) Floors in barber establishments shall be thoroughly cleaned each day. All hair cuttings shall be removed as soon as practicable.

(j) All trash containers must be emptied daily and kept clean by washing or using plastic liners.

(k) Hand washing facilities, including hot and cold running water must be provided for employees.

(l) Clean towels shall be used on each client. Towels must be washed in hot water and chlorine bleach.

(m) Soiled towels shall be removed after use on each client and deposited in a suitable receptacle.

(n) Each barber establishment shall keep all products used in the conduct of their business properly labeled in compliance with OSHA requirements.

(o) Haircutting capes and shampoo capes shall be kept clean. A clean (one-use) cape shall be used

for each client, or a sanitary neck strip or towel shall be used to keep capes from coming into direct

contact with the client's neck.

§82.108. Health and Safety Standards--Footspas.

(a) As used in this section, ''whirlpool footspa'' or ''spa'' is defined as any basin using circulating water, either in a self-contained unit or in a unit that is connected to other plumbing in the establishment. The cleaning and disinfecting procedures for foot spas in this section shall be followed for units connected to an establishment's plumbing, and, to every extent possible, self-contained units.

(b) Before use upon each patron, each whirlpool foot spa shall be cleaned and disinfected in the following manner.

(1) All water shall be drained and all debris shall be removed from the spa basin.

(2) The spa basin must be cleaned with soap or detergent and water.

(3) The spa basin must be disinfected with an EPA registered disinfectant with demonstrated bactericidal, fungicidal, and virucidal activity which must be used according to the manufacturer's instructions.

(4) The spa basin must be wiped dry with a clean towel.

(c) At the end of each day, each whirlpool foot spa shall be cleaned and disinfected in the following manner:

(1) The screen shall be removed, all debris trapped behind the screen shall be removed, and the screen and the inlet shall be washed with soap and water or detergent and water.

(2) Before replacing the screen, one of the following procedures shall be performed:

(A) The screen shall be washed with a chlorine bleach solution of one-third (1/3) cup of 5.25% chlorine bleach to one (1) gallon of water; or

(B) The screen shall be totally immersed in an EPA-registered disinfectant with demonstrated bactericidal, fungicidal, and virucidal activity which must be used according to manufacturer's instructions.

(3) The spa system shall be flushed with soap and warm water for at least ten (10) minutes, after which the spa shall be rinsed and drained.

(d) Every other week (bi-weekly), after cleaning and disinfecting as provided in this subsection, each whirlpool foot spa shall be cleaned and disinfected in the following manner:

(1) The spa basin shall be filled completely with water and one-third (1/3) cup of 5.25% chlorine bleach for each one (1) gallon of water.

(2) The spa system shall be flushed with the chlorine bleach and water solution or an EPA-registered disinfectant with demonstrated bactericidal, fungicidal, and virucidal activity according to the manufacturer's instructions for 5 to 10 minutes and allowed to sit for 6 to 10 hours.

(3) The spa system shall be drained and flushed with water before use upon a patron.

(e) A record shall be made on a form prescribed by the Department of the date and time of each cleaning and disinfecting indicating whether the cleaning was a daily or bi-weekly cleaning. This record shall be made at or near the time of cleaning and disinfecting. The record shall indicate if a spa was not used at all during any individual work day. Cleaning and disinfecting records shall be made available upon request by either a patron or a Department representative.

(f) A footspa for which documentation is not maintained in accordance with this rule must be removed from service and not used again until it has be cleaned and disinfected in accordance with the requirements of this rule and the records have been properly updated.

(g) Footspa chairs shall be cleaned and disinfected prior to providing service to each client. The

chair shall be made of or covered in a non-porous material that can be disinfected.

The repeal is under Texas Occupations Code, Chapters 51, 1601, and 1603, which authorize the

Commission, the Department’s governing body, to adopt rules as necessary to implement these

chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code,

Chapter 51, 1601, and 1603. No other statutes, articles, or codes are affected by the proposal.

[§82.53. Risk-Based Inspections.]

This agency hereby certifies that the adoption has been reviewed by legal counsel and found

to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State, on December 21, 2017.


 Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation