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STATE OF MICHIGAN
95TH LEGISLATURE
REGULAR SESSION OF 2010
Introduced by Senator Gleason
ENROLLED SENATE BILL No. 1486
AN ACT to amend 1978 PA 368, entitled “An act to protect and promote the public
health; to codify, revise,
consolidate, classify, and add to the laws relating to public health; to provide
for the prevention and control of diseases
and disabilities; to provide for the classification, administration, regulation,
financing, and maintenance of personal,
environmental, and other health services and activities; to create or continue,
and prescribe the powers and duties of,
departments, boards, commissions, councils, committees, task forces, and other
agencies; to prescribe the powers and
duties of governmental entities and officials; to regulate occupations,
facilities, and agencies affecting the public health;
to regulate health maintenance organizations and certain third party
administrators and insurers; to provide for the
imposition of a regulatory fee; to provide for the levy of taxes against certain
health facilities or agencies; to promote
the efficient and economical delivery of health care services, to provide for
the appropriate utilization of health care
facilities and services, and to provide for the closure of hospitals or
consolidation of hospitals or services; to provide for
the collection and use of data and information; to provide for the transfer of
property; to provide certain immunity from
liability; to regulate and prohibit the sale and offering for sale of drug
paraphernalia under certain circumstances; to
provide for the implementation of federal law; to provide for penalties and
remedies; to provide for sanctions for
violations of this act and local ordinances; to provide for an appropriation and
supplements; to repeal certain acts and
parts of acts; to repeal certain parts of this act; and to repeal certain parts
of this act on specific dates,” by amending
sections 13101, 13102, 13104, 13105, 13106, 13107, 13108, 13109, 13110, and
13111 (MCL 333.13101, 333.13102, 333.13104,
333.13105, 333.13106, 333.13107, 333.13108, 333.13109, 333.13110, and
333.13111), sections 13101 and 13102 as amended
and sections 13104, 13105, 13106, 13107, 13108, 13109, 13110, and 13111 as added
by 2007 PA 149, and by adding
sections 13105a and 13112; and to repeal acts and parts of acts.
The People of the State of Michigan enact:
Sec. 13101. (1) As used in this part:
(a) “Alcoholic liquor” means that term as defined in section 105 of the Michigan
liquor control code of 1998, 1998
PA 58, MCL 436.1105.
(b) “Applicant” means the person who submits an application for a body art
facility license under this part and
includes the owner or operator, an agent of the owner or operator, or any other
person operating under the apparent
authority of the owner or operator of a body art facility that is required to be
licensed under this part.
(c) “Body art facility” means the location at which an individual does 1 or more
of the following:
(i) Performs tattooing.
(ii) Performs branding.
(iii) Performs body piercing.
(d) “Body piercing” means the perforation of human tissue other than an ear for
a nonmedical purpose.
(116)
ESB 1486
Act No. 375
Public Acts of 2010
Approved by the Governor
December 22, 2010
Filed with the Secretary of State
December 22, 2010
EFFECTIVE DATE: December 22, 2010
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(e) “Branding” means a permanent mark made on human tissue by burning with a hot
iron or other instrument.
(f) “Controlled substance” means that term as defined in section 7104.
(g) “Critical violation” means a violation of this part that is determined by
the department or a local health department
to be more likely than other violations of this part to contribute to illness in
humans.
(h) “Licensee” means the person who is the holder of a license under this part
or the person who is legally responsible
for the operation of a body art facility and includes the owner or operator, an
agent of the owner or operator, or any
other person operating under the apparent authority of the owner or operator of
a body art facility that is required to
be licensed under this part.
(i) “Local governing entity” means that term as defined in section 2406.
(j) “Minor” means an individual under 18 years of age who is not emancipated
under section 4 of 1968 PA 293,
MCL 722.4.
(k) “Smoking” means that term as defined in section 12601.
(l) “Tattoo” means 1 or more of the following:
(i) An indelible mark made upon the body of another individual by the insertion
of a pigment under the skin.
(ii) An indelible design made upon the body of another individual by production
of scars other than by branding.
(m) “Temporary body art facility” means a body art facility that operates at a
fixed or temporary location in this
state for a time period that does not exceed 14 consecutive days and includes
out-of-state facilities operating within this
state.
(2) In addition, article 1 contains general definitions and principles of
construction applicable to all articles in this
code.
Sec. 13102. An individual shall not tattoo, brand, or perform body piercing on a
minor unless the individual obtains
the prior written informed consent of the minor’s parent or legal guardian and
proof of that individual’s authority to
give the informed consent required under this section. The minor’s parent or
legal guardian shall execute the written,
informed consent required under this section in the presence of the licensee or
an employee or agent of the licensee.
The minor’s parent or legal guardian shall present to the licensee or employee
or agent of the licensee the minor’s birth
certificate or legal proof of guardianship to establish the individual’s
authority to give the informed consent required
under this section.
Sec. 13104. (1) An individual shall not tattoo, brand, or perform body piercing
on another individual unless the
tattooing, branding, or body piercing occurs at a body art facility licensed
under this part. Any tattooing, branding, or
body piercing occurring in this state other than at a facility licensed under
this part is considered an imminent danger
under section 2251 or 2451 and the department or a local health department shall
order the immediate cessation of that
activity in the manner prescribed in this act.
(2) The owner or operator of a body art facility shall apply to the department
for a body art facility license under
this part on a form provided by the department and at the time of application
shall pay to the department the
appropriate fee prescribed under subsection (4). The department shall issue a
license on an annual basis to a body art
facility that meets the requirements of this part or for a time period not to
exceed 14 consecutive days to a temporary
body art facility that meets the requirements of this part.
(3) If the department determines that the application is complete and the body
art facility proposed or operated by
the applicant meets the requirements of this part and any rules promulgated
under this part, the department shall issue
the appropriate license to the applicant for the operation of that body art
facility. Except for a temporary license issued
under this part, the license is effective for up to 1 year and expires at 12
midnight on December 31. A temporary license
issued under this part is effective for not more than 14 consecutive days and
expires at 12 midnight on the date
prescribed on the temporary license.
(4) Except as otherwise provided in this part, the applicant shall pay 1 of the
following fees at the time of application
for a body art facility license:
(a) For an annual
license.......................................................................................................................
$ 500.00.
(b) For a temporary license to operate a body art facility at a fixed location
for not more than
14 consecutive days
..............................................................................................................................
$ 150.00.
(5) An applicant for a new annual license that is filed on or after July 1 shall
only pay 50% of the fee prescribed in
subsection (4)(a). A licensee that fails to submit an application for a license
renewal on or before December 1, in addition
to the license fee under subsection (4)(a), shall pay an additional $250.00 late
fee.
(6) The department shall issue a duplicate license upon request of a licensee
and the payment of a duplicate license
fee of $50.00.
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(7) Unless a different distribution is provided for in a cost reimbursement
program under sections 2471 to 2498, the
department shall distribute a portion of a fee collected under this section from
an applicant or licensee to a local health
department authorized to enforce this part under section 13108 as follows:
(a) From the annual license fee under subsection (4)(a) or (5) and, if
applicable, from the late fee under subsection (5),
50%.
(b) From the temporary license fee under subsection (4)(b), 75%.
(c) From the duplicate license fee under subsection (6), 50%.
(8) The department shall adjust the fees prescribed in this section annually by
an amount determined by the state
treasurer to reflect the cumulative annual percentage change in the Detroit-Ann
Arbor-Flint consumer price index, but
not by an amount that exceeds 5%. As used in this subsection, “Detroit-Ann
Arbor-Flint consumer price index” means
the most comprehensive index of consumer prices available for the Detroit, Ann
Arbor, and Flint areas from the bureau
of labor statistics of the United States department of labor.
Sec. 13105. (1) Before issuing a license to an applicant under this part, the
department shall receive the results of an
inspection of the premises of the body art facility that is the subject of the
application from the appropriate local health
department. The local health department shall convey the results of the
inspection of the premises of the body art
facility that is the subject of the application to the department as soon as
practical after the inspection occurs, along
with its recommendation on whether the department should issue a license to that
facility under this part.
(2) The appropriate local health department shall inspect each body art facility
prior to being licensed under this
part and shall at least annually inspect each body art facility licensed under
this part to ensure compliance with this
part. Subject to section 13108, the department shall authorize a local health
department under section 2235 to perform
the inspections required under this subsection.
(3) The department shall issue a license under this part to a specific person
for a body art facility at a specific or
temporary location.
(4) A license issued under this part is nontransferable.
Sec. 13105a. (1) An applicant or licensee shall give the local health department
access to the body art facility and all
of its books and records during all hours of operation and during other
reasonable hours to allow the local health
department to determine if the body art facility is in compliance with this
part. An inspection of a body art facility under
this part may be announced or unannounced. An applicant or licensee shall not do
any of the following:
(a) Refuse to permit the local health department to enter or inspect a body art
facility.
(b) Refuse to produce the body art facility’s books and records for inspection.
(c) Any other activity that impedes the local health department’s ability to
carry out its duties prescribed in this
part.
(2) As part of an inspection under this part, the local health department may
examine, take photographs, or make
copies of the books and records of the body art facility.
(3) Upon completion of an inspection under this part, the local health
department shall reduce its findings to writing
on a form prescribed by the department. The inspection report shall include a
summary of all findings of the inspection
with regard to items of compliance with this part. If any critical violations
are found, the inspection report shall include
a compliance schedule for the body art facility to follow, which schedule is
consistent with the department’s standards
established under this part for body art facilities.
(4) An authorized representative of the local health department who participated
in the conduct of the inspection
shall sign and date the inspection report and obtain the signature of the
licensee on the report. A copy of the signed and
dated inspection report shall be delivered to the licensee.
(5) If the local health department determines that the continued operation of a
body art facility is an imminent
danger under section 2451, the local health department shall order the immediate
cessation of the operation of that
facility in the manner prescribed in this act. A body art facility ordered to
cease operations under this subsection shall
immediately cease operations and shall not resume operations until the local
health department has conducted an
inspection, has determined that the operation of the body art facility is no
longer an imminent danger, and has issued
an order allowing the body art facility to resume operations.
(6) At any time it determines appropriate, a local health department may place
limitations on the license of a body
art facility, which limitations include the imposition of restrictions or
conditions, or both, on the operations of that body
art facility. A body art facility shall comply with all license limitations
imposed under this subsection until the local
health department has conducted an inspection, has determined that the license
limitations are no longer necessary, and
has issued an order allowing the body art facility to resume operations without
the license limitations.
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Sec. 13106. The licensee shall apply to the department for renewal of the annual
license on or before December 1
each year. A licensee that fails to file an application for renewal as
prescribed in this section is subject to the late fee
under section 13104.
Sec. 13107. A licensee shall do all of the following:
(a) Display the license issued under this part in a conspicuous place within the
customer service area of the body art
facility.
(b) Comply with and ensure that the body art facility is in compliance with this
part and part 138 and with rules
promulgated under those parts.
(c) Develop and maintain a bloodborne infectious disease exposure control plan
that is specific to the location of that
facility and that is in compliance with applicable Michigan occupational safety
and health administration standards
including the standards for bloodborne infectious diseases under R 325.70001 to
R 325.70018 of the Michigan administrative
code.
(d) Ensure that the body art facility as a whole, the owner or operator, an
agent of the owner or operator, an
employee, and any individual engaged in tattooing, cleaning tattooing
instruments, performing branding or body
piercing, or cleaning branding or body piercing instruments who has the
potential for occupational exposure to blood or
other potentially infectious materials receive training annually on bloodborne
infectious diseases.
(e) Ensure that tattooing, branding, or body piercing is performed with sterile
needles, sterile instruments, and only
single-use ink.
(f) Maintain a confidential record of each individual who has been tattooed or
branded or who has had body piercing
performed at the body art facility and make the records available for inspection
by a local health department. The
record shall include, at a minimum, the individual’s name, address, date of
birth, and signature; the procedure date; the
design and location of the tattooing, branding, or body piercing; the name of
the individual performing the tattooing,
branding, or body piercing; and any known complications the individual has with
any previous tattooing, branding, or
body piercing procedure. The licensee or employee of the licensee shall provide
a copy of the record to the individual at
the time he or she is tattooed, is branded, or has body piercing performed. The
department shall develop guidelines for
the confidential handling of this record, including, but not limited to, the
maintenance, storage, inspection, and destruction
of the record.
(g) Prohibit smoking within the body art facility.
(h) Provide each customer with a written information sheet that provides at
least all of the following:
(i) Instructions on the care of a tattoo site, brand site, or body piercing
site.
(ii) A recommendation that an individual seek medical attention if the tattoo
site, brand site, or body piercing site
becomes infected or painful or if the person develops a fever soon after being
tattooed, branded, or having body piercing
performed.
(iii) Notice that the individual may be allowed to donate blood within the
standard deferral period if the individual
presents a copy of the record required under subdivision (f) to the blood donor
facility.
(i) Maintain on file on the premises of the body art facility and have available
for inspection by a local health
department all of the following:
(i) All of the following regarding each technician employed by or who performs
tattooing, branding, or body piercing
at the body art facility:
(A) His or her full legal name.
(B) His or her exact duties at the facility.
(C) His or her date of birth.
(D) His or her gender.
(E) His or her home address.
(F) His or her home and work telephone numbers.
(G) His or her prior or other current places of employment as a technician, if
known.
(H) His or her training and experience.
(I) An identification photo.
(J) Documentation of compliance with the educational, training, or experience
requirements of the department under
this part.
(K) Documentation of HBV vaccination status or other vaccination status
requirements of the department under
this part.
(ii) Full legal name of the body art facility.
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(iii) The hours of operation of the body art facility.
(iv) All of the following regarding each owner and operator of the body art
facility:
(A) His or her full legal name.
(B) His or her home address.
(C) His or her home and work telephone numbers.
(v) A complete description of all tattooing, branding, or body piercing
performed at the body art facility.
(vi) A record of all instruments, body jewelry, sharps, and inks used for the
tattooing, branding, or body piercing
performed at the body art facility. The record shall include the name of the
item’s manufacturer and serial or lot number,
if applicable. The body art facility may provide invoices or orders to satisfy
the requirement of this subparagraph.
(vii) A copy of this part and rules promulgated under this part.
(viii) A copy of the current bloodborne infectious disease exposure control plan
developed and maintained under
subdivision (c).
(ix) Documentation of the annual training required under subdivision (d).
Sec. 13108. (1) Pursuant to section 2235, the department shall authorize a local
health department to enforce this
part and any rules promulgated under this part. A local health department
authorized to enforce this part and any rules
promulgated under this part shall enforce this part and any rules promulgated
under this part pursuant to sections 2461(2)
and 2462. In addition to the penalties and remedies under this part, a local
health department may enforce this part and
any rules promulgated under this part through an action commenced pursuant to
section 2465 or any other appropriate
action authorized by law.
(2) If a local health department of a county or city under part 24 is unable or
unwilling to perform the functions
required in this section and the county or city is not part of a district that
has created a district health department
pursuant to section 2415, the county or city, through an intergovernmental
agreement, may contract with another local
governing entity to have that entity’s local health department perform the
functions required in this section. The
contracting parties under this subsection shall obtain the department’s approval
before execution of the intergovernmental
agreement.
(3) Pursuant to section 2444, a local governing entity of a local health
department authorized to enforce this part
under this section may fix and require the payment of fees by applicants and
licensees for services required to be
performed by the local health department under this part.
(4) A local health department shall use as guidance in enforcing this part any
safety standards or other requirements
issued by the department applicable to body art facilities.
(5) In addition to any other enforcement action authorized by law, a person
alleging a violation of this part may bring
a civil action in a court of competent jurisdiction for appropriate injunctive
relief.
Sec. 13109. (1) Except as otherwise provided in section 13110, a person who
violates this part or a rule promulgated
under this part is guilty of a misdemeanor punishable by imprisonment for not
more than 93 days or a fine of not more
than $2,500.00, or both, for each violation.
(2) A person who violates this part or a rule promulgated under this part is
liable in a civil action for actual damages
or $1,000.00, whichever is greater, plus reasonable court costs, attorney fees,
and any other fines, fees, or claims for
reimbursement as determined by the court or the department.
Sec. 13110. A person shall not give or sell to a minor a tattooing, branding, or
body piercing kit or other tattooing,
branding, or body piercing device. A person who violates this section is
responsible for a state civil infraction and is
subject to a civil fine of not more than $500.00. This section shall be enforced
pursuant to chapter 88 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.8801 to 600.8835.
Sec. 13111. (1) A local governing entity of a local health department authorized
to enforce this part under section 13108
may adopt and enforce local codes, ordinances, or regulations that are more
stringent than the minimum applicable
standards set forth in this part, rules promulgated under this part, or any
safety standards or other requirements issued
by the department applicable to body art facilities. This part shall not relieve
the applicant or a licensee from the
responsibility for securing a local permit or complying with applicable local
codes, regulations, or ordinances that are in
addition to this part.
(2) A local health department may grant a variance to a body art facility from a
requirement of this part if the local
health department determines that the variance will not create or increase the
potential for a health hazard or nuisance
and that the activity or condition for which the variance is proposed will not
violate any other provisions of this part.
The applicant or licensee shall request the variance in writing, which writing
shall include all of the following:
(a) A statement of the proposed variance and a citation to the requirement of
this part for which the variance is
requested.
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(b) An analysis of the rationale for the variance.
(c) A description of the alternative methods the applicant or licensee will
utilize to ensure that the variance will not
create or increase the potential for any health hazard or nuisance.
(3) A variance granted under subsection (2) shall be in writing and shall be
maintained in the records of the local
health department for that body art facility.
Sec. 13112. (1) An individual shall not tattoo, brand, or perform body piercing
on another individual if the other
individual is under the influence of alcoholic liquor or a controlled substance.
(2) An individual who is under the influence of alcoholic liquor or a controlled
substance shall not tattoo, brand, or
perform body piercing on another individual.
Enacting section 1. Section 13103 of the public health code, 1978 PA 368, MCL
333.13103, is repealed.
This act is ordered to take immediate effect.
Secretary of the Senate
Clerk of the House of Representatives
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