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Oregon Bulletin

October 1, 2011

 

Oregon Health Licensing Agency,
Board of Cosmetology
Chapter 817

Rule Caption: Amend civil penalty assessment rules. Amend rules related to practicing as on or an individual with a communicable disease.

Adm. Order No.: BOC 4-2011(Temp)

Filed with Sec. of State: 9-13-2011

Certified to be Effective: 9-13-11 thru 3-11-12

Notice Publication Date:

Rules Amended: 817-090-0025, 817-090-0035, 817-090-0045, 817-090-0105, 817-120-0005

Subject: It is necessary to amend OAR 817-090-0025, 817-090-0035, and 817-090-0045 because the agency and the board do not have statutory authority to assess civil penalties for violations of ORS chapter 676 or OAR chapter 331 under OAR chapter 817.

      It is necessary to amend OAR 817-090-0105 and 817-120-0005 because it is unlawful under the ADA for a state to prevent an individual from practicing cosmetology based on that individual’s HIV/AIDS (communicable disease) status.

Rules Coordinator: Samantha Patnode—(503) 373-1917

817-090-0025

Schedule of Penalties for Facility and Independent Contractor Registration Violations

The Agency has adopted the following presumptive penalty schedule for the 1st, 2nd, and 3rd violation of facility license and independent contractor registration laws and rules. This schedule applies, except at the discretion of the agency pursuant to OAR 331-020-0060. For the 4th and subsequent offenses, the provisions of 331-020-0060 apply.

(1) Operating or purporting to operate a facility without a valid facility license is a violation of ORS 690.015(2)(b) or 690.015(2)(e):

(a) Never licensed:

(A) 1st offense: $500;

(B) 2nd offense: $1000;

(C) 3rd offense: $2500

(b) Inactive or expired license:

(A) 1st offense: $200;

(B) 2nd offense: $500;

(C) 3rd offense: $1,000

(c) Certificate, Authorization, or Registration Suspended or Revoked:

(A) 1st offense: $2,500;

(B) 2nd offense: $5,000;

(C) 3rd offense: Monetary penalty and any other actions allowed by law including revocation of suspended authorization to practice and refusal to issue a new authorization to practice to a revoked authorization holder.

(2) Operating or purporting to operate as an independent contractor without independent contractor registration or with a dormant independent contractor registration is a violation of ORS 690.015 (2)(d) or 690.015(2)(e):

(a) 1st offense: $200

(b) 2nd offense: $500

(c) 3rd offense: $1,000

(3) Allowing an uncertified employee or uncertified individual under a person’s supervision and control to practice in a field of practice is a violation of ORS 690.015(2)(g):

(a) Employee or individual who has never been certified:

(A) 1st offense: $500;

(B) 2nd offense: $1,000;

(C) 3rd offense: $2,500

(b) Employee or individual with inactive, suspended, revoked, or expired certification:

(a) 1st offense: $200

(b) 2nd offense: $500

(c) 3rd offense: $1000

(4) Failing to meet the specifications and standards required under OAR 817-010-0007 in a facility is a violation of 817-020-0006(1)(e) and may result in an emergency suspension of the facility license until the violation is corrected.

Stat. Auth.: ORS 676.605, 676.615, 676.992, 690.165 & 690.167

Stats. Implemented: ORS 676.992, 690.015, 690.165 & 690.167

Hist.: BH 3-1984(Temp), f. & ef. 6-27-84; BH 4-1984, f. & ef. 12-7-84; BH 1-1985, f. & ef. 3-28-85; BH 1-1988, f. & cert. ef. 7-1-88; BH 2-1990, f. & cert. ef. 10-29-90; BH 1-1992, f. 6-1-92, cert. ef. 7-1-92; BH 3-1994, f. 6-23-94, cert. ef. 7-1-94; BH 1-1996, f. 5-31-96, cert. ef. 7-1-96; Renumbered from 817-090-0020; BBH 1-1998, f. 6-24-98, cert. ef. 6-30-98; BOC 1-2000, f. 5-12-00, cert. ef. 5-15-00; BOC 1-2002, f. 5-31-02 cert. ef. 6-1-02; BOC 1-2004, f. 6-29-04, cert. ef. 7-1-04; BOC 1-2006, f. & cert. ef. 3-15-06; BOC 2-2011, f. & cert. ef. 5-5-11; BOC 4-2011(Temp), f. & cert. ef. 9-13-11 thru 3-11-12

817-090-0035

Schedule of Penalties for Practitioner Violations

The Agency has adopted the following presumptive penalty schedule for the 1st, 2nd, and 3rd violation of practitioner licensing laws and rules. This schedule applies, except at the discretion of the agency pursuant to OAR 331-020-0060. For the 4th and subsequent offenses, the provisions of OAR 331-020-0060 apply.

(1) Performing, attempting to perform, or purporting to perform services in a field of practice without proper certification, authorization, registration or permit is a violation of ORS 690.015(2)(a) or 690.015(2)(e).

(a) Certificate, authorization, registration, or permit inactive or expired:

(A) 1st offense: $200;

(B) 2nd offense: $500;

(C) 3rd offense: $1000.

(b) Certificate, authorization, registration, permit never held:

(A) 1st offense: $1,000;

(B) 2nd offense: $2,500;

(C) 3rd offense $5,000.

(c) Certificate, authorization, or registration suspended or revoked:

(A) 1st offense: $2,500;

(B) 2nd offense: $5,000;

(C) 3rd offense: Monetary penalty and any other actions allowed by law including revocation of suspended authorization to practice and refusal to issue a new authorization to practice to a revoked authorization holder.

(2) Performing or attempting to perform services in a field of practice in an unlicensed facility is a violation of ORS 690.015(2)(c):

(a) 1st offense: $200;

(b) 2nd offense: $500;

(c) 3rd offense: $1,000

(3) Performing in a field of practice by a student when not on the premises of an educational institution in which he or she is enrolled is a violation of OAR 817-100-0005:

(a) 1st offense: $500;

(b) 2nd offense: $1,000;

(c) 3rd offense: $2,500.

Stat. Auth: ORS 676.605, 676.615, 676.992, 690.165 & 690.167

Stats. Implemented: ORS 676.605, 676.615, 676.992, 690.165 & 690.167

Hist.: BH 3-1984(Temp), f. & ef. 6-27-84; BH 4-1984, f. & ef. 12-7-84; BH 1-1985, f. & ef. 3-28-85; BH 1-1988, f. & cert. ef. 7-1-88; BH 2-1990, f. & cert. ef. 10-29-90; BH 1-1992, f. 6-1-92, cert. ef. 7-1-92; BH 3-1994, f. 6-23-94, cert. ef. 7-1-94; BH 1-1996, f. 5-31-96, cert. ef. 7-1-96, Renumbered from 817-090-0020; BOC 1-2000, f. 5-12-00, cert. ef. 5-15-00; BOC 2-2001, f. 2-16-01, cert. ef. 3-1-01; BOC 1-2004, f. 6-29-04, cert. ef. 7-1-04; BOC 1-2006, f. & cert. ef. 3-15-06; BOC 2-2011, f. & cert. ef. 5-5-11; BOC 4-2011(Temp), f. & cert. ef. 9-13-11 thru 3-11-12

817-090-0045

Schedule of Penalties for Certificate/License/Registration/ Permit Violations

The Agency has adopted the following presumptive penalty schedule for the 1st, 2nd, and 3rd violation of certificate/license/registration/permit laws and rules. This schedule applies, except at the discretion of the agency pursuant to OAR 331-020-0060. For the 4th and subsequent offenses, the provisions of 331-020-0060 apply.

(1) Altering with fraudulent intent or fraudulent use of a license, certificate, registration, permit or authorization issued by the agency is a violation of ORS 690.015(2)(j) or 690.015(2)(k):

(a) 1st offense: $1,500;

(b) 2nd offense: $3,500;

(c) 3rd offense: $5,000.

(2) Failing to post a valid license, registration, certificate, permit or authorization issued by the agency in public view is a violation of ORS 690.095 and OAR 817-035-0110:

(a) 1st offense: $100

(b) 2nd offense: $200

(c) 3rd offense: $500

(3) Failing to post the most recent inspection certificate in public view within the facility is a violation of OAR 817-035-0110:

(a) 1st offense: $100;

(b) 2nd offense: $200;

(c) 3rd offense: $500.

Stat. Auth.: ORS 676.605, 676.615, 676.992, 690.165 & 690.167

Stats. Implemented: ORS 676.605, 676.615, 676.992, 690.015, 690.165 & 690.167

Hist.: BH 3-1984(Temp), f. & ef. 6-27-84; BH 4-1984, f. & ef. 12-7-84; BH 1-1985, f. & ef. 3-28-85; BH 1-1988, f. & cert. ef. 7-1-88; BH 2-1990, f. & cert. ef. 10-29-90; BH 1-1992, f. 6-1-92, cert. ef. 7-1-92; BH 3-1994, f. 6-23-94, cert. ef. 7-1-94; BH 1-1996, f. 5-31-96, cert. ef. 7-1-96; Renumbered from 817-090-0020; BBH 1-1998, f. 6-24-98, cert. ef. 6-30-98; BOC 1-2000, f. 5-12-00, cert. ef. 5-15-00; BOC 1-2004, f. 6-29-04, cert. ef. 7-1-04; BOC 1-2006, f. & cert. ef. 3-15-06; BOC 2-2011, f. & cert. ef. 5-5-11; BOC 4-2011(Temp), f. & cert. ef. 9-13-11 thru 3-11-12

817-090-0105

Schedule of Penalties for Client Health and Safety Violations

The Agency has adopted the following presumptive penalty schedule for the 1st, 2nd, and 3rd violation of safety and infection control laws and rules. This schedule applies, except at the discretion of the agency pursuant to OAR 331-020-0060. For the 4th and subsequent offenses, the provisions of 331-020-0060 apply.

(1) Failing to use a neck strip or a towel to prevent contact between the skin of a client’s neck and a hair cloth or cape is a violation of OAR 817-010-0040(1):

(a) 1st offense: $300;

(b) 2nd offense: $500;

(c) 3rd offense: $1000.

(2) Failing to use a disposable cover on the head of a client who is trying on a hairpiece or to clean and label used hair goods as “used” prior to resale is a violation of OAR 817-010-0085:

(a) 1st offense: $300;

(b) 2nd offense: $500;

(c) 3rd offense: $1000.

(3) Failing to wear single-use disposable protective gloves while having open sores or skin lesions during any performance of service on a client is a violation of OAR 817-015-0030(2):

(a) 1st offense: $300;

(b) 2nd offense: $500;

(c) 3rd offense: $1000.

(4) Performing services without washing one’s hands immediately before and after serving each client is a violation of OAR 817-015-0030(1):

(a) 1st offense: $300;

(b) 2nd offense: $500;

(c) 3rd offense: $1000.

(5) Failing to maintain client records for each client receiving esthetics or nail technology services, maintain client records on the premises of the facility or allow an enforcement officer access to review client records upon request is a violation of OAR 817-015-0065 or 817-015-0070:

(a) 1st offense: $300;

(b) 2nd offense: $500;

(c) 3rd offense: $1000.

(6) Failing to maintain required documentation of an FDA Class I or Class II manual or mechanical device or equipment, or to provide required documentation upon request is a violation of OAR 817-010-0065(10) or (14):

(a) 1st offense: $300;

(b) 2nd offense: $500;

(c) 3rd offense: $1000.

Stat. Auth.: ORS 676.605, 676.615, 676.992, 690.165, 690.167, 690.205

Stats. Implemented: ORS 676.605, 676.615, 676.992, 690.165, 690.167 & 690.205

Hist.: BH 1-1985, f. & ef. 3-28-85; BH 1-1988, f. & cert. ef. 7-1-88; BH 2-1990, f. & cert. ef. 10-29-90; BH 3-1994, f. 6-23-94, cert. ef. 7-1-94; BH 1-1996, f. 5-31-96, cert. ef. 7-1-96; Renumbered from 817-090-0030; BBH 1-1998, f. 6-24-98, cert. ef. 6-30-98; BOC 1-2000, f. 5-12-00, cert. ef. 5-15-00; BOC 4-2001(Temp), f. & cert. ef. 11-1-01 thru 4-29-02; BOC 1-2002, f. 5-31-02 cert. ef. 6-1-02; BOC 1-2004, f. 6-29-04, cert. ef. 7-1-04; BOC 1-2006, f. & cert. ef. 3-15-06; BOC 2-2011, f. & cert. ef. 5-5-11; BOC 4-2011(Temp), f. & cert. ef. 9-13-11 thru 3-11-12

817-120-0005

Practice Standards

(1) Practitioners must be guided by the highest standards of professional conduct.

(2) Practitioners shall act and practice in a manner which safeguards the public’s health, safety, and welfare.

(3) All practitioners shall be appropriately clothed while providing services and shall be subject to public decency laws.

Stat. Auth.: ORS 676.605, 676.615 & 690.165

Stats. Implemented: ORS 676.605, 676.615 & 690.165

Hist.: BH 1-1988, f. & cert. ef. 7-1-88; BH 3-1994, f. 6-23-94, cert. ef. 7-1-94; BH 1-1996, f. 5-31-95, cert. ef. 7-1-96; Renumbered from 817-120-0010, BOC 1-2000, f. 5-12-00, cert. ef. 5-15-00; BOC 1-2004, f. 6-29-04, cert. ef. 7-1-04; BOC 1-2006, f. & cert. ef. 3-15-06; BOC 4-2011(Temp), f. & cert. ef. 9-13-11 thru 3-11-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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