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professional beauty federation of california’s
Report to THE JOINT LEGISLATIVE SUNSET REVIEW COMMITTEE
RE: STATE BOARD OF BARBERING & COSMETOLOGY
December 2005
The Professional Beauty Federation of California (PBFC) – www.beautyfederation.org – is the beauty industry’s voice in Sacramento. We believe the barbering and beauty trade is an honorable and personally rewarding profession, and that it is incumbent upon industry professionals to maintain and enhance our high standards and public appeal.
For the past 5 years, the PBFC has been the only cohesive and on-going beauty industry presence communicating industry needs and concerns to the bureaus, board and legislators that govern and regulate our business. The PBFC Board of Directors represents every industry segment, including individual licensees, manufacturers, distributors, and salon chains, individual salon owners, booth renters, educators (public and private), and school owners.
California’s beauty industry generates $6 billion annually to California’s economy. There are over 33,000 licensed salons and nearly a half-million licensees.
Over the past decade Sacramento authorities have foisted duplicative, inconsistent, nonsensical and costly regulations upon this industry, while consistently ignoring festering problems such as unlicensed activity, more-and-more barriers to industry entry, and rampant tax evasion.
Unfortunately, the new State Board of Barbering & Cosmetology has done little to address any of these most glaring problems, choosing to focus much of its time and energy on petty agendas not reflective of industry realities. Under the short tenure of Executive Officer Terri Ciau, there were substantial improvements in testing/licensing backlogs and other nagging administrative problems, but she was eventually forced out of office by the Board leadership, as she refused to, in her own words, “do the Board’s dirty work.” Attached is a recent Op/Ed piece that was printed in the industry’s largest circulated California periodical that details some of the “dirty work” the Board leadership has been fixated on during its first, rocky two years, but that is only a partial list. There is a troubling culture of collusion and back-door deal-making by appointed leaders of this State Board that should also be closely scrutinized, as this has bled into the legislative process on a number of occasions the past two years.
The purpose of this Report is to provide our elected, legislative officials a brief summary of the recent history of neglect and disregard of regulators for beauty industry realities, as well as to offer concrete solutions and recommendations to help alleviate some of the most pressing problems; you will note that many are consistent with the 2003 Sunset Review Report, codified in last Session’s SB 362 (Figueroa).
During both the 1996 and 2002 Bureau/Board of Barbering & Cosmetology Sunset Reviews, the Legislature and many in the beauty industry questioned the overall effectiveness of the regulations and enforcement of barbering and cosmetology officials within the Department of Consumer Affairs. After the 1996 Review, the old State Board of Barbering & Cosmetology was eventually sunsetted, and the Bureau of Barbering & Cosmetology took its place, with the hope of streamlining and improving the regulatory oversight of California’s beauty industry.
The 1996 Joint Legislative Sunset Committee Findings and Recommendations (hereafter, “1996 JLSRC Report”) made several reform recommendations for the new Bureau, centering on the broad themes of reducing the level of unnecessary and ineffectual regulations and removing many of the artificial barriers to entry into the profession. As one striking example, the 1996 JLSRC Report recommended that all state-enforced regulations should be reconsidered or completely abolished, except for those beauty practices that “could potentially endanger the health and safety of the public and cause significant public harm” (Recommendation 2, Finding 1, p. vi).
Unfortunately, very little – if any – of the 1996 JLSRC Report’s reforms were enacted by the then-Bureau, and in fact, many of the problems cited in the JLSRC Report actually worsened under the BBC’s watch. Therefore, many in California’s beauty industry were skeptical about a second review process. Their frustrations with the BBC’s lack of needed reforms lead to the enactment of SB 1482 (Polanco), effective in 2003, which did away with the Bureau and re-established a new Board of Barbering & Cosmetology. Many industry leaders supported SB 1482, including the PBFC, desiring a more representative, accountable and reform-minded regulatory body, which was required to do its official work in full view of the public.
Although many in the industry would like to see the sweeping reduction in state regulation as envisioned by the 1996 JLSRC Report quickly implemented by the new Board, the PBFC recognizes the consumer risk inherent in beauty services and therefore supports an intelligently and consistently regulated industry.
The PBFC would like State Board and regulatory officials to work in concert with responsible industry leaders when shaping new policies, seeking broad-based support before imposing arbitrary edicts; regulators should be cognizant of “the ‘repeat business’ dynamic of the normal marketplace” which “has considerable force” in our industry and judge all reform proposals in light of that self-regulating influence (1996 JLSRC Report, Recommendation 2, Finding 6, p. vii).
Moreover, the PBFC supports the public policy firmly stated in Government Code §11340, which emphasizes the role of governing agencies to set specific performance standards, and then holding licensees to those standards, rather than dictating the minutiae of day-to-day business and program operations (see §11340(d)).
The new Board should have ensured that the rule of law -- federal, state and municipal -- was equally enforced upon all licensees, salons, and education establishments in the beauty industry. Absent the color of law, no private association, corporation or individual can ensure such compliance industry-wide, and therefore it has been incumbent on the new Board to level the playing field for all beauty industry participants. The recent advent of the Booth Rental sector illustrates the need for governing agencies to keep pace with the ever-changing nature of California’s beauty industry; it is perplexing to industry leaders why our State Board has refused to do anything to address this fastest growing industry sector during its first two years of operation (not even create an industry, Board and cross-departmental Task Force to study this growing phenomenon).
The spirit of the 1996 Sunset Report and the specific issues of concern mandated to be studied by the 2003 Sunset Report should have been the primary guides for State officials when they were attempting to enforce barbering and cosmetology rules and regulations the past two years. Once a standard had been accepted by the industry and adopted by policy enforcers, regulators should have then equitably and consistently applied the rules to each industry sector and all licensed professionals, thereby preserving an equal standard for all to follow.
Instead, the new State Board has largely been bogged down in petty, personal agendas irrelevant to industry needs. The same problems and opportunities that faced our industry two years ago still face us now, and therefore it is incumbent on policy-makers to compel this State Board to address these priority concerns. Although the PBFC prefers a State Board structure with knowledgeable industry professionals, we will work with any regulatory revisions to this structure as the Legislature and Governor desire to help advance industry needs and conform regulations to these realities in the interest of protecting consumers and maintaining professional standards.
To advance these pressing needs, we have broken our recommendations into five, general areas, though several recommendations crossover into multiple categories.
1. Examination Reform: Licensure examination must be reformed, including: (a) returning to aggregate scoring of all non-barbering exams (the barbers currently enjoy the high passage rates that aggregate scoring affords); (b) streamlining the pre-application and re-exam processes, (c) improving the on-site exam candidate and model identification procedure, (d) updating curriculum mandated by the state (including how clock-hour credit is given), and (e) exempting/streamlining the licensure process for qualified American candidates through state-to-state reciprocity.
2. Duplicative Regulation: With the advent of the Bureau of Private Postsecondary Vocational Education (BPPVE) and its ambiguous, dual role overseeing beauty schools, the beauty education sector has been subject to duplicative, unprecedented and often unpredictable rules. Not only have inspection fines dramatically increased in school settings (many based on flimsy and indefensible justifications), but so has the number of required coursework approval applications and fees, while delays have been protracted. Those students attempting to enter the industry invariably feel the brunt of this intolerable, regulatory environment through increased tuition, reduced admissions, and needless delays in examinations.
We strongly recommend that the Legislature send a clear, statutory message that beauty schools and students should not have to be subjected to duplicative oversight by two DCA agencies (i.e., BPPVE and BBC). The BPPVE has statutory jurisdiction over all private, post-secondary, vocational institutions, and therefore it should continue to have such over private, post-secondary beauty colleges. The BBC’s role should be limited, as beauty colleges are education centers, not commercial salons.
3. Unlicensed Activity: Regulations and enforcement tactics need to reduce the incentives for unlicensed activity, not encourage further underground operations. Photographic licensure and collaboration with local law enforcement officials (e.g., fire inspectors, city business license enforcers, etc.) will immediately reduce many unlicensed activities. By working with legitimate entrepreneurs in a cooperative manner and municipal officials via state-local MOU’s, State regulators will successfully remove the incentives to go underground. Legitimate salons, professional licensees, and responsible schools will welcome State inspectors, and will gladly cooperate with a united effort to eliminate unlicensed or illegal operations.
4. Level Playing Field: Those responsible for the regulatory and tax rules governing California’s beauty industry (i.e., BBC, EDD, FTB, IRS) must work in concert to equitably enforce consumer protection and tax laws across the entire industry; as noted in the 1996 JLSRC Report, the rapidly rising industry sector known as “Booth Renting” is taking advantage of the current, unfair application and enforcement of law, to the overall detriment of the industry and at increased risk to consumers (see Recommendation 1, Finding 6, p. ii). The PBFC is supportive of the entrepreneurship spirit of this industry, including in the Booth Renting sector, but salon owners (be they sole proprietorships, chains, or independent contractors) must all be held to the same standards. Requiring Booth Renters to receive and post their own Establishment License at their rented site will help remind these independent contractors of their responsibilities as business owners as well as reveal to the public the business entity they are dealing with when receiving services in the privately rented booth space.
5. Barriers to Entry: As articulated by the Legislature in their 1996 JLSRC Report, many who are illegally participating in California’s beauty market do so because of unreasonably high barriers to entry. Duplicative and costly school regulations, costly and uncompromising requirements for all out-of-state professionals anxious to contribute to our state’s economy, and unnecessary and stifling micromanagement of the Apprenticeship and Externship programs are prime examples of the unnecessary barriers to California’s beauty marketplace, and nothing has really changed since the 1996 Report.
The State Board of Barbering & Cosmetology’s management and grading of beauty licensure examinations have placed unnecessary hurdles to entry into the profession; these artificial barriers to licensure have neither increased consumer protection nor industry growth, but has greatly contributed to the alarming level of unlicensed activity.
While the Legislature mandated the State Board study whether returning to aggregate scoring would help remove some of these unnecessary burdens, State Board leadership whitewashed the issue by establishing a handpicked Task Force whose conclusion was a fait accompli before its first gathering. Although an official regulation was proposed and adopted by the Board back in 2003, the confusing nature of the new rule change (i.e., allowing for a 5-point “credit” from the practical exam to the written portion) has contributed to the delays in implementing this ambiguous regulation change; this confusing rule change was an obvious ploy by the State Board President to merely remove some of the industry pressure to return all non-barbering exams to Aggregate Scoring (which currently only the barbers enjoy).
Therefore, the PBFC would like to make the following reform recommendations for the state’s troublesome licensure exam:
(a) Aggregate Scoring
Under B & P Code §7338, the Legislature recognizes the paramount importance
of hands-on skills within our industry by placing emphasis on practical abilities in the licensure exam, stating: “practical demonstrations shall prevail over the written tests” (emphasis added here). Because the beauty industry is dexterity-based, many English-as-second-language persons have thrived in our industry. However, many more qualified individuals would be able to enter the industry if the State Board (BBC) would follow the statutory emphasis on the practical portion of the exam.
In violation of State law, the former State Board of Barbering & Cosmetology adopted a Regulation in which the written portion of the exam is given equal footing with the practical, by requiring a minimum point threshold on the written portion of the exam. According to the Barbering & Cosmetology Regulation §932 (f), even if an examinee earns a 100% score on the practical portion, that examinee would still fail the overall exam if he/she did not get “at least 70 [out of 100] in the written part.”
The State Board should have struck this minimum threshold score on the written portion, instead requiring that an examinee receive an aggregate score of 300 points to pass the overall exam. Regulation §932 requires this aggregate score, but goes beyond the mark by also requiring a minimum of 70-out-of-100 on the written portion.
Although an easy “fix”, this single issue is the top priority with a vast majority of California beauty schools and their students, and yet has been consistently ignored by regulatory officials. In the early 1990s, barbers united and organized a legal threat against the State, and successfully prevented the State from moving away from Aggregate Scoring; now this same scoring standard should be applied industry wide, without the need of further litigation. Under the non-Aggregate scoring procedure, the failure rate of non-barbering exams increased by nearly 30%, where it currently hovers.
While the new State Board is arguing that the current low passage rate is indicative of the low quality of private school instructors, the sole reason for the low passage rate can be directly traced to the illegal regulation of splitting the practical and written exam scores and requiring a minimum score on each part. Any effort by this current State Board to artificially increase the requirements on private beauty school instructors to positively affect passage rates should be dubiously considered. It is yet another personal agenda non-reflective of industry realities.
Moreover, given the gender demographics of the barbering and cosmetology licensed categories (e.g., cosmetologists are approximately 90% female, whereas barbers are about 80% male), this unequal, bifurcated grading procedure for barbers and all other licensed categories (e.g., manicurists, cosmetologists/stylists, etc.) creates a system in which female examinees are disproportionately discriminated against for purposes of grading.
(b) Pre-Application and Re-exam delays
According to B & P Code §7337.5, a candidate for licensure examination who has properly applied via the “pre-application” procedure shall be given the State exam “not later than 10 working days after graduation.” The then-Bureau and now State Board have been unable or unwilling to fulfill this deadline since the inception of this statutorily mandated program, and therefore the new Board now remains out of compliance with State law. The current wait averages nearly 6 weeks, despite the fact that students are asked to tender an additional $9 to their examination fee to qualify for this streamlined 10-day guarantee procedure!
In addition, if an examinee is unsuccessful in his/her first attempt to pass the practical portion of the licensure exam, he/she will likely wait several months to be seated for another examination (due to long delays within the BBC). At the October 24, 2005 State Board hearing in Los Angeles, BBC staff indicated that the current wait for the licensure exam is approximately 5 months. Even the DMV processes tests within a day, allowing for timely re-examination!
While the PBFC originally opposed the idea of splitting the written and practical portions of the licensing exam -- for fear of exacerbating already intolerable delays -- this bifurcation could lend itself to streamlined process if an examinee is allowed to take either portion in either order, and to re-take either portion at his/her earliest convenience.
Or, more effectively, schools ought to be able to administer practical exams in-house, instead of having only two, practical-demonstration testing sites to cover the entire state (and the approximate 35,000 exams given annually). This would substantially reduce the Board’s operating costs, both in terms of leased facilities and security, which are large budget expenditures for the Board (which is currently running an operating deficit each year). All private beauty colleges are certified by the Bureau of Private Postsecondary Vocational Education and approved by the State Board of Barbering & Cosmetology, and each Community College based program has been approved by the State Board and its own district. State Board staff could help schools administer the State Board practical exams at each site, to ensure the integrity of the practical demonstrations, thereby dramatically increasing the number of exams given each year and decreasing overhead within the State Board.
Many states have adopted the national written exam and have done away with their practical exams or are asking schools to perform them in-house. This has dramatically streamlined their exam process AND solved the state-to-state reciprocity issue, both issues that this Legislature has asked the Board to consider doing to encourage professionals into our industry and state’s economy.
The Legislature ought to authorize the State Board to accept a national exam (as 32 states currently employ). This could drastically cut administrative costs for the State Board and streamline the need of Board staff to provide ongoing, content updates to the exam (as this is done by national exam companies on a regular basis). Although the State Board reports that the current national examination is out-of-date, that is simply not factually correct, as representatives of the national examination companies would be happy to explain.
As summarized in both the 1996 and 2003 Legislative Report: There have been substantial delays in providing the exam to candidates for licensure and this may have caused them to miss certain employment opportunities. (Recommendation 1, Findings D.2., p. iii, 1996 Report). Students who play by the rules and pay the necessary fees should not have to be delayed beyond legal limits to enter the beauty industry profession and begin contributing to our state’s economy.
(c) Exam Requirements
A vexing road-block being faced by many examinees has been the rigid and arbitrary decision of the BBC examiners to turn-away examinees that come to the exam site without current photographic ID for either themselves or their volunteer model. In addition, all examinees have been required to show proof of substantiated Social Security numbers before their applications for examination will be approved.
There have been numerous, heart-wrenching examples of examinees being turned away at the door for failing to have such identification, rather than allowing the candidates (or their models) to take the exam and then provide proof of identification post-exam. The BBC’s inflexibility has shown a lack of compassion, as well as a lack of ingenuity in developing alternative means to quickly and easily validate ID’s post-exam.
Shortly after the new Board was re-established in August 2002, the Board created a system by which foreign manicuring students (from Japan) could apply for and take our state’s manicuring exam, even though these same examinees will never practice a single day in California. If the State Board can devise a system by which non-California students can take our exam (contributing more to the delays of California student/apprentice applicants), surely the State Board can exercise some flexibility to our state applicants, who are often turned away from the exam site for technical and trivial reasons after waiting months to take the exam.
(d) Updating State-mandated Curriculum
Beauty licensure is possibly the only professional license that requires clock-hour credit (as opposed to competency-based curriculum). The BBC’s own 1999 Curriculum Task Force unanimously recommended that beauty schools and apprenticeship programs move away from clock-hours and toward competency-based credit, however the BBC has failed to act upon their internal Task Force recommendation to establish a competency-based, modular approach to Cosmetology coursework.
During the more recent Task Force convened to review the exam, this issue was brought up again, but quickly tabled by the Board President, Dr. Della Condon. At the very least, statutory clock-hour mandates should be amended to allow some flexibility to convert other formats of comparable value, such as credit hour as the formula currently prescribed by the National Accrediting Commission of Cosmetology Arts and Sciences (NACCAS). It is silly that a student be required to attain exactly 1,600 clock-hour credits, regardless of whether that student has completed all of the state-mandated curriculum and shows satisfactory competency; this dispirits those students that work the hardest and are the most talented. The Legislature should require the State Board to refocus the law such that each week of attendance should qualify as 40 hours of credit, which will provide each student a clear, anticipated graduation date, provided they complete their requirements and attend regularly (not exceeding maximum allowed absences).
In addition, the BBC-mandated beauty school curriculum was established two decades ago; given the ever-evolving nature of beauty services and technologies, the State-mandated curriculum is totally outdated, and therefore largely irrelevant to the skills and training necessary in today’s beauty salon. State regulators should work in concert with industry experts in updating the archaic curriculum, and there should be established procedures to easily and timely reform these standards as technological and product advances warrant. Currently, responsible schools are teaching two programs: one for compliance with the State-mandated and out-of-date curriculum (to help prepare their students for the Board exams), and another to teach their students current industry standards and practices. This lack of flexibility and evolution of school curriculum undermines the relevance of not only schools, but the integrity and value of the licensing exam, itself.
(e) Reciprocity vis-à-vis Licensure Exam
California’s beauty industry is exploding, and the demand for licensees has been rising. In an effort to encourage economic growth and fill the desperate demand for more beauty professionals, California should aggressively pursue State-to-State reciprocity agreements. Acknowledging this, the Legislature mandated the State Board to consider this option via SB 362 (codified in B & P Code §7303.2). Instead of immediately developing a streamlined process to licensure for competent and experienced professionals desirous to be part of California’s beauty industry, the State Board actually adopted an even more cumbersome process than what currently exists for out-of-staters!
The State Board’s recently adopted regulation now requires these applicants to secure and tender certified copies of their schooling transcripts (regardless of how long ago they were in school and whether their school still has such information) and be able to prove they have been actively employed in the industry for the past five years (hurdles too high for even Dr. President Della Condon, the industry-position appointed Board President, to meet if she were an out-of-state resident desirous to apply for a California license, as she has not actively practiced in the industry the past 5 years). After an out-of-state applicant has successfully retrieved a certified copy of their schooling transcript and received a notarized affidavit of an employer or other person as to the applicant’s active industry involvement the 5 prior years, then they will be subjected to the same protracted delays that California students/apprentices face to be able to sit for a State Board administered exam.
The PBFC believes that as long as the out-of-state licensee comes from a state with comparative competency and they have never had any disciplinary action against them, they should be given a California license immediately upon request and payment of the appropriate fee. Given the incredibly high demand for licensees in California as expressed overwhelmingly by salon employers throughout the state, the desire of public officials to encourage economic development, and the efficacy of our state’s current licensing exam, the Legislature should require the State Board to accept professionals applying for California licenses after an appropriate background check and receipt of a completed application and filing fee. Moving California toward adoption of a nationally-accepted examination (as 32 states currently do) would substantially assist in this endeavor.
Duplicative regulations confuse and frustrate those attempting compliance, as well as create artificial and unnecessary costs/regulations. These costs are eventually passed down to clientele, beauty school students, and apprentices, thereby hurting not only consumers, but the overall industry, as well.
As emphatically stated in the 1996 JLSRC Report: “The FDA, Cal-OSHA, Cal-EPA, the Department of Health Services and local health agencies, all have individual jurisdiction over the use of toxic substances and chemicals within these establishments, preventing the spread of communicable diseases, and enforcing health and safety laws. They can also inspect these establishments, if necessary, and take appropriate action to ensure they are in conformance with the applicable laws” (Recommendation 2, Finding 4, p. vi). And: “There are other occupations that have equal or greater risk of transmitting communicable diseases which are not regulated to the same degree as cosmetologists and barbers” (Recommendation 2, Finding 7, p. vii).
The old adage that ‘no man can serve two masters’ is strongly vindicated by the duplicative regulatory climate that beauty school administrators have had to endure over the past few years. The dual oversight role of the BBC and the Private Postsecondary Bureau (BPPVE) over beauty schools has become intolerable, placing schools under the uncomfortable and unnecessary position of not knowing which regulatory body has what authority.
In recent years, both the then-Bureau of B & C and the BPPVE Bureau announced and instituted (and in more than one occasion even reversed) several, unprecedented rules for beauty schools to follow. Some were done in concert between both Bureaus, while others were evidently independent decisions. Regardless, their collective impact has fostered a climate of confusion and frustration among responsible school administrators intent to comply with each, new State rule. Less than ten years ago, there were over 350 beauty schools … today there is less than half that number, even though demand for licensed graduates have only increased since that time!
The PBFC recommends that the BPPVE should be given clear statutory authority as the primary regulator of beauty colleges, especially in areas of school site and annexation approvals and instructor qualifications/certification.
Moreover, during the past few years, BBC Inspectors have begun monetarily fining school owners for students mistakes made in a classroom setting. This is totally inconsistent with B & P Code § 7313 (b), in which the statutory process clearly invests fining authority in the BPPVE and only “notices of violation” in the BBC. This makes sense, given the education environment in beauty colleges in which the BPPVE has its expertise, as opposed to commercial salons in which BBC Inspectors are tasked with protecting consumers.
In an effort to justify their right to begin monetarily fining school owners, the BBC sponsored an amendment to a bill that would have changed “notices of violation” to “citations” in §7313 (b) [See legislative history on SB 1957 (Polanco), April 4, 2002 version]. When the PBFC learned of this amendment, we explained to the author the significance of this small amendment, and he immediately removed it [see April 18, 2002 version]. This clear legislative history emphatically illustrates tacit admission on the part of the BBC that they knew they didn’t have fining/citation authority in beauty school settings, even though they now argue they do have this implicit authority.
Only the BPPVE should have the authority to issue monetary fines to school owners or staff. The BBC’s role should be limited to approving schools following the more extensive review and certification of the BPPVE, setting broadly worded curriculum standards, and acting in cooperation with school administers to educate their students about BBC inspection procedures and standards. Beauty colleges are learning environments, not commercial salons, and therefore an education-centered DCA bureau should continue to have primary jurisdiction and sole authority for issuing citations in such settings. This needs to be statutorily clarified, given the current practice of both the BBC and BPPVE to issue fines in private beauty schools.
Finally, schools should only be required to obtain a single identification, code number from both the BPPVE and the BBC. The current process requires new private beauty colleges to first go through an extensive review and approval with the BPPVE, and then after receiving BPPVE certification (and code number), apply for and begin the whole process again to seek the approval of the BBC (and the BBC’s different ID number).
Because of the typical delays in any BBC application process, new schools are being prevented from opening for business sometimes months after the BPPVE’s approval; for students anxious to transfer prior earned clock-hour credit to the new site for purposes of applying for the licensing exam, this poses serious problems while they wait for the new site to receive BBC approval and a code number for the transfer student to use to qualify for the licensing exam. Hence, the BBC should simply utilize the BPPVE code numbers and allow students who transfer to a new and BPPVE-approved school to qualify for the exam using that BPPVE code number, thereby removing another time-consuming delay to licensure.
There are many unintended results from costly regulations and policies, not least of all are the unintended incentives to go underground. Every existing and all proposed laws/regulations should be closely scrutinized for the unintended consequence of encouraging more underground activity.
The PBFC supports photographic licensure (which is in the process of being implemented), cooperative oversight of all industry sectors by Federal, State and municipal officials, and clear and equitable standards applied to all industry professionals and entities. In addition, unnecessary and burdensome barriers to industry participation should be immediately removed (as discussed previously and further below).
If there isn’t a consistent application of law/regulations upon all salons and licensees, many will move to the path of least resistance, even if it means skirting the law. Illegal activities threaten the health/safety of not only consumers, but our industry, as well.
In recognition of this fact, AB 2449 (Correa), chaptered three years ago, requires state agencies to begin tracking the ever-expanding Booth Rental sector of California’s beauty industry. The new law specifically requires the BBC and FTB to correlate Booth Renters’ health and safety violation statistics with the FTB’s tax-evasion data, and to report back to the Assembly and Senate Business & Profession Committees with their findings by 2008.
It’s imperative that the Board ensure that these governing agencies follow this mandate, so that the Legislature can better understand the consumer protection implications of this rising industry sector. To-date, the current Board leadership has been totally dismissive of this mandate, although recently Board staff began including some of AB 2449’s requirements in the licensing renewal applications.
In addition, the new State Board of Barbering & Cosmetology should promulgate clarifying regulations requiring Booth Renters to act like real businesses, including licensing their booths as separate business entities (i.e., requiring an Establishment License) and to conform to county/city ordinances relative to all businesses within their jurisdictions. This will have an immediate and positive impact on the standards and practices of these salons, and increase revenues to the California treasury as more and more Booth Renters are given incentives to become tax compliant.
Currently, 20 states require Booth Renters to have their own, separate license (beyond their barbering/cosmetology license), and one state (Pennsylvania) actually even outlaws the practice of Booth Rental. According to industry statistics, California salons (of which there are nearly 35,000 statewide) have become predominantly Booth Renter facilities, with only 10-25% of all salons being traditional, employer-employee structured enterprises. This dramatically growing phenomenon must be addressed by state regulators; without a consistent, statewide standard, it will be left to cities/counties to determine the reality that Booth Renters are independent business owners, creating a patchwork of inconsistent local licensing requirements from community to community and county to county.
The Department of Industrial Relations will now be requiring all apprentice employers to carry Workers’ Comp for their apprentices and show proof they are covering pay-roll taxes; this could conceivably preclude the use of apprenticeship programs in Booth Rental salons (which, again, account for over 75% of all California salons), so it is high-time the State Board address this growing phenomenon.
The PBFC strongly supports the entrepreneurial spirit of our industry and has not taken a position against Booth Renting, per se; however, the PBFC recognizes the growing list of problems associated with this rapidly rising industry sector, and therefore strongly encourages the Board to apply the law equally to all of its industry participants, including those that choose to operate independent business entities within booth-rental salon settings.
By requiring Booth Renters to identify themselves through some sort of separate license (e.g., a pseudo-Establishment License), state inspectors and city/county administrators and code enforcement officials will understand which business entities they are dealing with when they enter such booth-rental salons; and the public will have a keener awareness of the fact that though they are in a single building, there are several independent businesses operating therein, and their final legal recourse if something goes wrong with their service may be the individual Booth Renter, and not the building landlord.
As more and more regulatory barriers are established or maintained, unlicensed activities will continue to rise. To remove and lessen some of the misdirected and unnecessary barriers to the industry, we recommend the following reforms:
SB 362 requires the new Board to develop a means of licensing competent, out-of-state licensees desirous of becoming licensed in California. The PBFC strongly supports this endeavor, especially in light of our State’s recent economic doldrums and our industry’s strong need for even more qualified stylists.
As described earlier, California should offer a streamlined approach for out-of-state licensees to come to California and immediately begin working. One possible approach could be to allow for a six-month, provisional license to a foreign-state professional. Either state regulators or a private, beauty association could review the candidates background and provide for the temporary license, allowing the qualified immigrant the opportunity to move to our state and immediately begin contributing to our economy, while waiting for the BBC to issue an official license.
However, the out-of-state licensee should not have to subject themselves to the state exam process, given the intolerable delays that have plagued this process of several years, provided the out-of-state licensee comes from a state with comparative competency and they have never had any disciplinary action against them.
As described earlier, the new State Board actually went in the opposite direction with their recent rule adoption for Licensure by Endorsement, requiring even more paperwork and red-tape. The Legislature should be clearer and more emphatic about its intent to welcome competent and disciplinary-free licensees to our state’s economy.
Besides the several recommendations discussed above (see Examination/School Reform), the State should also consider reducing the number of clock-hour credits for a Cosmetology license (if the State decides against moving toward a competency-based curriculum). Roughly 80% of states that utilize clock-hour credit require 1,500 hours or less for their Cosmetology course, while California has one of the highest levels at 1,600 hours.
The State of California should, at least, establish a new licensing category for hair-dressers (studies show that over 90% of Cosmetologists have no intention of doing anything but hair cutting/styling, so there is no need for them to be trained/licensed in skin/manicuring work). There has been many efforts by industry leaders to get a 1,200-hour hair-dressing license and program, but the current State Board leadership counters that this is essentially what the “barbers” license covers; besides the gender connotations, hair styling goes well beyond barbering services, and so this is an inadequate excuse to avoid implementing a new, streamlined licensing category for hair stylists.
As well-summarized in the 1996 JLSRC Legislative Report: The number of hours and curricula required by the board in a cosmetology and/or barbering school (up to 1600 hours) appears to be an artificial barrier to entering into these professions, and there is no evidence provided which justifies the need for such lengthy training in these particular areas of specialty (see “Findings”, p. ii). This is why SB 362 required the State Board to study the current 1,600-hour program. No change or recommended reform has been forthcoming from the State Board, despite this legislated mandated to study this issue and report back to the Legislature.
In the mid-1990s, the Legislature passed a law creating an Externship program for
Cosmetology students. Although the Legislature’s intent was to provide students with an opportunity to gain valuable, on-the-job training, the law was undermined by onerous regulations from the past Board of Barbering and Cosmetology. Essentially, the regulations imposed so many requirements upon employers that many became unwilling to provide cosmetology students an opportunity to extern in their salon.
By increasing the amount of credit a student can receive by performing an externship; by increasing the amount of hours/week that a student may take advantage of the program; and by allowing employers, if they prefer, to compensate productive externs, the Externship Program will be greatly strengthened, thereby creating more opportunities for students to gain actual, salon experience during their schooling, and allow students financial assistance if they are found to be compensation-worthy by their sponsoring salon during their externship experience.
While some of these issues have been addressed by the Board in response to SB 362’s mandate to study the current Externship program, unfortunately new proposed burdens to the current program have also been adopted by the State Board (e.g., each Extern will now have to have one, specifically assigned and BBC-approved “trainer,” which has yet to be fleshed out by the State Board).
In addition to the artificial restrictions placed on beauty school students in the Externship program, beauty apprentices also must traverse a host of burdensome barriers before they can get “real-world” experience, as described earlier. Of the 200 apprenticeship occupations, only three require an apprentice license (one being the BBC-required apprenticeship license); in addition, as outlined earlier, there is pre-training required by the BBC before one can even begin the apprenticeship, averaging a cost of $225 for the coursework, $25 for the BBC license fee, and 3-5 months waiting for the BBC to approve the initial application. The BBC’s role at the initial stages of the beauty apprenticeship role should be minimized, allowing the DIR to take primary responsibility in initially approving and placing the apprentice to a qualified salon. Happily, on this single, SB 362 mandated “study” issue, the new State Board positively responded to the Legislature’s challenge by working with industry leaders and DIR, and therefore the PBFC is hopeful the Apprenticeship issue will be adequately addressed before the BBC’s sunset date arrives.
The Professional Beauty Federation of California prefers to maintain a State Board structure (as opposed to a bureaucratic-led Bureau). That is why the industry felt so compelled to firmly and unequivocally detail the current shortcomings of this current Board, in the hopes that the Legislature and Administration can correct its many problems before allowing the Board structure to simply sunset in 2007. Although its current track record likely disqualifies it for sunset extension consideration, we believe that clear statutory direction and reforms and further return-and-report mandates, as recommended in this report, can rescue this troubled State Board from its current drift.
The PBFC would be grateful for the opportunity to help shape the regulations and policies recommended in this report. Our broad-based Industry Advisory Council, our Board of Directors and Officers, and our Membership, at-large, stand ready and willing to assist in any capacity the Legislature, the Department of Consumer Affairs, and the new Board of Barbering & Cosmetology so desires.
Sincerely,
FRED JONES
PBFC General Counsel & Registered Lobbyist
Enclosure: California Stylist May 2005 Op/Ed