Bill Summary – FastDemocracy

The Florida Senate
                    BILL ANALYSIS AND FISCAL IMPACT STATEMENT
                (This document is based on the provisions contained in the legislation as of the latest date listed below.)
                      Prepared By: The Professional Staff of the Committee on Regulated Industries
 BILL:            SB 1028
 INTRODUCER:      Senator Stewart
 SUBJECT:         Professional Licensing Requirements for Barbers and Cosmetologists
 DATE:            March 20, 2023                  REVISED:
            ANALYST                     STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Oxamendi                           Imhof                                  RI             Favorable
2.                                                                           CJ
3.                                                                           RC
     I.   Summary:
          SB 1028 prohibits a regulatory board within the Department of Business and Professional
          Regulation (DBPR) from considering a criminal conviction, or any other adjudication, for crimes
          more than three years before the date the application is received by a board, as grounds for denial
          of a barber or cosmetologist or cosmetology specialist license. However, this prohibition does
          not apply if the applicant was convicted of a crime at any time during the three-year period
          immediately preceding the application. Current law prohibits the DBPR’s regulatory boards from
          considering a conviction, or any other adjudication, as an impairment to licensure for a crime
          more than five years before an application is received by a board.
          Under current law and the bill, a DBPR regulatory board may consider a criminal background
          older than three years if the background includes a sexual predator crime under s. 775.21, F.S., or
          a forcible felony under s. 776.08, F.S., or is related to the profession’s practice.
          The bill requires the DBPR’s regulatory boards to approve education program credits offered to
          inmates in any correctional institution or correctional facility as vocational training or through an
          industry certification program for the purpose of satisfying applicable training requirements for
          licensure as a barber or cosmetologist.
          The bill takes effect on July 1, 2023.
BILL:     SB 1028                                                                                                Page 2
    II.    Present Situation:
           Department of Business and Professional Regulation
           Section 20.165, F.S., establishes the organizational structure of the DBPR, which has 11
           divisions tasked with the regulation of several professions and businesses.1
           Division of Professions
           Chapter 455, F.S., provides the general powers of the DBPR and sets forth the procedural and
           administrative framework for all of the professional boards housed under the DBPR as well as
           the Divisions of Certified Public Accounting, Professions, Real Estate, and Regulation. 2 The
           DBPR may engage in the regulation of professions “only for the preservation of the health,
           safety, and welfare of the public under the police powers of the state.”3 Regulation is required
           when:
            The potential for harming or endangering public health, safety, and welfare is recognizable
               and outweighs any anticompetitive impact that may result;
            The public is not effectively protected by other state statutes, local ordinances, federal
               legislation, or other means; and
            Less restrictive means of regulation are not available.4
           However, “neither the department nor any board may create a regulation that has an
           unreasonable effect on job creation or job retention,” or a regulation that unreasonably restricts
           the ability of those who desire to engage in a profession or occupation to find employment.5
           When a person is authorized to engage in a profession or occupation in Florida, the DBPR issues
           a “permit, registration, certificate, or license” to the licensee.6
           In Fiscal Year 2021-2022, there were 506,210 active licensees in the Division of Professions,
           including:7
            Architects and interior designers;
            Asbestos consultants and contractors;
            Athlete agents;
            Auctioneers;
            Barbers (27,073 active and 97 inactive);8
1
  See s. 20.165, F.S, creating the divisions of Administration; Alcoholic Beverages and Tobacco; Certified Public
Accounting; Drugs, Devices, and Cosmetics; Florida Condominiums, Timeshares, and Mobile Homes; Hotels and
Restaurants; Professions; Real Estate; Regulation; Service Operations; and Technology.
2
  See s. 455.203, F.S. The DBPR must also provide legal counsel for boards within the DBPR by contracting with the
Department of Legal Affairs, by retaining private counsel, or by providing DBPR staff counsel. See s. 455.221(1), F.S.
3
  Section 455.201(2), F.S.
4
  Id.
5
  Section 455.201(4)(b), F.S.
6
  Section 455.01(4) and (5), F.S.
7
  See Department of Business and Professional Regulation, Annual Report, Fiscal Year 2021-2022, at
http://www.myfloridalicense.com/DBPR/os/documents/Division%20Annual%20Report%20FY%2021-22.pdf (last visited
Mar. 13, 2023).
8
  Id.
BILL:   SB 1028                                                                                                        Page 3
            Building code administrators and inspectors;
            Community association managers;
            Construction industry contractors;
            Cosmetologists (281,228 active and 1,295 inactive);9
            Electrical contractors;
            Employee leasing companies;
            Geologists;
            Home inspectors;
            Harbor pilots;
            Landscape architects;
            Mold-related services;
            Talent agencies; and
            Veterinarians.
         Sections 455.203 and 455.213, F.S., establish general licensing authority for the DBPR,
         including the authority to charge license fees and license renewal fees. Each board within the
         DBPR must determine by rule the amount of license fees for each profession, based on estimates
         of the required revenue to implement the regulatory laws affecting the profession.10
         Barbering
         The term “barbering” in ss. 476.014 through 476.254, F.S, (the Barbers’ Act) includes any of the
         following practices when done for payment: shaving, cutting, trimming, coloring, shampooing,
         arranging, dressing, curling, or waving the hair or beard or applying oils, creams, lotions, or
         other preparations to the face, scalp, or neck, either by hand or by mechanical appliances. 11
         An applicant for licensure as a barber must pass an examination. To be eligible to take the
         examination, the applicant must:
          Be at least 16 years of age;
          Pay the application fee; and
          Have held an active valid license in another state for at least one year,12 or have a minimum
            of 900 hours of specified training.13
         Alternatively, a person may apply for and receive a “restricted license” to practice barbering,
         which authorizes the licensee to practice only in areas in which he or she has demonstrated
         competency pursuant to rules of the Barbers’ Board.14
9
  Id.
10
   Section 455.219(1), F.S.
11
   See s. 476.034(2), F.S. The term does not include those services when done for the treatment of disease or physical or
mental ailments.
12
   Licensure by endorsement may also allow a practitioner holding an active license in another state or country to qualify for
licensure in Florida. See s. 476.144(5), F.S.
13
   See s. 476.114(2), F.S. The training must include, but is not limited to the completion of services directly related to the
practice of barbering at a licensed school of barbering, a public school barbering program, or a government-operated
barbering program in Florida.
14
   See s. 476.144(6), F.S.
BILL:   SB 1028                                                                                                          Page 4
         Cosmetology
         Chapter 477, F.S., governs the licensing and regulation of cosmetologists, nail specialists, facial
         specialists, full specialists, and related salons in the state. The Board of Cosmetology, within the
         DBPR’s Division of Professions, processes license applications, reviews disciplinary cases, and
         conducts informal administrative hearings relating to licensure and discipline.15
         A “cosmetologist” is a person who is licensed to engage in the practice of cosmetology.16
         “Cosmetology” is “the mechanical or chemical treatment of the head, face, and scalp for
         aesthetic rather than medical purposes, including, but not limited to, hair shampooing, hair
         cutting, hair arranging, hair coloring, permanent waving, and hair relaxing for compensation.
         This term also includes performing hair removal, including wax treatments, manicures,
         pedicures, and skin care services.”17
         Certain persons who apply cosmetic products (makeup) are exempt from ch. 477, F.S., under
         limited conditions, including application of such products in photography studio salons, in
         connection with certain retail sales, or during the production of qualified films.18 In addition,
         persons who provide makeup in a theme park or entertainment complex to actors and others or
         the general public are exempt from licensing requirements.19
         An applicant for a cosmetologist license must pass a licensure examination and:
          Be at least 16 years of age;
          Submit an application with the applicable fee and examination fee; and
          Be licensed in another state or country for at least one year, or received 1,200 hours training,
            including completion of an education at an approved cosmetology school or program.20
         A “specialist” is “any person holding a specialty registration in one or more of the specialties
         registered under [ch. 477, F.S.].”21 The term “specialty” is defined as “the practice of one or
         more of the following:
          Manicuring, or the cutting, polishing, tinting, coloring, cleansing, adding, or extending of the
             nails, and massaging of the hands. This term includes any procedure or process for the
             affixing of artificial nails, except those nails which may be applied solely by use of a simple
             adhesive.
          Pedicuring, or the shaping, polishing, tinting, or cleansing of the nails of the feet, and
             massaging or beautifying of the feet.
          Facials, or the massaging or treating of the face or scalp with oils, creams, lotions, or other
             preparations, and skin care services.”22
15
   See Department of Business and Professional Regulation, Cosmetology, available at
http://www.myfloridalicense.com/DBPR/cosmetology/ (last visited Feb. 7, 2018).
16
   See s. 477.013(3), F.S.
17
   See s. 477.013(4), F.S. A licensed cosmetologist is not required to register separately as a hair braider, hair wrapper, body
wrapper, or specialist. See note 40, supra.
18
   See ss. 477.013(11), 477.0135(1)(f), and 477.0135(5), F.S.
19
   See s. 477.0135(6), F.S.
20
   See ss. 477.019(2) and (4), F.S.
21
   See s. 477.013(5), F.S.
22
   See s. 477.013(6), F.S.
BILL:   SB 1028                                                                                                           Page 5
         An applicant for a specialist license must:
          Be at least 16 years of age;
          Obtain a certificate of completion from an approved specialty education program; and
          Submit an application for registration to the DBPR with the registration fee.23
         Licensing and Criminal Background
         Section 112.011, F.S., outlines general guidelines for considering criminal convictions during
         licensure determinations. Generally, a person may be denied a professional license based on his
         or her prior conviction of a crime if the crime was a felony or first-degree misdemeanor that is
         directly related to the standards determined by the regulatory authority to be necessary and
         reasonably related to the protection of the public health, safety, and welfare for the specific
         profession for which the license is sought.24 Notwithstanding any law to the contrary, a state
         agency may not deny an application for a license based solely on the applicant’s lack of civil
         rights.25
         License Applicant’s Criminal Background
         The DBPR’s regulatory boards, or the DBPR if there is no board, may deny a license application
         for any person whom it finds guilty of any of the grounds for discipline set forth in s. 455.227(1),
         F.S., or set forth in the profession’s practice act.26 Specifically, the regulatory board, or the
         DBPR if there is no board, may deny a license application for any person having been:
                  convicted or found guilty of, or entering a plea of guilty or nolo
                  contendere to, regardless of adjudication, a crime in any jurisdiction which
                  relates to the practice of, or the ability to practice, a licensee’s
                  profession.27
         Chapter 476, F.S., relating to barbers, and ch. 477, F.S., for cosmetology, do not directly
         reference the criminal background of an applicant as a basis for a license denial. These practice
         acts reference the criminal background provisions in s. 455.227(1), F.S., as a basis for a license
         denial.28
         Section 455.227, F.S., does not specifically require the DBPR or the applicable regulatory board
         to consider the passage of time since the disqualifying criminal offense before denying or
         granting a license.
         However, s. 455.213(3), F.S., limits the period for which a regulatory board may consider an
         applicant’s criminal conviction,29 or any other adjudication, as an impairment to licensure to five
23
   See s 477.0201, F.S.
24
   Section 112.011(1)(b), F.S.
25
   Section 112.011(1)(c), F.S.
26
   Section 455.227(2), F.S.
27
   Section 455.227(1)(c), F.S.
28
   See s. 476.204(1)(h), F.S., relating to barbers, and s. 477.029(1)(h), F.S., relating to cosmetology.
29
   Section 455.213(3)(b)1., F.S., defines the term “conviction” to mean a determination of guilt that is the result of a plea or
trial, regardless of whether adjudication is withheld.
BILL:   SB 1028                                                                                                     Page 6
         years before an application is received by a board. A regulatory board may consider a criminal
         conviction or other adjudication older than five years if the background:
          Includes a sexual predator crime under s. 775.21, F.S., or a forcible felony under s. 776.08,
            F.S.; or
          Is related to the profession’s practice.
         The DBPR’s boards must list on their websites the crimes that, if committed by an applicant, do
         not impair a person’s qualifications for licensure, and update the list annually. Beginning
         October 1, 2019, the boards were required to compile a list of crimes that, although reported by a
         license applicant, are not used as a basis for denial. The list must identify the crime reported and
         the date of conviction, finding of guilt, plea, or adjudication entered, or the date of sentencing for
         each such license application.30
         Each DBPR board must also compile a list of crimes that have been used as a basis for a license
         denial during the previous two years. Starting October 1, 2019, with quarterly updating, the
         boards must compile a list indicating each crime used as a basis for a license denial. For each
         crime listed, the board must identify the date of conviction, finding of guilt, plea, or adjudication
         entered, or date of sentencing. Such denials must be available to the public upon request.31
         Section 455.213, F.S., also:
          Permits a person to apply for a license while under criminal confinement (incarceration) or
            supervision;32
          Requires a licensing agency to permit an applicant who is incarcerated or under supervision
            to appear by teleconference or video conference at a board or agency license application
            hearing;33 and
          Requires the Department of Corrections to cooperate and coordinate with the board or
            agency to facilitate the applicant’s hearing appearance in person, by teleconference, or by
            video conference.34
         Vocational Training in Correctional Facilities
         The Florida Department of Corrections Bureau of Education partners with state colleges,
         technical colleges, and community education organizations to provide vocational training in 37
         trades to incarcerated inmates.35 Included in these vocational programs are barbering programs at
30
   Section 455.213(3)(d), F.S. The Barber’s Board and the Board of Cosmetology have posted this information on the
DBPR’s website. The information for each profession is under the “Apply for a License” below the heading “Prior Criminal
Offenses” at the following Internet links. See, the Barber’s Board, http://www.myfloridalicense.com/DBPR/barbers/#apply
(last visited Mar. 16, 2023). See, the Board of Cosmetology, http://www.myfloridalicense.com/DBPR/cosmetology/#apply
(last visited Mar. 16, 2023).
31
   Section 455.213(3)(e), F.S., and Id.
32
   Section 455.213(3)(c)1., F.S.
33
   Section 455.213(3)(c)2., F.S.
34
   Section 455.213(3)(c)3. and 4., F.S.
35 Florida Department of Corrections, Bureau of Education, http://www.dc.state.fl.us/dev