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Professional Beauty Federation of California's
Original Report to THE NEW STATE BOARD OF BARBERING & COSMETOLOGY
August 11, 2003

Introduction

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 the barbering and cosmetology officials. 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, 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 this second review process. Their frustrations with the BBC lack of needed reforms lead to the enactment of SB 1482 (Polanco), which did away with the BBC and 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.

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.

However, the PBFC would like 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 must make sure that the rule of law -- federal, state and municipal -- is 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 is 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.

The spirit of the 1996 Sunset Report and the specific issues of concern mandated to be studied by the 2003 Sunset Report should guide State officials when they are attempting to enforce barbering and cosmetology rules and regulations, especially during state regulators’ cite and fine inspections. Once a standard has been accepted by the industry and adopted by policy enforcers, regulators must then equitably and consistently apply the rules to each industry sector and all licensed professionals, thereby preserving an equal standard for all to follow.

The PBFC would like to present to the new Board specific areas of concern and offer corrective recommendations; you will note that many are consistent with the newly adopted, 2003 Sunset Review Report, codified in this year’s SB 360 (Figueroa).

Summary of Recommendations

1. Examination Reform:

Licensure examination must be reformed, including: (a) returning to aggregate scoring of the Cosmetology exam, (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, and (e) exempting/streamlining the licensure process for qualified U.S./foreign candidates through state-to-state reciprocity.

2. Capricious/Duplicative Regulation:

With the advent of the Bureau of Private Postsecondary Vocational Education (BPPVE) and its ambiguous, dual role overseeing BBC-regulated 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 new State Board encourage the Legislature to remove the BPPVE from the beauty industry, entirely, and allow school administrators and students to answer to just one master, i.e., the new State Board of Barbering & Cosmetology (hereafter, "BBC"). In addition, the duplicative role of the Department of Industrial Relations and the BBC over the apprenticeship program should seriously be reconsidered; beauty apprenticeship is the only trade within DIR to have two regulatory bodies requiring pre-approval before the apprentice may initiate work (i.e., DIR and the BBC). The DIR should be solely responsible at the outset of beauty apprenticeships, with the BBC playing only an ongoing, oversight role.

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 and responsible schools will welcome State inspections, 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).

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.

Explanation of Recommendations

Examination and School Reform

The former Bureau of Barbering & Cosmetology’s management and grading of beauty licensure examinations placed unnecessary hurdles to entry into the profession; neither consumer protection nor industry growth have benefited from these artificial barriers to licensure. Therefore, the PBFC makes the following reform recommendations for the state’s troublesome licensure exam:

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 Bureau 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 Legislature should strike 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 has been consistently ignored by regulatory officials. In the mid-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.

Pre-Application and Re-exam delays

According to B & P Code §7337.5, a candidate for licensure examination who has properly applied via the "preapplication" procedure shall be given the State exam "not later than 10 working days after graduation." The then-Bureau had 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.

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). Prior to the 1996 Sunset Review, the average wait for re-examination was only six-to-eight weeks! Even the DMV processes tests within a day, allowing for timely re-examination! The move to split the written and practical portions should lend itself to streamlining needless delays, especially if an examinee is allowed to take either portion in either order, and to re-take either portion at his/her earliest convenience.

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).

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 who come to the exam site without proper, 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.

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.

In addition, the BBC established beauty school curriculum two decades ago; given the ever-evolving nature of beauty services and technology, the State-mandated curriculum is totally outdated, and therefore largely irrelevant to the skills and training necessary in today’s beauty industry. State regulators should work in concert with industry leaders in updating the archaic curriculum, and there should be established procedures to easily and timely reform these standards as technological and product advances warrant.

Reciprocity

California’s beauty industry is exploding, and the demand for licensees has dramatically risen. 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. The new State Board of Barbering & Cosmetology should immediately begin developing streamlined avenues to licensure for competent and experienced professionals desirous to be part of California’s beauty industry, as mandated by SB 360.

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).

Duplicative Regulations

Schools: BBC/BPPVE

The old adage that ‘no man can serve two masters’ is strongly vindicated by the duplicitous 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 half that number!

The BBC has the following statutory and regulatory authority over all beauty schools: they control curriculum for all beauty schools; establish the equipment and facility standards for each school; inspect all sites; fine schools for public health and safety violations; approve all school sites; license instructors; monitor and approve student training and credit; and design and implement the State Licensure Exam. Given this comprehensive oversight, why should the BPPVE have any role over beauty schools?

Moreover, beauty schools are unique in the private, postsecondary education environment. Our Cosmetology students are full-time, clocking over 35 hours of class-work every week over the course of 10 straight months (unlike most trade school students, who merely attend class a few hours a week, usually in a night-class setting). Our students are prohibited from earning money in the beauty industry while in school ("externs" are explicitly prohibited from pay) and -- given the full-time nature of the curriculum -- are totally immersed in school during their education (again, as opposed to part-time "tech" school students). Our students are hands-on, dexterous artists, not academics. Therefore, the relationship that beauty school students have with their schools is qualitatively different from the vast majority of postsecondary institutions that the BPPVE regulates.

Finally, there is an intrinsic disparity built into the system in which the BBC regulates all beauty school settings (i.e., both private and public), yet the BPPVE only oversees private institutions. This places private beauty schools at a disadvantage to Community College based programs.

The PBFC strongly recommends that the BPPVE should be removed from overseeing any beauty school operation, in recognition of the fact that the BBC has totally occupied every conceivable regulatory function over the beauty school sector and in light of the unique nature of beauty school students and settings. The PBFC is confident that the BPPVE’s time and resources could be better spent over non-beauty private schools, which represent the vast majority of trade schools regulated by this body.

Apprenticeship: BBC/DIR

Similarly, beauty apprenticeship programs are faced with duplicative regulatory oversight – this time, between the BBC and the Department of Industrial Relations (DIR).

Apprentices are dually monitored by the BBC and the DIR (via the Office of Apprenticeship Standards), and it is the BBC that creates all of the initial delays. Barbering & Cosmetology Regulation §914 requires the BBC to provide apprenticeship licensure within 35 days of receiving a completed apprenticeship application (or to notify the applicant of any deficiencies within 10 days of receipt). The current turn-around time for the BBC to issue approval now exceeds 90 days, while the Bureau typically does not inform an applicant of a deficiency before 60 days have elapsed since they received the original application.

This unnecessary and illegal delay causes extreme economic hardship on all apprentice candidates, who have already: (a) paid out-of-pocket for the BBC-mandated pre-apprentice training course (40 hours), (b) acquired an apprenticeship sponsor, (c) filled-out and submitted DIR apprenticeship applications, and (d) acquired a Master Trainer and secured a salon willing to provide the on-the-job training.

The new Board should keep in mind that most beauty apprentices decide to pursue licensure via an apprenticeship program (rather than seek licensure through a Cosmetology school) because they cannot afford a school’s tuition (and the full-time, non-paid requirements hoisted upon all beauty school students, as discussed above). Therefore, the BBC’s inexcusable delay falls heaviest on such apprentices.

The PBFC strongly suggests that the BBC should only have an oversight responsibility, not a pre-approval role, thereby freeing-up the DIR to allow qualified apprentices and their program sponsors to initiate the program without undue delay (as the DIR is able to do with all of the other apprentice trades they currently oversee).

Unlicensed Activity

There are many unintended regulations and policies that fuel the incentives to go underground. In addition to the various, artificial barriers to entry into the profession discussed earlier and in more detail to come, other examples include the fact that BBC does not distinguish between active licensees and those on inactive status and that booth renters are not considered licensed establishment owners.

The PBFC’s primary goal is to raise the standards and professionalism of California’s beauty industry, and therefore we will continue to work with State policy-makers and enforcers in establishing and maintaining the highest standards, while also ensuring compliance. 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, 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 below).

Level Playing Field

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 our industry, but consumers, as well.

In recognition of this fact, AB 2449 (Correa), chaptered two 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.

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.

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.

Barriers to Entry

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:

Reciprocity and Foreign Licensure

SB 360 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 economic doldrums and our industry’s strong need for even more qualified stylists.

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 -- provided the beautician secures a sponsoring employer and only works for that specific employer during the provisional license period. 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.

State regulators must be much more aggressive in establishing state-to-state and state-to-foreign county reciprocity agreements. Once the Board establishes clear, minimum standards for out-of-state licensees (i.e., foreign schooling, industry experience, etc.), qualified out-of-state professionals should only have to follow a streamlined approach to receiving California licensure. Special scrutiny, however, should be paid to the qualifications of foreign nationals, as out-of-country training/licensing standards vary widely.

School Reforms

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 the highest level at 1,600 hours.

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).

Externships/Apprenticeship Barriers

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 Board of Barbering and Cosmetology. Essentially, the regulations imposed so many requirements upon employers that they 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 strengthen, 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.

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. 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.

Conclusion

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 new Board of Barbering & Cosmetology so desires.

End of original report