HomeMy WebLinkAbout02 CA 2011-006, ORD. NO. 1407-BODY ARTAgenda Item 2
Reviewed:
AGENDA REPORT City Manager
Finance Directo N/A
MEETING DATE: NOVEMBER 1, 2011
TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: CODE AMENDMENT 2011-006 (ORDINANCE NO. 1407) -BODY ART
SUMMARY:
On September 9, 2010, the Ninth Circuit Court of Appeals decided Anderson v. City of Hermosa
Beach and held that the process and business of tattooing are pure forms of expression fully
protected by the First Amendment. According to the Court, although the City of Hermosa Beach
had significant health and safety interests in regulating the tattoo parlors, a complete prohibition
was unreasonable because it was substantially broader than necessary to achieve the city's
health and safety goals.
Tattoo establishments are not currently listed as permitted uses in the Tustin Zoning Code.
Because of the practical and legal constraints placed upon the City by the Anderson v. City of
Hermosa Beach case, Code Amendment 2011-006 is proposed to establish body art facilities,
including tattoo establishments, as permitted uses within the City of Tustin Retail Commercial
(C-1 ), Central Commercial (C-2), Heavy Commercial (C-3), and Commercial General (CG)
Zoning Districts, subject to operational requirements, and establish that all body art practitioners
practicing at such facilities shall be licensed.
RECOMMENDATION:
That the Tustin City Council introduce and have first reading of Ordinance No. 1407, approving
Code Amendment (CA) 2011-006, amending Tustin City Code Section 4140 to regulate the
inspection of body art facilities; amending Section 3141 to add definitions pertaining to body art;
amending Sections 3651-3654 pertaining to a body art permit; and, amending Section 9232b to
permit body art facilities in certain commercial zones (Attachment A).
FISCAL IMPACT:
Ordinance No. 1407 is aCity-initiated project. There are no direct fiscal impacts anticipated as a
result of adopting this ordinance.
BACKGROUND
On September 9, 2010, the Ninth Circuit Court of Appeals decided Anderson v. City of Hermosa
Beach (Attachment B). In brief, the Court held that the process and business of tattooing are
pure forms of expression fully protected by the First Amendment and that Hermosa Beach's
total ban on tattoo parlors in the city was an unconstitutional restriction on free expression
because it was not a reasonable "time, place, and manner" restriction. According to the Court,
CA 2011-006 (Ordinance No. 1407)
November 1, 2011
Page 2
although the city had significant health and safety interests in regulating the tattoo parlors, a
complete prohibition was unreasonable because it was substantially broader than necessary to
achieve the city's health and safety goals.
Tattoo establishments are not listed as permitted uses in the Tustin Zoning Code, and the
Tustin City Code contains no specific provisions regulating the location, development, or
operational characteristics of establishments where tattoos are placed on individuals. In this
regard, the provisions of Tustin's Code are similar to those of Hermosa Beach's municipal code
found unconstitutional by the Ninth Circuit in Anderson v. City of Hermosa Beach.
To prevent the establishment of unregulated tattoo establishments while staff and the City
Attorney analyzed and evaluated the impacts of this decision and potential regulatory options,
the City Council approved Interim Urgency Ordinance No. 1392 on February 1, 2011, and
enacted a temporary moratorium on the establishment and operation of tattoo establishments
within the City for a period of 45 days. On March 1, 2011, the Tustin City Council adopted
Interim Urgency Ordinance No. 1396, which extended Interim Urgency Ordinance No. 1392 for
an additional period of ten (10) months and fifteen (15) days.
Currently, permanent cosmetics facilities are the only type of body art facility permitted within
the City of Tustin. On March 20, 2007, the Tustin City Council adopted Ordinance No. 1324 to
enable the inspection and regulation of permanent cosmetics facilities within the City of Tustin
by the Orange County Health Department. As noted previously, other types of body art facilities,
which include tattoo establishments and body piercing facilities, are not listed as permitted uses
in the Tustin Zoning Code, and the Tustin City Code contains no specific provisions regulating
the location, development, or operational characteristics of establishments where tattoos or
body piercings are placed on individuals.
Pursuant to existing state law, every person engaged in the business of tattooing, body piercing,
or permanent cosmetics is required to register with the county in which the business is located,
obtain a copy of the county's sterilization, sanitation, and safety standards, and pay cone-time
registration fee. According to the Orange County Health Care Agency, there are about 150
body art facilities registered in the county. Many of these facilities are inspected on an annual
basis through health services agreements with cities by two (2) County inspection officers who
devote a portion of their time to the inspection of body art facilities.
On October 9, 2011, Assembly Bill No. 300, or the Safe Body Art Act, was signed by the
Governor (Attachment C). Beginning on July 1, 2012, Assembly Bill No. 300 will provide
minimum statewide standards for the regulation of persons engaged in body art businesses.
These standards are intended to protect the practitioner and the client from the transmission of
infectious diseases through the application of proper body art procedures and the control of
cross-contamination of instruments and supplies. The bill will also require the owner of a body
art facility to obtain and annually renew a health permit from the local health agency and to
maintain the body art facility in a specified manner. These proposed requirements will be more
regulatory in nature than the current county registration requirement. Assembly Bill No. 300
authorizes cities to adopt more stringent body art regulations, such as the requirement for
practitioners to obtain a City Body Art Permit.
The proposed code amendment would establish body art facilities, including body piercing,
tattooing, or the application of permanent cosmetics, as a permitted use within the City of Tustin
CA 2011-006 (Ordinance No. 1407)
November 1, 2011
Page 3
Retail Commercial (C-1 ), Central Commercial (C-2), Heavy Commercial (C-3), and Commercial
General (CG) Zoning Districts, subject to operational requirements, and establish that all body
art practitioners practicing at such facilities shall be licensed by the City. In addition, under
existing Code provisions body art facilities could be permitted in other zoning districts if the
Community Development Director and/or Planning Commission were to determine that a body
art facility is similar to another permitted use.
In consultation with the City Attorney, it is recommended that body art facilities be listed as a
permitted use rather than a conditionally permitted use because of the practical and legal
constraints placed upon the City by the Anderson v. City of Hermosa Beach case. If a
conditional use permit were required, denial would be difficult to justify in individual cases, and
the grounds for denial would need to be based on health and safety matters that would be
covered by the County health permit.
The proposed amendment to the Tustin City Code is necessary to: 1) enable the inspection and
regulation of body art facilities within the City of Tustin by the Orange County Health Care
Agency; 2) establish a body art permit for body art practitioners; and 3) permit body art facilities
subject to operational requirements necessary and appropriate to protect the health and safety
of body art facilities.
The proposed amendments are consistent with the City of Tustin General Plan and comply with
Goal 4 of the Public Safety Element to reduce the risk to the community's inhabitants from
exposure to hazardous materials and wastes.
ENVIRONMENTAL ANALYSIS
Proposed Code Amendment 2011-006 is not subject to the California Environmental Quality Act
("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a
direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) (Title 14, of the California Code of
Regulations) because it has no potential for resulting in physical change to the environment,
directly or indirectly; it prevents changes in the environment by requiring the approval of body
art permits for body art practitioners and imposing operational conditions on body art facilities.
PUBLIC NOTICE, CHAMBER OF COMMERCE REVIEW, PLANNING COMMISSION
RECOMMENDATION ON CA 2011-006
A public notice was published in the Tustin News on October 20, 2011, informing the public of
proposed Code Amendment 2011-006. Copies of the staff report and proposed ordinance were
transmitted to the Tustin Chamber of Commerce. At the March 1, 2011, City Council meeting,
Councilmember Gavello requested additional outreach; therefore, copies were also sent to
individuals who have expressed interest in body art facilities and to body art industry
representatives. Two industry representatives have expressed support for the proposed
ordinance and requested specific technical changes to the proposed ordinance, some of which
were considered by the Planning Commission and some of which (Attachment D) have been
incorporated into the ordinance to be considered by the City Council. The proposed ordinance
was also reviewed by a representative of the Orange County Health Care Agency.
CA 2011-006 (Ordinance No. 1407)
November 1, 2011
Page 4
On September 13, 2011, the City of Tustin Planning Commission continued the noticed public
hearing on Code Amendment 2011-06 to September 27, 2011, at which time the Planning
Commission unanimously adopted Resolution No. 4181, recommending that the Tustin City
Council approve Code Amendment 2011-06 (Ordinance No. 1407), which was confirmed by the
Planning Commission as part of the Consent Calendar on October 11, 2011 (Attachments E
and F).
Scott Reekstin
Senior Planner
izabeth A. Binsack
Director of Community Development
S:\Cdd\ccreport\CA 2011-006 Body Art.doc
Attachment A: Ordinance No. 1407
Attachment B: U.S. Court of Appeals Ninth Circuit Court Decision: Anderson v. City of Hermosa Beach
Attachment C: Assembly Bill No. 300
Attachment D: Correspondence
Attachment E: Planning Commission Resolution No. 4181
Attachment F: Excerpts from Planning Commission Minutes: 9/13/11, 9/27/11, and 10/11/11
ATTACHMENT A
ORDINANCE NO. 1407
ORDINANCE NO. 1407
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
AMENDING PART 4 OF CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN
CITY CODE REGULATING THE INSPECTION OF BODY ART
FACILITIES BY THE ORANGE COUNTY HEALTH CARE AGENCY;
AMENDING PART 4 OF CHAPTER 1 OF ARTICLE 3 ADDING
DEFINITIONS PERTAINING TO BODY ART; AMENDING PART 5 OF
CHAPTER 6 OF ARTICLE 3 PERTAINING TO A BODY ART PERMIT;
AND AMENDING SECTION 9232b OF PART 3 OF CHAPTER 2 OF
ARTICLE 9 TO PERMIT BODY ART FACILITIES.
The City Council of the City of Tustin hereby ordains as follows:
Section I. The City Council finds and determines as follows:
A. That the proposed amendment to the Tustin City Code is necessary
to: 1) enable the inspection and regulation of body art facilities within
the City of Tustin by the Orange County Health Care Agency and the
City of Tustin; 2) establish a body art permit for body art practitioners;
and 3) permit body art facilities subject to operational requirements
necessary and appropriate to protect the health and safety of body art
facilities.
B. That permanent cosmetics facilities are currently the only type of body
art facility permitted and regulated within the City of Tustin. Other
types of body art facilities include tattoo establishments and body
piercing facilities.
C. Tattoo establishments and body piercing facilities are not listed as
permitted uses in the Tustin Zoning Code, and the Tustin City Code
contains no specific provisions regulating the location, development,
or operational characteristics of establishments where tattoos or body
piercings are placed on individuals.
D. In a recent case, Anderson v. City of Hermosa Beach, the Ninth
Circuit Court of Appeals ruled that the City of Hermosa Beach's total
prohibition on the establishment and operation of tattoo parlors within
the city was unconstitutional, and that cities may only impose
reasonable "time, place, and manner" regulations on such activities.
The Ninth Circuit held that a tattoo, the process of tattooing, and the
business of tattooing are pure forms of expression fully protected by
the First Amendment to the United States Constitution, and that the
City of Hermosa Beach's total ban on tattoo parlors was not a
reasonable °time, place, or manner" restriction. The Ninth Circuit's
decision calls into question the effectiveness of the Tustin City Code
in regulating the act and/or business of tattooing and addressing land
uses related to tattooing.
777346.3
Ordinance No. 1407
Page 2
E. Tattooing is an activity that, if undertaken in unsanitary conditions,
can lead to the transmission of infectious diseases, including
hepatitis, syphilis, tuberculosis, and HIV. Based upon the experience
of other cities, it is reasonable to conclude that similar negative
effects could occur in the City of Tustin as a result of the
establishment or operation of tattoo establishments that do not meet
minimum sterilization, sanitation, and safety standards.
F. The City has received inquiries regarding the permitting and
establishment of tattoo establishments within the City. The issuance
or approval of any business license, permit or other entitlement for the
establishment or operation of tattoo establishments is a threat to the
public health, safety, and welfare in that there currently are no specific
standards or regulations in the Tustin City Code that comprehensively
address the potential negative effects associated with the location
and operation of such facilities. Absent reasonable time, place, and
manner regulations governing tattoo establishments, such uses could
be established in areas of the City where they are inconsistent and/or
incompatible with the surrounding land uses and/or operated under
unsanitary conditions, thereby increasing the risk of transmission of
infectious diseases.
G. The City has completed a study, which is incorporated in the City
Council Report dated October 4, 2011, regarding appropriate
operational requirements necessary to protect the public health,
safety, and welfare of the community and employees of body art
facilities from impacts associated with the operation of body art
establishments.
H. That the proposed amendment will establish body art facilities,
including body piercing, tattooing, or the application of permanent
cosmetics, as a permitted use within the City of Tustin Retail
Commercial (C-1), Central Commercial (C-2), Heavy Commercial (C-
3), and Commercial General (CG) Zoning Districts, subject to
operational requirements established below, and establish that all
body art practitioners practicing at such facilities shall be licensed as
required herein.
I. That on March 20, 2007, the Tustin City Council adopted Ordinance
No. 1324 to enable the inspection and regulation of permanent
cosmetics facilities within the City of Tustin by the Orange County
Health Department.
J. That on February 1, 2011, the Tustin City Council adopted Interim
Urgency Ordinance No. 1392 relating to the establishment or
operation of tattoo establishments.
K. That on March 1, 2011, the Tustin City Council adopted Interim
Urgency Ordinance No. 1396, which extended Interim Urgency
Ordinance No. 1393 for an additional period of ten (10) months and
fifteen (15) days.
777346.3
Ordinance No. 1407
Page 3
Section II.
PART 4
L. That the proposed amendment is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section
15378) (Title 14, of the California Code of Regulations) because it has
no potential for resulting in physical change to the environment,
directly or indirectly; it prevents changes in the environment by
requiring the approval of body art permits for body art practitioners
and imposing operational conditions on body art facilities.
M. That on September 27, 2011, the Tustin Planning Commission held a
public hearing on proposed Code Amendment 2011-006 and adopted
Resolution No. 4181 recommending that the Tustin City Council
approve Code Amendment 2011-006, subject to confirmation by the
Planning Commission as part of the Consent Calendar on October
11, 2011.
N. That on November1, 2011, a public hearing was duly noticed, called,
and held before the City Council concerning Code Amendment 2011-
006.
O. That the proposed amendments are consistent with the City of Tustin
General Plan and comply with Goal 4 of the Public Safety Element to
reduce the risk to the community's inhabitants from exposure to
hazardous materials and wastes.
Part 4 of Chapter 1 of Article 4 is hereby amended to read as follows:
BODY ART FACILITIES
4140.010 DEFINITIONS
4140.020 EXPOSURE CONTROL TRAINING
4140.030 INFECTION PREVENTION AND CONTROL PLAN
4140.040 BODY ART FACILITIES
4140.050 PREEMPTION
4140.060 CLEANING, STERILIZATION, AND HOUSEKEEPING
4140.070 EQUIPMENT PURCHASED PRE-STERILIZED
4140.080 CLIENTS
4140.090 PRACTITIONER
4140.100 SKIN PREPARATION
4140.110 TATTOO AND PERMANENT COSMETIC APPLICATION
4140.120 BODY PIERCING
4140.130 SHARPS DISPOSAL
4140.140 TEMPORARY BODY ART FACILITIES
4140.150 MOBILE BODY ART FACILITIES
4140.160 ENFORCEMENT AUTHORITY
4140.170 REGISTRATION
4140.180 PERMIT AND FEE REQUIREMENTS
4140.190 PENALTIES
4140.200 PERMIT SUSPENSION OR REVOCATION
4140.210 HOURS OF OPERATION
777346.3
Ordinance No. 1407
Page 4
4140.220
4140.230
4140.010 DEFINITIONS
MANAGEMENT OF OPERATIONS
NUISANCE
As used in this Chapter, unless the context otherwise requires, the following terms
shall have the meanings ascribed to them respectively:
(a) "Antiseptic" means a liquid orsemi-liquid substance that is approved by the U.S. Food
and Drug Administration, as indicated on the label, to reduce the number of
microorganisms present on the skin and on mucosal surfaces.
(b) "Bloodborne pathogen(s)" means disease causing microorganisms that, when
present in the blood, can be transmitted to humans. These microorganisms include,
but are not limited to, Hepatitis B Virus (HBV), Hepatitis C Virus (HCV) and Human
Immunodeficiency Virus (HIV).
(c) "Body art" means the practice of physical body adornment including, but not limited
to, the following techniques: body piercing, tattooing or application of permanent
cosmetics.
(d) "Body art facility" means the area within a building or other location in which a
practitioner performs body piercing, tattooing or application of permanent cosmetics,
including the preparation and procedure area, as defined in this Chapter.
(e) "Body piercing" means the creation of an opening in the human body for the purpose
of inserting jewelry or decorative objects. This includes, but is not limited to, piercing
of an ear, lip, tongue, nose, belly button, cheek, forehead or eyebrow. Body piercing
does not, for the purpose of this Chapter, include piercing the leading edge or earlobe
of the ear with a sterile, disposable, single-use stud or solid needle that is applied
using a mechanical device to force the needle or stud through the ear.
(f) "Client" means any individual who receives a body piercing, tattoo or application of
permanent cosmetics from a practitioner as defined in this Chapter.
(g) "Disinfectant" means a product that is approved by the U.S. Environmental Protection
Agency, as indicated on the label, to reduce or eliminate the presence of disease
causing microorganisms.
(h) "Health Officer" means the Orange County Health Officer or designee
(i) "Instrument" means any tattooing, body piercing or permanent cosmetics equipment
or device that comes into contact with intact skin, non-intact skin, or mucosal
surfaces. Such equipment includes, but is not limited to, needles, needle bars, needle
tubes, forceps, hemostats, tweezers, razors, razor blades, or other tools and devices
used to insert pigment or pierce the skin or mucosal surfaces of the human body.
Such equipment also includes studs, hoops, rings or other decorative jewelry,
materials or apparatuses inserted into any part of the body for the intended purpose
of placement in a hole resulting from the piercing.
777346.3
Ordinance No. 1407
Page 5
(j) "Permanent cosmetics" means the application of pigments inserted into or under the
surface of human skin for the purpose of permanently changing the color or
appearance of the skin. This includes, but is not limited to, permanent eyeliner, eye
shadow, or lip color.
(k) "Permanent cosmetics facility" means the area within a building in which a practitioner
performs the application of permanent cosmetics, including the preparation and
procedure area, as defined in this Chapter.
(I) "Practitioner" means an individual who performs tattooing, body piercing, or who
applies permanent cosmetics as defined in this Chapter.
(m) "Preparation Area" means a room or a designated portion of a room that is used to
clean and sterilize reusable instruments that are used for tattooing, body piercing, or
permanent cosmetics.
(n) "Procedure area" means a room or a designated portion of a room where tattooing,
body piercing or the application of permanent cosmetics is performed.
(o) "Proprietor" means the person having general control and management over the
conduct of business at a body art facility, or the person operating such establishment,
whether or not such person is the legal owner of the premises or the business.
(p) "Purchased pre-sterilized equipment" means any individually packaged, single-use
instruments, devices and/or needles that are obtained after processing to render
them free of all microbial life forms. Each package shall have the manufacturer's
processing identification number and date of expiration.
(q) "Sharps waste" means any instrument or object, including but not limited to needles
or razor blades, that has been used to penetrate the skin or mucosa to perform
tattooing, body piercing or the application of permanent cosmetics, or otherwise
contaminated by coming into contact with blood or surfaces that have not been
disinfected or sterilized.
(r) "Sterilization" means the complete destruction of all microbial life forms including
spores. ~ 'snr~rrtieror~ .vv o+h....r ..F
~n ~~_~;~-care--steriiar~.
(s) "Tattooing" means to pierce or puncture the human skin with a needle or other
instrument for the purpose of the application of pigments or the inserting of pigment
under the surface of the skin; the application of pigments or inks inserted into or
under the skin for the purpose of producing a mark or by production of scars.
4140.020 EXPOSURE CONTROL TRAINING
(a) Prior to registration as a body art practitioner with the Orange County Health Care
Agency, all body art practitioners shall complete and submit proof of completion to the
Health Officer , of an Exposure Control Training Program that meets or exceeds the
requirements of this Chapter.
777346.3
Ordinance No. 1407
Page 6
(b) The person conducting the training shall be knowledgeable in the subject matter
covered by the elements defined in section 4140.020(d).
(c) The organization providing the Exposure Control Training shall provide appropriate
written training materials to each trainee.
(d) The content of the Exposure Control Training Program shall include:
(1) California Occupational Safety and Health Administration Bloodborne Pathogens
Standard and other applicable standards and regulations with pertinent
explanations.
(2) The causes, control, and symptoms of the diseases caused by bloodborne
pathogens.
(3) The modes of transmission of bloodborne pathogens.
(4) A discussion of risks involved in the application of body art and how they may
lead to exposure to bloodborne pathogens for the client or body art practitioner.
(5) The use of personal protective equipment such as disposable gloves and an
explanation of the limitations of the equipment.
(6) The importance of hand washing and a demonstration of the hand washing
process as described in Section 4140.090.
(7) The types, proper technique and order of tasks before and after putting on and
removing gloves to avoid cross-contamination.
(8) Activities that compromise a disinfected work area, .,- an ase tic
procedure site, inks and pigments, sterile instruments and d~^}~ clean skin
area.
(9) Choosing, using and storing disinfectants and antiseptics.
(10) Signs required for contaminated materials and the importance of labeling
chemicals and supplies.
(11) Information on Hepatitis B vaccine, including its efficacy, safety and method of
administration.
(12) What constitutes a bloodborne pathogen exposure incident, including:
a. How the exposure occurred and what actions are to be taken to prevent or
minimize future exposures.
b. Risk of infection following a bloodborne pathogen exposure incident.
c. Procedures to be followed after an exposure incident, including medical
follow-up.
777346.3
Ordinance No. 1407
Page 7
d. Opportunity for interactive questions and answers with the instructor.
4140.030 INFECTION PREVENTION AND CONTROL PLAN
(a) Each proprietor shall establish, maintain and follow, at each body art facility, a written
Infection Prevention and Control Plan.
(b) The Infection Prevention and Control Plan shall include, at a minimum, the following:
(1) Procedures for cleaning and disinfection of surfaces in the preparation and
procedure areas.
(2) Procedures for maintaining the sterility or integrity of instruments, equipment and
other material used during tattooing, body piercing, or permanent cosmetics.
(3) Procedures for cleaning, packaging, sterilizing, and storing reusable instruments,
and equipment.
(4) Procedures for safe handling and disposal of sharps waste.
(5) Inventory (names, manufacturers, container size) of all chemicals and
disinfectants and their intended use.
(c) The Infection Prevention and Control Plan shall be revised by the proprietor
whenever changes in practices or procedures are made, within thirty (30) days of a
change in practices or procedures.
(d) The proprietor shall be responsible for ensuring that the Infection Prevention and
Control Plan is followed.
4140.040 BODY ART FACILITIES
(a) The health permit shall be posted in a conspicuous place in the lobby of the body art
facility.
(b) Body art facilities shall not be used as a food establishment, for human habitation or
any other use which may cause contamination of instruments or equipment used for
body art activities.
(c) The floors, furnishings and equipment of body art facilities shall be kept clean and
sanitary at all times during business hours.
(d) Adequate lighting and ventilation shall be provided in the preparation and procedure
areas.
(e) Adequate toilet facilities, as required by the Tustin City Code, shall be available.
Toilet rooms and bathrooms shall not be used for the storage of instruments, or other
supplies used for body art activities, and shall be kept clean and sanitary at all times.
777346.3
Ordinance No. 1407
Page 8
(f) Rooms used for tattooing, body piercing or permanent cosmetic procedures shall be
separated by a wall or partition from those areas used for nail, hair and other
activities.
(g) All sinks shall be supplied with hot (110°F minimum) and cold running water.
(h) A sink that is readily accessible to the body art practitioner shall be provided and
equipped with liquid soap and single use paper towels dispensed from wall-mounted
dispensers that protect the supply from contamination.
(i) Pets or other animals shall not be allowed in the body art facility, except for trained
guide or assistance animals for the disabled. No trained guide or assistance animal
shall be allowed in the procedure or preparation area.
(j) No person shall utilize or maintain in a body art facility equipment that does not
comply with the requirements of this Chapter.
(k) The proprietor shall maintain the body art facility and the general premises under the
control of the proprietor in a clean and sanitary manner.
(I) All solid surfaces and objects in the procedure areal aid preparation area and the
decontaimination and sterilization area that have come into contact with the client of
the materials used in erformin the bod art. includin but not limited to chairs
armrests tables counterto s and tra s shall be immediately cleaned and
disinfected after each use with an appropriate bleach solution or other disinfectant.
Manufacturer's instructions for concentration, contact time, and disposal requirements
for all disinfectants must be observed.
(m) The practitioner shall wear disposable gloves on both hands when touching, cleaning
or handling a surface or object soiled or potentially soiled with blood. Disposable
gloves worn by the body art practitioner shall be promptly removed, and hands
immediately washed whenever the practitioner leaves a procedure or preparation
area.
(n) Each procedure and preparation area shall have waste receptacles, which are lined
with plastic bags manufactured for use in waste containers that fold over the top
margin of the waste container.
4140.050 PREEMPTION
The provisions of this Chapter are intended to supplement applicable state law and to
be in addition to, and not in conflict with such laws. Each provision shall remain in effect until
the enactment of state laws or the promulgation of state regulations that conflict with or
otherwise preempt the authority of the County of Orange or the City of Tustin to control the
conduct described in this Chapter.
4140.060 CLEANING, STERILIZATION, AND HOUSEKEEPING
(a) Instruments that pierce the skin or touch non-intact skin that will be reused shall be
cleaned, packaged in appropriately labeled sterilizer pouches and sterilized prior to
reuse.
777346.3
Ordinance No. 1407
Page 9
(b) Used instruments that will be sterilized and reused shall be transported dry and then
placed in a container of water, disinfectant or enz matic soakin r~ oduct until cleaned
and sterilized. Used instruments must be kept physically separated from sterilized or
unused disposable instruments. Disposable instruments must be disposed of directly
into a sharps container or into the appropriate trash receptacle after use and shall be
disposed of as required herein.
(c) Ultrasonic cleaners shall be available, maintained and operated according to
manufacturer's instructions.
(d) Clean instruments to be sterilized shall be first placed in sterilizer pouches that
contain either a sterilizer indicator or internal temperature indicator. Each pack shall
contain instruments for not more than one client. The outside of the pack shall be
labeled with the name of the instrument, date sterilized and initials of the person
operating the equipment.
(e) Instruments must be repackaged and re-sterilized if the pouch is torn or otherwise
compromised, if the indicator shows that adequate temperature was not reached or if
the item is not used within 6 months of the date of sterilization.
(f) Sterilized instruments must be maintained and stored in sterilized pouches until use.
(g) Sterilizers shall be operated according to manufacturer's instructions. If
manufacturer's instructions cannot be obtained, steam sterilization shall be
accomplished in an autoclave with at least 15 pounds of pressure per square inch at
a temperature of 250 degrees Fahrenheit for at least 30 minutes or as instructed by
the local Health Officer should the standards for sterilization change from time to time.
(h) Liquid sterilants shall not be used to sterilize instruments.
(i) Sterilized instruments shall be placed in clean, dry, labeled containers or stored in a
labeled cabinet that is protected from dust and water contamination.
(j) Sterilization equipment shall meet the following requirements:
(1) Only sterilizers intended for medical instruments shall be used. Sterilization
equipment shall be cleaned, and maintained according to manufacturer's
instructions.
(2) Sterilization equipment shall be tested after the initial installation, after any major
repair, and at the frequency recommended by the manufacturer. If no
manufacturer's recommendation can be found, then the unit shall be tested at
least weekly utilizing a biological monitoring system appropriate for the sterilizer
type.
(3) Biological indicator test results shall be maintained on site and available for
review for a period of two years subsequent to the date of the results.
777346.3
Ordinance No. 1407
Page 10
(I) A written log of each sterilization cycle shall be maintained on-site and available for
review for a period of two years, and shall include the following information:
(1) Date of load.
(2) The contents of the load.
(3) The exposure time and temperature.
(4) The results of the chemical indicator.
4140.070 EQUIPMENT PURCHASED PRE-STERILIZED
(a) A practitioner using only purchased, disposable, single use and pre-sterilized
instruments shall not be required to have sterilization equipment.
(b) Invoices for the purchase of all pre-sterilized instruments must be maintained onsite
and available for review for a period of two years after purchase. Required invoices
include but are not limited to combo couplers, needle chambers, barrels, casings, tips
and needles.
4140.080 CLIENTS
(a) No body art procedure shall be performed on skin surface areas containing any rash,
pimples, boils, or infection or otherwise manifesting any evidence of unhealthy
conditions including but not limited to any evidence of inflammation, such as redness,
swelling, infection, or open or draining lesions.
(b) Prior to receiving a tattoo, body piercing or permanent cosmetics, the client shall
read, sign and receive a copy of an informed consent form and post-procedure
instructions appropriate to the procedure.
(c) A copy of the signed informed consent form and post procedure instructions for all
body art procedures must be maintained onsite and available for review for a period
of two years after the procedure is performed.
(d) The consent form and post-procedure instructions shall include at a minimum, the
following:
(1) Record of information from the client's picture identification showing the name,
date of birth, gender, address of client, and driver's license or identification card
number.
(2) A summary, including the date, location and description of the procedure.
(3) What to expect following the procedure, including any medical complications
that may occur as a result of the procedure.
(4) A statement regarding the permanent nature of body piercing, tattooing or
permanent cosmetics.
777346.3
Ordinance No. 1407
Page 11
(5) A questionnaire regarding a client history of herpes, diabetes, allergic reactions
to latex or antibiotics, hemophilia or any other bleeding disorder or the use of
anticoagulants, which may prevent the healing of the site where the tattoo or
permanent cosmetics were applied, and of cardiac valve disease or of being
prescribed antibiotics prior to dental or surgical procedures.
(6) Post-procedure instructions on the care of the site of the tattoo, body piercing, or
permanent cosmetics.
(7) Post-procedure restrictions on activities such as bathing, swimming, gardening
or contact with animals.
(8) Information regarding signs and symptoms of infection and to immediately
consult a physician if any of the listed signs and symptoms of infection occur.
4140.090 PRACTITIONER
(a) No body art operation shall be performed unless the practitioner is free of pustular
skin lesions and any communicable diseases that could be transmitted in the normal
practice of body art.
(b) No practitioner shall eat, drink or smoke while performing a body art procedure
(c) No practitioner shall perform a body art procedure with unclean hands. For purposes
of this section, hands shall not be considered clean unless they have been thoroughly
washed with soap from a single service dispenser and warm water vigorously rubbing
all surfaces of lathered hands for at least ten (10) seconds, followed by thorough
rinsing under a stream of water. Hands shall be dried using single service towels from
a sanitary dispenser or hot air blower. Practitioners shall wear new, disposable exam
gloves for every client during the procedure. Gloves shall be discarded between each
client, and hands shall be washed each time gloves are changed. If a glove is
pierced, torn, or contaminated by coming into contact with any other person, or
contaminated surface, both gloves shall be removed and discarded. A single pair of
gloves shall not be used on more than one person.
4140.100 SKIN PREPARATION
No body art operation shall be performed unless the skin is adequately prepared prior
to the operation. For purposes of this section, skin shall be considered properly prepared if it
is thoroughly cleaned with an antiseptic according to manufacturer's instructions. If
necessary, the skin shall be shaved with a new, single use disposable razor.
4140.110 TATTOO AND PERMANENT COSMETICS APPLICATION
(a) All inks, pigments, petroleum jellies, soaps, and other reusable products used in a
procedure shall be dispensed from containers in a manner to prevent contamination
of the original container and its contents.
(b) Pigments shall be placed into clean single use cups or caps that shall be disposed of
immediately in an appropriate waste receptacle upon completion of the procedure.
777346.3
Ordinance No. 1407
Page 12
(c) Only single-use rinse cups shall be used with procedures, and they shall be disposed
of immediately upon completion of the procedure.
(d) All inks, dyes or pigments used shall be commercially manufactured for the procedure
and shall be used according to manufacturer's instructions.
(e) All products applied to the skin including stencils shall be single use and disposed
into a waste receptacle after the procedure.
(f) Needles and needle bars shall be sterilized prior to tattooing or application of
permanent cosmetics or shall be purchased pre-sterilized. Needles shall be used only
once and then disposed of in a sharps container.
(g) If a rotary pen, or traditional coil machine that reuses components is used, then the
use of sterilization equipment shall be required for sterilization of the reusable parts
that make contact with the client or blood.
(h) All rotary pens and other devices used to apply pigments must be designed and used
to prevent backflow of pigments into the machine.
4140.120 BODY PIERCING
(a) All jewelry or other objects to be placed in newly pierced skin shall be sterilized, or
purchased pre-sterilized, be in good condition, and be designed and manufactured for
insertion into the intended body part.
(b) Only jewelry or other objects made of ASTM F138 ISO 5832-1, and AISI 316E o_r
AISI 316LVM implant grade stainless steel, solid 14K through 2418K gold, niobium,
ASTM F 136 6A4V titanium, platinum or other materials determined to be equally bio-
compatible shall be placed in newly pierced skin.
4140.130 SHARPS DISPOSAL
(a) Each procedure area shall have a container for the disposal of sharps (needles, razor
blades, etc.) waste that is rigid, puncture resistant, leak proof and that is closeable
and sealable so that when sealed, the container cannot be reopened without great
difficulty. The container must be labeled with the words "sharps waste" or with the
international biohazard symbol and the word "BIOHAZARD."
(b) All sharps waste produced during the process of tattooing, body piercing and
permanent cosmetics shall be disposed of by one of the following methods:
(1) Steam sterilized on-site and disposed of as solid waste. If this method is utilized,
a chemical indicator strip or tape that indicates that the container has been
treated must be affixed prior to sterilization, and shall stay affixed to the
container when it is disposed.
(2) Treated on-site by a method approved by the Health Officer, and disposed of as
solid waste.
777346.3
Ordinance No. 1407
Page 13
(3) Removal and disposal through use of a Registered Medical Waste Hauler in
accordance with the provisions of the California Medical Waste Management
Act. Tracking documents must be maintained on-site and be available for review
for a period of two years from the date of removal from the body art facility.
4140.140 TEMPORARY BODY ART FACILITIES
Temporary body art facilities shall be prohibited in the City of Tustin.
4140.150 MOBILE BODY ART FACILITIES
Mobile body art facilities shall be prohibited in the City of Tustin.
4140.160 ENFORCEMENT AUTHORITY
The Health Officer or his or her designee is charged with the enforcement of this
Chapter, except for Sections 4140.210, 4140.220 and 4140.230. The City of Tustin Police
Department and the City of Tustin Code Enforcement Officer are also authorized to enforce
this ordinance. The Health Officer may, during the establishment's hours of operation and
other reasonable times, enter, inspect, search and secure samples, photographs, or other
evidence from any body art facility, or any location suspected of being a body art facility, for
the purpose of enforcing this Chapter. It is a violation of this Chapter for any person to refuse
to permit entry or inspection, the taking of samples or other evidence, or access to the facility
in order to copy any record as authorized by this Chapter, or to conceal any samples or
evidence, or withhold evidence concerning them. A written report of the inspection shall be
made and a copy shall be supplied or mailed to the proprietor or practitioner of the body art
facility.
4140.170 REGISTRATION
(a) Every practitioner as defined in this Chapter shall register with the Health Officer and
shall have on display so as to be readily visible to the public proof that shows that the
practitioner has registered, as specified in Health and Safety Code Section 119303.
(b) Registration of all practitioners is required every three years.
4140.180 PERMIT AND FEE REQUIREMENTS
A body art facility shall not be open for business without: (1) at least one valid body
art permit issued by the Director of Community Development to a practitioner practicing body
art at that location during operating hours, (2) a valid City business license, and (3) a valid
County health permit. The Health Officer shall issue a health permit when inspection has
determined that the proposed body art facility and its method of operation will conform to the
requirements of this Chapter. A health permit, once issued, is nontransferable. Ahealth
permit shall be valid only for the proprietor and location approved. The Orange County Board
of Supervisors shall adopt fees for the health permit, practitioner registration, and related
services. Fees shall be sufficient to cover the actual expenses of administering and enforcing
this program.
4140.190 PENALTIES
777346.3
Ordinance No. 1407
Page 14
Violation of any section of this Chapter by the proprietor o~ practitioner shall constitute
a misdemeanor and upon conviction thereof shall be punishable by a fine not to exceed one
thousand dollars ($1,000.00) per day per violation or by imprisonment in the county jail for a
term not exceeding six (6) months, or both such fine and imprisonment. Each day the
violation continues and is not corrected shall be a treated as a separate and distinct violation.
4140.200 PERMIT SUSPENSION OR REVOCATION
(a) Whenever the Health Officer finds that a body art facility is not in compliance with the
requirements of this Chapter, a written inspection notice shall be issued to the
proprietor. If the proprietor fails to comply within the noted timeframe, the Health
Officer shall issue to the proprietor, a notice of violation setting forth the acts or
omissions with which the proprietor is charged. Failure to comply with the Notice of
Violation within the noted timeframe may result in health permit suspension.
(b) If any immediate danger to the public health or safety is found, unless the danger is
immediately corrected, the Health Officer may temporarily suspend the permit and
order the body art facility immediately closed. Immediate danger means any
condition, based upon inspection findings or other evidence that may cause disease
transmission, including, but not limited to:
(1) Unclean or unsanitary floors, furnishings, toilet facilities, and equipment of the
body art facility;
(2) Inadequate sterilization of equipment;
(3) Lack of appropriate disposal receptacles and methods;
(4) Sewage contamination;
(5) Lack of potable water supply;
(6) Or any other condition, which in the opinion of the Health Officer, causes
immediate danger to public health and safety and requires temporary
suspension as noted above.
(c) Whenever a health permit is suspended as the result of an immediate danger to the
public health or safety, the Health Officer shall issue to the proprietor a notice setting
forth the acts or omissions with which the proprietor is charged.
(d) Any body art facility for which the health permit has been suspended shall close and
remain closed until the health permit has been reinstated.
(e) Where grounds for denial, suspension, non-renewal or revocation of a health permit
exist, the Orange County Sheriff, Health Officer or Code Enforcement Officer shall
serve the applicant or permit holder with a notice which shall state the reasons for the
proposed action, the effective date of the action, and of the right to appeal the action.
777346.3
Ordinance No. 1407
Page 15
(f) Appeal shall be made by filing a written notice of appeal setting out the action
appealed from, the grounds of the appeal and the facts upon which the appeal is
based. The notice of appeal shall be filed with the Clerk of the Board of Supervisors
not more than thirty (30) days after service of the notice of proposed action. A copy of
the notice appealed shall be attached to the notice of appeal. Notice of the date, time,
and place of the hearing on the appeal shall be mailed at least ten (10) days prior to
the date of the hearing by certified mail, return receipt requested, with proof of service
attached, addressed to the address on the permit.
(g) Hearing on the appeal shall be conducted by a Hearing Officer who shall preside over
the hearing, take evidence on the appeal and determine whether, on the basis of a
preponderance of the evidence, the appealed action shall be upheld. The Hearing
Officer shall render a written decision not less than forty-five (45) days after the date
of the appeal hearing. The decision of the Hearing Officer shall be final.
4140.210 HOURS OF OPERATION
(a) No body art facility shall operate except between the hours of 8 a.m. and 10 p.m.
Sunday through Thursday and between 8 a.m. and 12 a.m. on Friday and Saturday.
(b) The hours of operation shall be posted in a conspicuous place in the lobby of the
establishment and in a window or other location visible from the outside.
4140.220 MANAGEMENT OF OPERATIONS
(a) Each body art facility shall have a manager on the premises during all hours of
operation who shall be responsible for the operations and maintenance of the facility,
for compliance with all licensing requirements and to observe and supervise the
actions of all persons on the premises.
(b) Each body art facility shall provide a lobby or other seating area where customers
and other invitees of the business may be seated while waiting or otherwise not
having body art applied.
(c) No body art facility shall knowingly permit loud, boisterous, lewd, violent or
threatening behavior by clients or staff while in the facility or in any parking lot or
other adjacent area under the control of the body art facility.
4140.230 NUISANCE
(a) No body art facility shall be operated in a manner which constitutes a nuisance.
(b) Operation of a body art facility in violation of this Chapter or applicable penal or health
statute of the State of California shall constitute a public nuisance.
(c) A body art facility may be found to be a nuisance on the basis of multiple violations of
this Chapter, or any penal or health statute of the State of California or of multiple
complaints which have not been resolved against the proprietor.
777346.3
Ordinance No. 1407
Page 16
(d) Nuisance determinations and abatement shall be made and performed in the manner
set forth in Sections 3-14-2 and following of the Codified Ordinances of the County of
Orange.
Section III. Section 3141 of Part 4 of Chapter 1 of Article 3 is hereby amended to add the
following definitions:
Body art. The practice of physical body adornment including, but not limited to, the
following techniques: body piercing, tattooing or application of permanent cosmetics.
Body art facility. The area within a building or other location in which a practitioner
performs body piercing, tattooing or application of permanent cosmetics, as defined in this
Chapter, including the preparation and procedure area.
' Body piercing. The creation of an opening in the human body for the purpose of
inserting jewelry or decorative objects. This includes, but is not limited to, piercing of an ear,
lip, tongue, nose, belly button, cheek, forehead or eyebrow. Body piercing does not, for the
purpose of this Chapter, include piercing the leading edge or earlobe of the ear with a sterile,
disposable, single-use stud or solid needle that is applied using a mechanical device to force
the needle or stud through the ear.
Tattooing. To pierce or puncture the human skin with a needle or other instrument for
the purpose of the application of pigments or the inserting of pigment under the surface of
the skin; the application of pigments or inks inserted into or under the skin for the purpose of
producing a mark or by production of scars.
Section IV. Part 5 of Chapter 6 of Article 3 is hereby amended to read as follows:
Part 5 BODY ART
3651 PERMIT REQUIRED
No person shall engage in the business of applying body art without obtaining a body
art permit issued by the Director of Finance. No person shall engage in the business of
applying body art except at aduly-licensed body art facility specified in the County health
permit registration form and in the City body art permit as required herein.
This Part does not restrict the activities of any physician or surgeon licensed under
Chapter 5 (commencing with Section 2000) of Division 2 of the Health and Safety Code.
3652 PREREQUISITES TO OBTAINING PERMIT
No person shall be eligible to receive a body art permit until such person has
obtained a valid County health permit for a body art facility or until such person is employed
by a body art facility with a valid County health permit.
Any person who wishes to obtain a body art permit to engage in the business of
applying body art shall provide proof of: (1) registration with the Health Officer, (2) payment
of an annual County inspection fee, and (3) address(es) where the business is to be
conducted pursuant to Health and Safety Code Section 119303.
777346.3
Ordinance No. 1407
Page 17
3653 APPLICATION REQUIREMENT
In addition to providing the information required on the City's application form, the
applicant shall provide evidence that a complete set of fingerprints of the applicant was taken
through the Livescan service.
3654 OPERATIONAL REGULATIONS
Every body art facility shall be open for inspection by any officer of the City of Tustin
at all times during which body art services are being provided.
A permittee shall not:
(1) Do business at any location not specified in the County's registration form or
City permit; or
(2) Violate the sterilization, sanitation, and safety standards adopted by the State
Department of Health Services.
Section V. Section 9232a.2. of Part 3 of Chapter 2 of Article 9 is hereby amended to
sequentially reletter item numbers (d) through (s) and include body art
facilities as item (d) as follows:
(d) Body art facilities (as defined in section 3141, and subject to the
requirements of Part 4 of Chapter 1 of Article 4)
Section VI.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for
any reason determined to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Tustin hereby declares that it would have
adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion
thereof irrespective of the fact that any one or more sections, subsections, sentences,
clauses, phrases, or portions be declared invalid or unconstitutional.
PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular meeting on
the 1g` day of November, 2011.
JERRY AMANTE
Mayor
ATTEST:
PAMELA STOKER
City Clerk
777346.3
Ordinance No. 1407
Page 18
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN
CERTIFICATION FOR ORDINANCE NO. 1407
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of
the City of Tustin is 5; that the above and foregoing Ordinance No. 1407 was duly and
regularly introduced at a regular meeting of the Tustin City Council, held on the 1 g` day of
November, 2011 and was given its second reading, passed, and adopted at a regular
meeting of the City Council held on the 15~' day of November, 2011 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
PAMELA STOKER
City Clerk
777346.3
ATTACHMENT B
U.S. COURT OF APPEALS NINTH CIRCUIT COURT DECISION:
ANDERSON V. CITY OF HERMOSA BEACH
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY ANDERSON,
Plai-rtiff-Appellant, No. 08-56914
D.C. No.
~' 2:07-cv-05923-
CITY OF HERMOSA BEACH, a CAS-E
California Municipal Corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
May 7, 2010-Pasadena, California
Filed September 9, 2010
Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Noonan
13739
ANDERSON V. HGRMOSA BL'ACH 13743
COUNSEL
Robert C. Moest, Law Offices of Robert C. Moest, Santa
Monica, California, for the plaintiff-appellant.
John C. Cotti, Jenkins & Hogin, LLP, Manhattan Beach, Cali-
fornia, for the defendant-appellee.
OPINION
BYBEE, Circuit Judge:
We address a question of first impression in our circuit:
whether a -nunicipal ban on tattoo parlors violates the First
Amendment. Although courts in several jurisdictions have
upheld such bans against First Amendment challenges, see,
e.g., Hold Fast Tattoo, LLC v. City of North Chicago, 580 F.
Supp. 2d 656, 659-61 (N.D. I11. 2008); Yurkew v. Sinclair,
495 F. Supp. 1248, 1253-55 (D. Minn. 1980); State v. Bradv,
492 N.E.2d 34, 39 (Ind. Ct. App. 1986); People v. O'Sullivan,
409 N.Y.S.2d 332, 333 (App. Div. 1978); State v. White, 560
S.E.2d 420, 423-24 (S.C. 2002); Blue Horseshoe Tattoo, [!
Ltd. v. City of Norfolk, 72 Va. Cir. 388, 390 (Cir. Ct. 2007),
we respectfully disagree. We hold that tattooing is purely
expressive activity fully protected by the First Amendment,
and that a total ban on such activity is not a reasonable "time,
place, or manner" restriction.
L BACKGROUND
Petitioner-Appellant Johnny Anderson seeks to establish a
tattoo parlor in Defendant-Appellee City of Hermosa Beach
13744 A:JDERSON V. HERSIOSA BEACH
(the "City"), but Hermosa Beach Municipal Code ("Code")
§ 17.06.070 effectively bans tattoo parlors. Anderson sued the
City under 42 U.S.C. § 1983, alleging that § 17.06.070 is
facially unconstitutional under the First and Fourteenth
Amendments. The parties filed cross-motions for summary
judgment, and the district court denied Anderson's motion
and granted the City's motion. Anderson now appeals this
decision.
We begin with the relevant background information, start-
ing with a brief explanation of the process and health implica-
tions of tattooing,' followed by a summary of the laws
regulating tattooing in the State of California and its subdivi-
sions, and ending with a more detailed description of the facts
and procedural history in Anderson's particular case.
A. Tattooing
A declaration provided by the City sums up well the pro-
cess of tattooing:
A tattoo is created by injecting ink into a person's
skin. To do this, an electrically powered tattoo
machine, often called a gun, moves a solid needle up
and down to puncture the skin between 50 and 3,000
times per minute. The needle penetrates the skin by
about a millimeter and deposits a drop of insoluble
ink into the skin with each puncture. The ink is
deposited in the dermis, which is the second layer of
skin.... Because the skin has been punctured many
times, the end result is essentially an open wound.
'Throughout most of this opinion, we use "tattooing" as shorthand to
refer not only to the process of tattooing but also to the business of
tattooing-that is, the procedure under which the tattooist injects a tattoo
into a person's skin in exchange for money. In Part III.A, however, we
break down tattooing into each of its component parts: the tattoo itself, the
physical process of tattooing, and the business of tattooing.
f~NDE:RSON V. HERMOSA BEACH 13745
Tattooing carries the risk of infection and transmission of
disease "if unsanitary conditions are present or unsterile
equipment is used." Yurkew, 495 F. Supp. at 1252. The City's
declarations establish that tattooing can result in the transmis-
sion of such diseases as hepatitis, syphilis, tuberculosis, lep-
rosy, and HIV. Reports from the Centers for Disease Control
and Prevention and the Food and Drug Administration con-
firm the significant health risks of tattooing. See Centers for
Disease Control and Prevention, Body Art: Tattoos and Pierc-
ings (Jan. 21, 2008), available at http://www.cdc.gov/
features/bodyart (last visited May 25, 2010) (noting risks of
infection, tuberculosis, hepatitis B and C, and HIV); United
States Food and Drug Administration, Tattoos & Permanent
Makeup (Nov. 29, 2000), available at http://www.fda.gov/
cosmetics/productandingredientsafery/productinfotmation/
ucm 108530.htm (last visited May 25, 2010) (discussing risks
of infection, removal problems, potential allergic reactions,
and MRI complications).
In general, however, "tattooing is a safe procedure if per-
formed under appropriate sterilized conditions." Yurkew, 495
F. Supp. at 1252. "[T]attoo artists protect themselves and their
clients when following safe and healthy practices," including
"using sterile needles and razors, washing hands, wearing
gloves, and keeping surfaces clean." Centers for Disease Con-
trol and Prevention, supra; see also Mayo Clinic, Tattoos:
Understand Risks and Precautions (Feb. 16, 2010), available
of http://www.mayoclinic.com/hcalth/tattoos-and-piercings/
mc00020 (last visited May 25, 2010) (providing a list of ques-
tions aperson should ask "[t]o make sure [his] tattoo will be
applied safely").
B. Tattooing Regulations
Because of the potential health concerns implicated by tat-
tooing, the State of California requires "[e]very person
engaged in the business of tattooing ... [to] register ...with
the county health department of the county in which that busi-
13746 ANDERSON V. HERMOSA BEACH
Hess is conducted," CAL. HEALTH 8c SAFETY CODE § 119303(x),
and requires these county health departments to inspect the
registered tattoo parlors, id. § 119304. A person engaged in a
tattooing business "who fails to register as provided by Sec-
tion 119303... [is] subject to a civil penalty of five hundred
dollars ($500) per violation." /d. § 119306. Moreover, Cali-
fornia makes it illegal to "tattoo[ ] or offer[ ] to tattoo a per-
son under the age of 18 years." CAL. PGNAL CODE § 653.
The City of Hermosa Beach lies within the County of Los
Angeles ("the County"). According to a declaration by Claro
Cartagena, an inspector of tattoo establishments for the
County, there are nearly 300 tattoo establishments in the
County and over 850 tattooists. However, Cartagena is the
only inspector in the County monitoring the parlors. Many tat-
too parlors have never been inspected and are subject to no
regulations other than the requirement to register with the
County. Thus, it is largely up to the owner of the tattoo estab-
lishment to sterilize his equipment and follow sterilization
procedures. According to Cartagena, "While most tattoo
establishments are clean and sanitary, others are not.... As
in any field, there are those practitioners that are unscrupulous
or incompetent and do not follow the proper sterilization pro-
cesses strictly. This poses a risk for infection." Cartagena has
also received complaints about illegal underage tattooing.
Although Los Angeles County generally permits tattooing
businesses, the City of Hermosa Beach does not. Hermosa
Beach Municipal Code § 17.06.070 provides: "Except as pro-
vided in this title, no building shall be erected, reconstructed
or structurally altered, nor shall any building or land be used
for any purpose except as hereinafter specifically provided
and allowed in the same zone in which such building and land
is located." The Code provides zoning for a wide variety of
commercial uses, including movie theaters, restaurants, adult
businesses, bars, fortune tellers, gun shops, and youth hostels.
HERMOSA BEACH MuN. CODE § 17.26.030. No provision of the
zoning code, however, permits tattoo parlors, and as a result,
ANDERSON V. HLR~IOSA BEACH 13747
these facilities are banned from Hermosa Beach under section
17.060.070. Indeed, on November 20, 2007, the City's Plan-
ning Commission adopted a resolution against amending the
Code to permit tattoo parlors.
C. Fncts and Procedural History
Plaintiff-Appellant Johnny Anderson presently co-owns a
tattoo parlor in the Ciry of Los Angeles, and seeks to establish
a tattoo parlor in the City of Hermosa Beach. Anderson
describes his own approach to tattooing in a declaration he
submitted to the district court:
The tattoo designs that are applied by me are indi-
vidual and unique creative works of visual art,
designed by me in collaboration with the person who
is to receive the tattoo. The precise design to be used
is decided upon after discussion with the client and
review of a draft of the design. The choices made by
both me and by the recipient involve consideration
of color, light, shape, size, placement on the body,
literal meaning, symbolic meaning, historical allu-
sion, religious import, and emotional content. I
believe my designs are enormously varied and com-
plex, and include realistic depictions of people, ani-
mals and objects, stylized depictions of the same
things, religious images, fictional images, and geo-
metric shapes and patterns.... Sometimes, several
kinds of images are combined into a single tattoo or
series of tattoos.... I have studied the history of tat-
tooing, and [draw significantly on traditional Ameri-
cana tattoo designs and on Japanese tattoo motifs in
creating my images, while all the while trying to add
my own creative input to make the designs my own.
On August 14, 2006, Anderson brought a 42 U.S.C. § 1983
action against the City in the Central District of California,
alleging that Hermosa Beach Municipal Code ~ 17.06.070 is
13748 ANDERSON V. HERti1OSA BEACH
facially unconstitutional under the First and Fourteenth
Amendments, and seeking declaratory relief, injunctive relief,
attorney's fees, costs, and any other relief the court deemed
appropriate. The district court initially dismissed Anderson's
claim for lack of ripeness because Anderson had not sought
permission to operate a tattoo parlor under the administrative
procedures provided in the Code, which allow the community
development director to permit a commercial use not listed in
the zoning code if this use "is similar to and not more objec-
tion[able] than other uses listed." HERMOSA BEACF{ MUN. CODE
§ 17.26.040. [n May 2007, Anderson filed a request with the
City's community development director seeking such a find-
ing of "similar use" so that he could open a tattoo parlor. By
a letter dated June 2l, 2007, the request was denied, and
therefore Anderson was prohibited from opening a tattoo par-
lor in the City.
On September 12, 2007, Anderson filed the instant action
(similar to the first) in the Central District of California.
Anderson and the City filed cross-motions for summary judg-
ment on September 22, 2008. On October 27, 2008, the dis-
trict court issued a written decision granting the City's motion
for summary judgment and denying Anderson's motion. The
court "conclude[d] that the act of tattooing is not protected
expression under the First Amendment because, although it is
non-verbal conduct expressive of an idea, it is not `suffi-
ciently imbued with the elements of communication' " to
receive First Amendment protection under the Supreme
Court's decision in Spence v. f~ashington, 418 U.S. 405, 409
(1974) (per curiam). The court reasoned that "the customer
has ultimate control over which design she wants tattooed on
her skin" and, therefore, "the tattoo artist does not convey an
idea or message discernible to an identifiable audience." Hav-
ing determined that the act of tattooing is not protected under
the First Amendment, the court applied rational basis review
to the City's ordinance and held that, "[g]iven the health risks
ANDERSON V. HER'v10SA BEACEi 13749
inherent in operating tattoo parlors, ...the City has a rational
basis for prohibiting tattoo parlors." Anderson timely appealed.2
II. FIRST AMENDMENT FRAMEWORK
[ 1 ] The First Amendment, applied to the states through the
Fourteenth Amendment, prohibits laws "abridging the free-
dom of speech." U.S. CONST. amend. I. The First Amendment
clearly includes pure speech, but not everything that commu-
nicates an idea counts as "speech" for First Amendment pur-
poses. The Supreme Court has consistently rejected "the view
that an apparently limitless variety of conduct can be labeled
`speech' whenever the person engaging in the conduct intends
thereby to express an idea." United States v. O'Brien, 391
U.S. 367, 376 (1968) (analyzing a prosecution for the sym-
bolic burning of a draft card to protest the draft); see also
Cohen v. California, 403 U.S. l5, l8 (1971) (noting the
important distinction between "a conviction resting solely
upon `speech' "and one based "upon ...separately identifi-
able conduct which allegedly was intended . . . to be per-
ceived by others as expressive of particular views but which,
on its face, does not necessarily convey any message").
[2[ Thus, although pure speech is entitled to First Amend-
ment protection unless it falls within one of the "categories of
speech ...fully outside the protection of the First Amend-
ment," United States v. Stevens, l30 S. Ct. 1577, 1586 (2010);
see also Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942), conduct intending to express an idea is constitution-
ally protected only if it is "sufficiently imbued with elements
of communication to fall within the scope of the First and
Fourteenth Amendments," which means that "[a]n intent to
="We review do novo a grant of summary judgment and must determine
whether, viewing the evidence in the light most favorable to the nonmov-
ing parry, there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law." Lopez v.
Smhh, 203 F.3d 1122, 1 l31 (9th Cir. 2000) (en bane).
13750 ANDERSON V. HER~tOSA BEACH
convey a particularized message [is] present, and ...the like-
lihood [is] great that the message w[ill] be understood by
those who view[ ] it," Spence, 418 U.S. at 409-1 1. And even
where conduct expressive of an idea is protected by the First
Amendment, "[t]he government generally has a freer hand in
restricting expressive conduct than it has in restricting the
written or spoken word." Texas v. Johnson, 491 U.S. 397, 406
(1989). Restrictions on protected expressive conduct are ana-
lyzed under the four-part test announced in O'Brien, a less
stringent test than those established for regulations of pure
speech.'
~3~ Accordingly, our analysis proceeds as follows. Our
first task is to determine whether tattooing is (1) purely
expressive activity or (2) conduct that merely contains an
expressive component. In other words, we must determine
whether tattooing is more akin to writing (an example of
purely expressive activity) or burning a draft card (an exam-
ple of conduct that can be used to express an idea but does not
necessarily do so). See D'Brien, 391 U.S. at 370, 376; Coheir,
403 U.S. at 18. If tattooing is purely expressive activity, then
it is entitled to full First Amendment protection and the City's
regulation is constitutional only if it is a reasonable "time,
place, or manner" restriction on protected speech. Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989).` [f, on the
~In O'Brien, the Court held that a regulation of protected expressive
conduct is constitutional:
[1] if it is within the constitutional power of the Government [2]
if it furthers an important or substantial governmental interest; [3]
if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First
Amendment tieedoms is no greater than is essential to the fur-
therance of that interest.
391 li.S. at 377.
`Anderson does not contend that the City's regulation is a content-based
restriction on speech. And with good reason, as the City bans all tattoo
parlors, not just those that convey a particular kind of message or subject
matter. Thus, we do not subject the regulation to strict scrutiny.
At,'DERSON V. HER~IOSA BEACH 13751
other hand, tattooing is merely conduct with an expressive
component, then it is entitled to constitutional protection only
if it is "sufficiently imbued with elements of communication
to fall within the scope of the First and Fourteenth Amend-
ments." Spence, 418 U.S. at 409. If so, then the constitutional-
ity of the ordinance is governed by the O'Brien test. if
tattooing is conduct that is not "sufficiently imbued with ele-
ments of communication," id, then we must determine only
whether the City's zoning regulation is rationally related to a
legitimate governmental interest, see Sc{rad v. Borough of
Mount Ephraim, 452 U.S. 61, 68 (1981).
With this complex legal framework in mind, we turn to
Hermosa Beach Municipal Code § 17.06.070.
I[I. ANALYSIS
We hold that Ilermosa Beach Municipal Code § 17.06.070
is facially unconstitutional to the extent that it excludes tattoo
parlors. First, we hold that tattooing is purely expressive
activity rather than conduct expressive of an idea, and is thus
entitled to full First Amendment protection without any need
to resort to Spence's "sufficiently imbued" test. Second, we
hold that the City's total ban on tattooing is not a constitu-
tional restriction on protected expression because it is not a
reasonable "time, place, or manner" restriction.
A. Tattooing as First Amendment Expression
The district court assumed that the process of tattooing is
at most "non-verbal conduct expressive of an idea" rather
than speech itself. This determination is consistent with cases
from other courts that have emphasized the distinction
between the product and the process of tattooing and have
held that the physical process of tattooing is conduct subject
to Spence's "sufficiently imbued" test. See, e.g., Hold Fast
Tattoo, 580 F. Supp. 2d at 660 (analyzing tattooing under
Spence's framework based on the premise that "[t]he act of
13752 ANDERSON V. HERMOSA BEACH
tattooing is one step removed from the actual expressive con-
duct"); Yurkew, 495 F. Supp. at 1253-54 (regardless of
"whether ...the image conveyed by the tattoo[ ] is an art
form or amounts to art," "the process of tattooing is undeni-
ably conduct" that is subject to the Spence test). These courts
then held that tattooing fails the Spence test. See, e.g., Ho/d
Fast Tattoo, 580 F. Supp. 2d at 660 (holding that "[t]he act
of tattooing ...itself is not intended to convey a particular-
ized message"); Yurkew, 495 F. Supp. at 1253-54 (holding
that "the actual process of tattooing is not sufficiently com-
municative" to come within the First Amendment, because
"there has been no showing that the normal observer . .
would regard the process of injecting dye into a person's skin
through the use of needles as communicative"); White, 560
S.E.2d at 423 ("Unlike burning [a] flag, the process of inject-
ing dye to create [a] tattoo is not sufficiently communicative
to warrant [First Amendment] protection[ ]."). Similarly, the
City argues that "[t]he process of injecting dye into a person's
skin through the use of needles," in contrast with "any mes-
sage conveyed by the tattoo image, is non-expressive conduct
that must, in order to acquire First Amendment protection
[under Spence], carry with it an intent to convey a message
that will be understood by those who viewed it."
For the reasons set forth below, we disagree with the basic
premise underlying the conclusions of both the City and the
lower courts that have considered this issue. The tattoo itself,
the process of tattooing, and even the business of tattooing are
not expressive conduct but purely expressive activity fully
protected by the First Amendment.
1. The Tattoo
(4] There appears to be little dispute that the tattoo itself is
pure First Amendment "speech." The Supreme Court has con-
sistently held that "the Constitution looks beyond written or
spoken words as mediums of expression." Hurlev v. Irish-
American Gay, Lesbian and Bisexual Group of Boslon, 515
ANDERSON V. HERMOSA BEACH 13753
U.S. 557, 569 (1995). Accordingly, the Supreme Court and
our court have recognized various forms of entertainment and
visual expression as purely expressive activities, including
music without words, Ward, 491 U.S. at 790; dance, Schad,
452 U.S. at 65-66; topless dancing, Doran v. Salem Inn, Inc.,
422 U.S. 922, 932-934 (1975); movies, Joseph Burstyn, lnc.
v. Wilson, 343 U.S. 495, 501-02 (1952); parades with or with-
out banners or written messages, Hurley, 515 U.S. at 568; and
both paintings and their sale, White v. City of ~ Sparks, 500
F.3d 953, 956 (9th Cir. 2007). We have afforded these expres-
sive activities full constitutional protection without relying on
the Spence test. See Hrirlev, 515 U.S. at 569 ("[A] narrow,
succinctly articulable message is not a condition of constitu-
tional protection, which if confined to expressions conveying
a 'particularized message,' would never reach the unquestion-
ably shielded painting of Jackson Pollack, music of Arnold
Schoenberg, or Jabberwocky verse of Lewis Carroll." (cita-
tion omitted) (quoting Spence, 418 U.S. at 411)).
WSJ Tattoos are generally composed of words, realistic or
abstract images, symbols, or a combination of these, all of
which are forms of pure expression that are entitled to full
First Amendment protection. Tattoos can express a countless
variety of messages and serve a wide variety of functions, "in-
cluding: decorative; religious; magical; punitive; and as an
indication of identity, status, occupation, or ownership." Mark
Gustafson, The Tattoo in the Later Roman Empire and
Beyond, in WRITTEN ON THE BODY: TILE TATTOO IN EUROPEAN
AND AMERICAN HISTORY 17 (lane Caplan ed., Reaktion Books
2000); see also Alan Govenar, The Variable Context ojChi-
Cano Tattooing, in MARKS OF CIVILIZATION 209 (Arnold Rubin
ed., Regents of the University of California 1988) (discussing
the religious, social, and political purposes of tattooing); Clin-
ton R. Sanders, Drill and Frill: Clieirt C{mice, Client Typolo-
gies, and Interactional Control in Commercial Tattooing
Settings, !n MARKS OF CIVILIZATION, sr~pra, at 222-23 (discuss-
ing the "wide variety of reasons" people choose to get a tat-
too, including symbolization of an interpersonal relationship,
13754 ANDERSON V. HERMOSA BEACH
participation in a group, representation of key interests and
activities, self-identification, and making a decorative or aes-
thetic statement). We do not profess to understand the work
of tattoo artists to the same degree as we know the finely
wrought sketches of Leonardo da Vinci or Albrecht Durer, but
we can take judicial notice of the skill, artistry, and care that
modem tattooists have demonstrated.
(6( The principal difference between a tattoo and, for
example, apen-and-ink drawing, is that a tattoo is engrafted
onto a person's skin rather than drawn on paper. This distinc-
tion has no significance in terms of the constitutional protec-
tion afforded the tattoo; a form of speech does not lose First
Amendment protection based on the kind of surface it is
applied to. It is true that the nature of the surface to which a
tattoo is applied and the procedure by which the tattoo is cre-
ated implicate important health and safety concerns that may
not be present in other visual arts, but this consideration is rel-
evant to the governmental interest potentially just~ing a
restriction on protected speech, not to whether the speech is
constitutionally protected. We have little difficulty recogniz-
ing that a tattoo is a form of pure expression entitled to full
constitutional protection.
2. The Tattooing Process
Our next task is to determine whether the process of tattoo-
ing is purely expressive activity. We hold that it is. Spence's
"sufficiently imbued" test has been reserved for processes that
do not produce pure expression but rather produce symbolic
conduct that, "on its face, does not necessarily convey a mes-
sage." Cohen, 403 U.S. at 18. Burning a flag, see Johnson,
491 U.S. at 411, burning a draft card, see O'Brien, 391 U.S.
at 370, and wearing a black armband, see Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969),
can be done for reasons having nothing to do with any expres-
sion, and so require an interpretive step to determine the
expressive elements of these processes.
ANDERSON V. HER~tOSA BEACH I37SS
[7J However, neither the Supreme Court nor our court has
ever drawn a distinction between the process of creating a
form of pure speech (such as writing or painting) and the
product of these processes (the essay or the artwork) in terms
of the First Amendment protection afforded. Although writing
and painting can be reduced to their constituent acts, and thus
described as conduct, we have not attempted to disconnect the
end product from the act of creation. Thus, we have not drawn
a hard line between the essays John Peter Zenger published
and the act of setting the type. Cf. Minneapolis Star & Tri-
bune Co. v. Minn. Comm'r of Revenue, 460 U.S. $7$, $82
(1983) (holding that a tax on ink and paper "burdens rights
protected by the First Amendment"). The process of expres-
sion through a medium has never been thought so distinct
from the expression itself that we could disaggregate Picasso
from his brushes and canvas, or that we could value Beetho-
ven without the benefit of strings and woodwinds. In other
words, we have never seriously questioned that the processes
of writing words down on paper, painting a picture, and play-
ing an instrument are purely expressive activities entitled to
full First Amendment protection.
(S~ Tattooing is a process like writing words down or
drawing a picture except that it is performed on a person's
skin. As with putting a pen to paper, the process of tattooing
is not intended to "symbolize" anything. Rather, the entire
purpose of tattooing is to produce the tattoo, and the tattoo
cannot be created without the tattooing process any more than
the Declaration of Independence could have been created
without a goose quill, foolscap, and ink. Thus, as with writing
or painting, the tattooing process is inextricably intertwined
with the purely expressive product (the tattoo), and is itself
entitled to full First Amendment protection.
We are further persuaded by the fact that the process of tat-
tooing is more akin to traditional modes of expression (like
writing) than the process involved in producing a parade,
which the Supreme Court has held cannot be meaningfully
13756 ANDERSON V. HERMOSA BEACH
separated from the parade's expressive product in terms of the
constitutional protection afforded. See Kt~rley, 515 U.S. at
568 (holding that "[p]arades are ... a form of expression, not
just motion," and noting "the inherent expressiveness of
marching"). Thus, we have no difficulty holding that the tat-
tooing process is entitled to the same First Amendment pro-
tection as the process of parading.
Moreover, it makes no difference whether or not, as the dis-
trict court determined, "the customer has [the] ultimate con-
trol over which design she wants tattooed on her skin." The
fact that both the tattooist and the person receiving the tattoo
contribute to the creative process or that the tattooist, as
Anderson put it, "provide[s] a service," does not make the tat-
tooing process any less expressive activity, because there is
no dispute that the tattooist applies his creative talents as well.
Under the district court's logic, the First Amendment would
not protect the process of writing most newspaper articles-
after all, writers of such articles are usually assigned particu-
lar stories by their editors, and the editors generally have the
last word on what content will appear in the newspaper. Nor
would the First Amendment protect painting by commission,
such as Michelangelo's painting of the Sistine Chapel. As
with all collaborative creative processes, both the tattooist and
the person receiving the tattoo are engaged in expressive
activity.
3. The Business of Tattooing
~9) Finally, the fact that the City's ban relates to tattooing
businesses rather than the tattooing process itself does not
ST'he City does not actually ban tattooing as such but simply does not
permit tattoo parlors in its zoning regulations. In other words, so far as we
can tell, the Code contains no provision that would prevent a person from
performing a tattoo on a family member in his house for free. And the
City's restrictions may not apply to cosmetic tattooing that may be per-
formed in a doctor's office, clinic, or beauty parlor.
ANDERSON V. HERMOSA BEAC}} 13757
affect whether the activity regulated is protected by the First
Amendment. In City of Sparks, we held that even "an artist's
sale of his original artwork constitutes speech protected under
the First Amendment." 500 F.3d at 954 (emphasis added). We
first emphasized the inherent expressiveness of the painting
itself-in particular, that a painting "conveys [the artist's]
sense of form, topic, and perspective[,] ...may express a
clear social position ... [or] the artist's vision of movement
and color, ... [and] holds potential to `affect public attitudes'
by spumng thoughtful reflection in and discussion among its
viewers." Id. at 956 (citation omitted) (quoting Joseph Burs-
tyn, 343 U.S. at 501). We then rejected "the city's argument
that [plaintiff's] sale of his paintings removes them from the
ambit of protected expression." Id.; .see also City of Lakewood
v. Plain Dealer Publ'g. Co., 486 U.S. 750, 756 n.5 (1988)
("[T]he degree of First Amendment protection is not dimin-
ished merely because the [protected expression] is sold rather
than given away."); Riley v. Nat'l Fed 'n of the Blind of N. C.,
Inc., 487 U.S. 781, 801 (1988) ("It is well settled that a speak-
er's rights are not lost merely because compensation is
received; a speaker is no less a speaker because he or she is
paid to speak.").
The Second Circuit reached a similar conclusion in Bery v.
City of New York, 97 F.3d 689 (2d Cir. 1996), where the court
held that the sale of visual artwork is expression fully pro-
tected by the First Amendment. Id. at 695. The court rejected
the city's argument that, unlike the production of art, "the sale
of art is conduct" and should therefore be subject to Spence's
test. Id. The court held that "[t]he sale of protected materials
is also protected," id. (citing Lakewood, 486 U.S. at 756 n.5),
reasoning that "without the money, the plaintiffs would not
have engaged in the protected expressive activity," id. at 696.
[10~ City of Sparks and Bery stand for the proposition that
because the sale of a painting is intertwined with the process
of producing the painting, the sale is entitled to full constitu-
tional protection without any need to resort to the Spence test.
13758 ANDERSON V. HGRMOSA BEACH
The same logic applies to the business of tattooing. Thus, we
conclude that the business of tattooing qualifies as purely
expressive activity rather than conduct with an expressive
component, and is therefore entitled to full constitutional pro-
tection without any need to subject it to Spence's "sufficiently
imbued" test. The business is subject to reasonable time,
place, or manner restrictions (as explained in the next sec-
tion), but the fact that the tattoo is for sale does not deprive
it of its First Amendment protection.
B. The Citv's Ban as a Time, Place, or Manner Restriction
Having determined that tattooing is protected by the First
Amendment, our next inquiry is whether the City's total ban
on tattooing is a constitutional restriction on free expression.
A regulation that restricts protected expression based on the
content of the speech is constitutional only if it withstands
strict scrutiny, see United States v. Plavbov Entm 't Group,
Inc., 529 U.S. 803, 813 (2000), meaning that it "is necessary
to serve a compelling state interest and that it is narrowly
drawn to achieve that end," Perry Educ. Ass 'n v. Perry Local
Educators' Ass'~r, 460 U.S. 37, 45 (1983). However, Ander-
son does not contend that Hermosa Beach Municipal Code
§ 17.06.070 is a content-based restriction on speech. See
.supra n.4. Rather, he argues that the City's regulation is an
unconstitutional restriction on a means of expression.
Accordingly, we must determine not whether the City's
regulation survives strict scrutiny but whether the City's regu-
lation is a reasonable "time, place, or manner" restriction on
protected speech. Ward, 491 U.S. at 791 ("Our cases make
clear ...that ...the government may impose reasonable
restrictions on the time, place, or manner of protected speech
...."). This determination requires an inquiry into whether
the restriction: (1) is `justified without reference to the con-
tent of the regulated speech"; (2) is "nanowly tailored to
serve a significant governmental interest"; and (3) "leave[s]
ANDERSON V. HERMOSA BEACH 13759
open ample alternative channels for communication of the
information." Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 (1984).
Before turning to this inquiry, we first emphasize that the
Supreme Court "ha[s] voiced particular concern with laws
that foreclose an entire medium of expression," because "the
danger they pose to the freedom of speech is readily apparent
-by eliminating a common means of speaking, such mea-
sures can suppress too much speech." City of Ladue v. Gilleo,
512 U.S. 43, 55 (1994). A long line of Supreme Court cases
indicates that such laws are almost never reasonable "time,
place, or manner'' restrictions. See, e.g., id. at 54-55 (invali-
dating anordinance forbidding the display of signs on private
property); Schad, 452 U.S. at 75-76 (ban on all live entertain-
ment); Martin v. City of Struthers, Ohio, 319 U.S. 141, 145-
49 (1943) (ban on door-to-door distribution of literature);
Jamison v. Texas, 3 l8 U.S. 413, 416 (1943) (ban on distribut-
ing handbills on the public streets); Lovell v. City of Grim,
303 U.S. 444, 451-52 (1938) (ban on distribution of pam-
phlets within the municipality); but see Kovacs v. Cooper,
336 U.S. 77, 89 (1949) (upholding a ban on sound trucks).
The interplay between the Court's often rigid statements
about total bans on modes of expression and its traditional
"time, place, or manner" test is not entirely clear. However,
we need not determine whether the City's regulation is per se
unconstitutional as a total ban of a means of expression or
whether it is subject to a particularly stringent test, because
we hold that it fails under even the traditional "time, place, or
manner" test. We proceed now to that test.
1. Justified without Reference to Content
Anderson does not dispute that the City's regulation may
be "justified without reference to the content of the regulated
speech," Clark, 468 U.S. at 293. The City's regulation bans
all tattoo parlors, not just those conveying a particular kind of
13760 ANDERSON V. HERMOSA BEACH
cnessage or subject matter, and is purportedly justified based
on health and safety concems.
?. Narrowly Tailored
(11J A reasonable "time, place, or manner" restriction
must also be "narrowly tailored to serve a significant govern-
mental interest." Id In Ward, the Supreme Court clarified the
meaning of this requirement:
[A] regulation of the time, place, or manner of pro-
tected speech must be narrowly tailored to serve the
government's legitimate, content-neutral interests
but ... it need not be the least restrictive or least
intrusive means of doing so. So long as the
means chosen are not substantially broader [han
necessary to achieve the government's interest, .. .
the regulation will not be invalid simply because a
court concludes that the government's interest could
be adequately served by some less-speech-restrictive
alternative.
491 U.S. at 798, 800 (emphasis added).
Anderson does not dispute that the City has a significant
interest in regulating tattooing because of the health and
safety concerns implicated by this process. Rather, Anderson
argues that the regulation is substantially broader than neces-
sary to achieve this interest because the interest could be
achieved by regulations ensuring that tattooing is performed
in a sanitary manner rather than outright prohibition of tattoo-
ing. The City disagrees, pointing out that Los Angeles County
has only one health inspector for nearly 300 tattoo establish-
ments and over 850 tattooists, and that there are no statewide
regulations relating to sterilization, sanitation, and standards
for tattooists. "Put simply," the City argues, "there are insuffi-
cient resources to monitor the 8[5]0 tattooists operating in Los
ANDERSON V. HER~tOSA BEACH 13761
Angeles County, including the many who, like Plaintiff, are
self-taught and operating in backrooms and basements."
(12J As other courts have found, "tattooing is a safe proce-
dure if performed under appropriate sterilized conditions."
Yurkew, 495 F. Supp. at 1252; .see also Centers for Disease
Control and Prevention, supra. Tattooing is now permitted
(subject to regulation) in all fifty states, with Oklahoma
becoming the last to lift its ban as of November 1, 2006.
Janice Francis-Smith, OK Governor Henry Signs Tattoo
legalization into Law, OKLA. CITY J. REC. (May l 1, 2006),
available at http://findarticles.com/p/articles/mi_gn4182/
is 20060511/ai_n16412421 (last visited May 30, 2010). The
City has presented no evidence that tattooing in the City could
not be regulated in such a way that addresses the City's legiti-
mate public health concerns. Rather, it simply argues that cur-
rently, there are insufficient resources in place to address
these concerns. But the provision ve! non of such resources is
a matter within the City's control. Without more, we cannot
approve a total ban on protected First Amendment activity
simply because of the government's failure to provide the
resources it thinks are necessary to regulate it.
~13~ In sum, although a total ban on tattooing might be the
most convenient way of addressing the City's health con-
cerns, the City has given us no reason to conclude that these
concerns cannot be adequately addressed through regulation
of tattooing rather than a total ban on tattoo parlors. Thus,
particularly in light of the Supreme Court's historical "con-
cern with laws that foreclose an entire medium of expres-
sion," City of Ladue, 512 U.S. at 55, we have little difficulty
concluding that the City's ban is "substantially broader than
necessary to achieve the [City's] interest," Ward, 491 U.S. at
800.
3. Alternative Channels
J14J Even if the City's regulation were narrowly tailored to
serve its health and safety interests, a reasonable "time, place,
13762 ANDERSON V. HER4IOSA BEACH
or manner" restriction on protected speech must also "leave
open ample alternative channels for communication of the
information." Clark, 468 U.S. at 293. The City argues that,
although its regulation restricts tattooists' ability to apply
images to human skin via the injection of ink, there are alter-
native means available for applying the exact same words,
images, and symbols to skin, such as airbrushing or the use
of natural henna paste to create temporary tattoos. The City
also points out that the tattooist could render his designs "on
a traditional canvas or other media," such as a T-shirt. In
other words, the City believes that "[t]here is nothing inher-
ently or distinctly expressive about rendering ...designs on
the skin" using the ink-injection method.
We disagree. [n City ojLadue, the defendant city made an
argument similar to the one the City makes here. The City
argued that its ban on signs on private property was "a mere
regulation of the time, place, or manner of speech because
residents remain free to convey their desired messages by
other means, such as hand-held signs, letters, handbills, flyers,
telephone calls, newspaper advertisements, bumper stickers,
speeches, and neighborhood or community meetings." 512
U.S. at 56 (quotation marks and emphasis omitted). The
Supreme Court was
not persuaded that adequate substitutes exist for the
important medium of speech that Ladue has closed
off.... Displaying a sign from one's own residence
often carries a message quite distinct from placing
the same sign someplace else, or conveying the same
text or picture by other means. Precisely because of
their location, such signs provide information about
the identity of the `speaker[,]' [which] is an
important component of many attempts to persuade.
/c1. (emphasis added). The Court held the ordinance unconsti-
tutional because the city had "completely foreclosed a venera-
ANDERSON V. HER~IOSA BEACH 13763
ble means of communication that is both unique and
important." Id. at 54.
[15) As in City of'Ladue, the Ciry of Hermosa Beach has
"completely foreclosed a venerable means of communication
that is both unique and important." /d. at 54. Like music, tat-
tooing is "one of the oldest forms of human expression,"
bVard, 491 U.S. at 790, as well as one of the world's most uni-
versally practiced forms of artwork. See Jane Caplan, Intro-
dUCtion, In WRITTEN ON THE BODY, Supra, at X1 ("Physical
evidence for the practice [of tattooing] survives from the late
fourth millennium BC in Europe and from about 2000 BC in
Egypt, and tattooing can be found in virtually all parts of the
world at some time."). And it has increased in prevalence and
sophistication in recent years. See Juliet Fleming, The Renais-
sance Tattoo, in WRITTEN ON THE BODY, supra, at 61 ("[F]or
the last quarter-century the West has been enjoying a `tattoo
renaissance'; a movement characterized by refinements of
conception ... ; by technical developments ... ;and by the
refinement of procedure and equipment ...."); Susan Ben-
son, /nscriptiorr.s of the Self Reflections on Tattooing and
Piercing in Contemporary Euro-America, In WRITTEN ON THE
BODY, supra, at 240 (discussing how the "tattoo community"
has "bec[o]me more visible and more organized," and noting
that "over the past 30 years the number of tattoo establish-
ments has grown rapidly in absolute terms, both in Europe
and America"). According to a 2006 survey by the Pew
Research Center, 36 percent of people from ages 18-25, 40
percent of people from ages 26-40, and 10 percent of people
from ages 41-64, had or once had at least one tattoo. The Pew
Research Center for the People & the Press, Ho-v Young Peo-
ple view Their Lives, Futures and Politics: A Portrait of
"Generation Next " 21 (Jan. 9, 2007), available at
http://people-press.org/reports/pdf/300.pdf (last visited May
30, 2010).
Most importantly, a permanent tattoo "often carries a mes-
sage quite distinct" from displaying the same words or picture
13764 ANDERSON V. HERMOSA BEACH
through some other medium, and "provide[s] information
about the identity of the `speaker.' "City of Ladue, 512 U.S.
at 56. A tattoo suggests that the bearer of the tattoo is highly
committed to the message he is displaying: by permanently
engrafting a phrase or image onto his skin, the bearer of the
tattoo suggests that the phrase or image is so important to him
that he has chosen to display the phrase or image every day
for the remainder of his life. The relative permanence of the
tattoo can also make a statement of "autonomy and self-
fashioning"-"of ownership over the flesh" and a "defen[se
ofJ the embodied self against external impositions." Benson,
supra, at 251-52 (quotation marks omitted); see also id. at 251
("[T]he permanence of the tattoo establishes ... an instantia-
tion of the will in defiance of process and time: `you can
never get it off.' "); rd. at 250-251 (discussing how "the idea
of the permanence of the tattoo is critical" in that it is linked
"to ideas of the body as property and possession ...indeed
as the only possession of the self in a world characterized by
accelerating commodification and unpredictability"). Finally,
the pain involved in producing a permanent tattoo is signifi-
cant to its bearer as well: "Pain, like the tattoo itself, is some-
thing that cannot be appropriated; it is yours alone; it stands
outside the system of signification and exchange that threat-
ens the autonomy of the self." Id. at 251. These elements are
not present-or, at least, not nearly to the same degree-in
the case of a temporary tattoo, a traditional canvas, or a T-
shirt. Thus, we disagree with the City that "[t]here is nothing
inherently or distinctly expressive about rendering ...designs
on the skin" using the ink-injection method.
The City analogizes this case to Kovacs, the only case in
which the Supreme Court has upheld a total ban on a medium
of communication. In Kovacs, the Court upheld a Trenton,
New Jersey, ordinance banning sound trucks-vehicles with
attached sound amplifiers-on public streets. 336 U.S. at 89.
The Court emphasized Trenton's interest in preventing "dis-
tractions ...dangerous to traffic" and preserving "the quiet
and tranquility" of the residential areas. /d at 87. The Court
ANDERSON V. HER~tOSA BEACH 13765
also reasoned that the fact "[t]hat more people may be more
easily and cheaply reached by sound trucks ... is not enough
to call forth constitutional protection." Id. at 88-89. The City
argues that tattooing is just like a sound truck-it might be a
more effective means to disseminate a message to the public,
but the same message may be transmitted by other means. Cf.
Hold Fast Tattoo, 580 F. Supp. 2d at 660 ("The act of tattoo-
ing is one step removed from actual expressive conduct,
which is similar to a sound truck, which enables each cus-
tomer to express a particularized message, but the sound truck
vehicle itself is not expressive.").
The analogy to sound trucks is flawed. As discussed above,
a tattoo is not merely a "more effective" means of communi-
cating amessage; rather, the tattoo "often carves a message
quite distinct" from other media. City of Ladue, 512 U.S. at
56 (emphasis added). In light of the long line of cases in
which the Supreme Court has invalidated total bans on a
medium of communication, it cannot be true that any medium
of communication may be banned based on the reasoning that
it is merely a "more effective" means of communicating a
message; by this logic, after all, a canvas could be considered
merely a "more effective" means of displaying a painting than
lined paper. Seeming to recognize that its reasoning was in
some tension with its earlier cases, the Kovacs Court
explained that its judgment also rested on the fact that no one
within range of the sound truck could avoid the broadcast:
While this Court ...has invalidated an ordinance
forbidding a distributor of pamphlets or handbills
from summoning householders to their doors to
receive the distributor's writings, this was on the
ground that the home owner could protect himself
from such intrusion by an appropriate sign that he is
unwilling to be disturbed.... The unwilling listener
is not like the passer-by who may be offered a pam-
phlet in the street but cannot be made to take it. In
his home or on the street he is practically helpless to
13766 ANDERSON V. HER~tOSA BEACH
escape this interference with his privacy by loud
speakers except through the protection of the munic-
ipality.
Kovacs, 336 U.S. at 86-87 (quotation marks and footnote
omitted) (citing Martin, 3l9 U.S. at 143, 148).
(16] [n this sense, the case at hand is easily distinguishable
from Kovacs and indistinguishable from the Court's other
cases involving total bans on modes of expression. A tattoo
does not force "unwilling listener[s]" to heed its message any
more than the expletive-laden jacket at issue in Cohen. A tat-
too is displayed passively on the person's body, such that a
member of the general public can simply avert his eyes if he
does not wish to view the tattoo (assuming the tattoo is visible
to the public at all). In other words, a tattoo effects no addi-
tional intrusion of privacy on members of the public beyond
other types of expression clearly protected by the First
Amendment. Thus, the City's tattoo regulation is subject to
the principle in Martin, Schad, and City ojLadue, which, read
alongside Kovacs, indicate that if a unique and important
mode of expression does not force unwilling listeners to heed
its message in an intrusive manner, the government may not
ban it regardless of the availability of alternative (and less dis-
tinctive) means of communicating a similar message.
IV. CONCLUSION
]17] In sum, we hold that the tattoo itself, the process of
tattooing, and the business of tattooing are forms of pure
expression fully protected by the First Amendment. We fur-
ther hold that the City's total ban on tattoo parlors in Hermosa
Beach is not a reasonable "time, place, or manner" restriction
because it is substantially broader than necessary to achieve
the City's significant health and safety interests and because
it entirely forecloses a unique and important method of
expression. Moreover, no genuine issue of material fact exists
with respect to the constitutionality of the regulation. Thus,
ANDERSON V. HERMOSA BEACH 13767
we hold that Hetmosa Beach Municipal Code § 17.06.070 is
facially unconstitutional to the extent that it excludes tattoo
parlors, and we reverse the district court's order granting sum-
mary judgment in favor of the City and remand with instruc-
tions to grant Anderson's motion for summary judgment and
enjoin the City to include tattoo parlors in its zoning regula-
tions.
REVERSED.
NOONAN, Circuit Judge, concurring:
I concur in the holding of the court, and I agree with Judge
Bybee's robust defense of the values protected by the First
Amendment.
I write to state that tattooing may be purely expressive, not
that it always is. Any text may be expressive but is not invari-
ably so. A laundry list is normally not protected by the First
Amendment, but William Carlos Williams made a grocery list
into a poem. Context is all. A tattoo punitively affixed is
unprotected.
Accepting the fact that a tattoo may qualify as protected
speech, I note that creation of a tattoo may involve danger to
the health of its recipient, so that tattooing requires regulation
for health different from regulation, say, of a press. Tattooing
as a business may also require regulation to assure that it does
not attract minors. Finally, while we are bound to protect the
First Amendment value at issue, we are not bound to recog-
nize any special aesthetic, literary, or political value in the tat-
tooist's toil and trade.
ATTACHMENT C
ASSEMBLY BILL NO. 300
Assembly Bill No. 300
CHAPTER 638
An act to repeal and add Chapter 7 (commencing with Section l 19300)
of Part l5 of Division 104 of the Health and Safety Code, relating to body
art.
(Approved by Governor October 9, 201 L Filed with
Secretary of State October 9, 201 I . ~
LEGISLATIVE COUNSEL'S DIGEST
AB 300, Ma. Safe Body Art Act.
Under existing law, every person engaged in the business of tattooing,
body piercing, or permanent cosmetics is required to register with the county
in which that business is conducted, obtain a copy of the county's
sterilization, sanitation, and safety standards, as established by the California
Conference of Local Health Officers and distributed by the State Department
of Public Health, as specified, and pay aone-time registration fee of $25.
Existing law allows the county to charge an additional fee, if necessary to
cover the cost of registration and inspection, and allows a county to adopt
regulations that do not conflict with, or are more comprehensive than,
standards adopted by the department.
Under existing law, a person who fails to register or who violates the
sterilization, sanitation, and safety standards is liable for a civil penalty of
up to $500, to be collected in an action brought by the prosecuting attorney
of the county or city and county in which the violation occurred.
This bill would, as of July 1, 2012, repeal these provisions and, instead,
enact the Safe Body Art Act. The act would prohibit a person from
performing body art, as defined, without registering annually with the local
enforcement agency. The bill would require practitioners to comply with
specified requirements, including, among other things, client information
and questionnaires, vaccination, bloodborne pathogen training, and
sanitation. The bill would also require the owner of a body art facility, as
defined, to obtain and annually renew a health permit from the local
enforcement agency, as specified, and to maintain the body art facility in a
specified manner.
This bill would exempt from the definition of body art the piercing of an
car with a disposable, single-use, presterilized stud or solid needle that is
applied using a mechanical device to force the needle or stud through the
car, but would impose specified requirements on that practice. The bill
would authorize a local enforcement agency to require facilities performing
car piercing in that jurisdiction to submit a notification form, as provided,
with the local enforcement agency.
93
Ch. 638 - 2 -
The bill would authorize the local enforcement agency to charge a
one-time facility notification fee in an amount between $25 and $45, but
not in excess of the amount required to cover the actual costs of
administering and enforcing the program. The bill would authorize a county,
after December 31, 2015, to charge a different fee, established by local
ordinance, so long as an increased fee amount is necessary to cover the
actual costs of administering and enforcing the provisions.
This bill would regulate the performance of body art in vehicles, temporary
booths, and at body art events. The bill would require a person sponsoring
a body art event to obtain a permit and fulfill specified requirements and
would authorize a local enforcement agency to establish reasonable
regulatory fees, including, but not limited to, a fee for body art events in an
amount not to exceed, but sufficient to cover, the costs of enforcement.
The bill would authorize specified inspection by an enforcement officer,
and would provide for the suspension or revocation of a certificate of
registration or a health permit in specified circumstances. The bill would
make performing body art without being registered, operation of a body art
facility without a health permit, or operation of a temporary body art event
without a permit a misdemeanor and would authorize the local enforcement
agency to assess an administrative penalty, in an amount not less than $25
and not more than $1,000, for violating a provision of the bill. The bill
would also authorize the local enforcement agency, in addition to these
penalties, to impose a penalty of up to three times the cost of the registration
or permit on a practitioner, owner of a body art facility, or sponsor of a
temporary body art event who fails to obtain needed permits.
This bill would authorize a city, county, or city and county to adopt
regulations or ordinances that do not conflict with, or are more stringent
than, the provisions of the bill as those provisions relate to body art. Because
this bill would place the inspection and enforcement requirements on local
governments and because it creates a new crime, it would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local agencies
and school districts for certain costs mandated by the state. Statutory
provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for
specified reasons.
The people of the State of Culiforniu c!o enact us hllotivs:
SECTION 1. Chapter 7 (commencing with Section 119300) of Part 15
of Division 104 of the Health and Safety Code is repealed.
SEC. 2. Chapter 7 (commencing with Section l 19300) is added to Part
l5 of Division 104 of the Health and Safety Code, to read:
93
- 3 - Ch. 638
CHAPTER ~. BODY ART
Article 1. General Provisions
119300. (a) This chapter shall be known, and may be cited, as the Safe
Body Art Act.
(b) The purpose ofthis chapter is to provide minimum statewide standards
for the regulation of persons engaged in the business of tattooing, body
piercing, and the application of permanent cosmetics in California. These
requirements are intended to protect both the practitioner and the client from
transmission of infectious diseases through the application of proper body
art procedures and the control of cross-contamination of instruments and
supplies.
119301. For purposes of this chapter, the following definitions shall
apply:
(a) "Antiseptic solution" means a liquid or semiliquid substance that is
approved by the federal Food and Drug Administration to reduce the number
of microorganisms present on the skin and on mucosal surfaces.
(b) "Bloodborne pathogen" means adisease-causing microorganism that,
when present in the blood, can be transmitted to humans, including, but not
limited to, hepatitis B virus (HBV), hepatitis C virus (HCV), and human
immunodeficiency virus (HIV).
(c) "Body art" means body piercing, tattooing, branding, or application
of permanent cosmetics.
(d) "Body art facility" means the specified building, section of a building,
or vehicle in which a practitioner performs body art, including reception
areas, the procedure area, and the decontamination and sterilization area.
"Body art facility" does not include a facility that only pierces the car with
a disposable, single-use, presterilized clasp and stud or solid needle that is
applied using a mechanical device to force the needle or stud through the
car.
(e) "Body piercing" means the creation of an opening in a human body
for the purpose of inserting jewelry or other decoration. "Body piercing"
includes, but is not limited to, the piercing of an car, including the tragus,
lip, tongue, nose, or eyebrow. "Body piercing" does not include the piercing
of an ear, except for the tragus, with a disposable, single-use, presterilized
stud and clasp or solid needle that is applied using a mechanical device to
force the needle or stud through the ear.
(f) "Branding" means the process in which a mark or marks are burned
into human skin tissue with a hot iron or other instrument, with the intention
of leaving a permanent scar.
(g) "Client" means an individual upon whom a practitioner performs
body art.
(h) "Decontamination and sterilization area" means a room, or specific
section of a room, that is set apart and used only to decontaminate and
sterilize instruments.
93
Ch. 638 - 4 -
(i) "Department" means the State Department of Public Health.
(j) "Decontamination" means the use of physical or chemical means to
remove, inactivate, or destroy bloodborne pathogens on a surface or item
to the point where the pathogens are no longer capable of transmitting
infectious particles and the surface or item is rendered safe for handling,
use, or disposal.
(k) "Disinfectant" means a product that is registered by the federal
Environmental Protection Agency and the Department of Pesticide
Regulation, as indicated on the label, to reduce or eliminate the presence of
disease-causing microorganisms, including human immunodeficiency virus
(HIV) and hepatitis B virus (HBV) for use in decontaminating work surfaces.
(~ "Enforcement officer" means all local health officers, directors of
environmental health, and duly authorized registered environmental health
specialists and environmental health specialist trainees.
(m) "Hand hygiene" means either of the following:
(1) Thoroughly washing all surfaces of the hands and under the fingernails
with soap and warm water.
(2) In the absence of contamination with blood or other bodily fluids, or
obvious soiling, applying an antiseptic solution to all the surfaces of the
hands and underneath the fingernails.
(n) "Instrument" means a nonmedical application device used in
performing body art, including, but not limited to, needles, needle bars,
needle tubes, forceps, hemostats, tweezers, razors, or razor blades.
(o) "Local enforcement agency" means the local health agency of the
county, city, or city and county. In jurisdictions where the local health
agency and the environmental health agency are separate departments, the
jurisdiction shall specify which entity will be the local enforcement agency
for purposes of this chapter.
(p) "Mucosal surface" means the moisture-secreting membrane lining
of all body cavities or passages that communicates with the exterior,
including, but not limited to, the nose, mouth, vagina, and urethra.
(q) "Owner" means either of the following:
(l) The person or persons whose name or names appear on the health
permit, business license, property deed, or rental agreement of the body art
facility.
(2) A person, acting as a principal of a corporation or partnership, who
employs practitioners to perform body art or other activity regulated by this
chapter.
(r) "Permanent cosmetics" means the application of pigments in human
skin tissue for the purpose of permanently changing the color or other
appearance of the skin. This includes, but is not limited to, permanent
eyeliner, eyebrow, or lip color.
(s) "Potable water" means water that complies with the standards for
transient noncommunity water systems pursuant to the California Safe
Drinking Water Act (Chapter 4 (commencing with Section 116275) of Part
12).
(t) "Practitioner" means a person who performs body art on a client.
93
- 5 - Ch. 638
(u) "Procedure area" means a room, or designated portion of a room,
that is set apart and only used to perform body art.
(v) "Procedure site" means the area or location on the human body
selected for the placement of body art.
(w) "Sharps waste" has the same meaning as that term is defined in
Section 117755.
(x) "Sponsor" means an individual or business entity, including an event
coordinator or manager, responsible for the organization of a convention,
trade show, or other temporary event that includes a body art demonstration
booth. A sponsor may also be a body art practitioner.
(y) "Sterilization" means the complete destruction of all microbial life
forms, including spores.
(z) "Tattooing" means the insertion of pigment in human skin tissue by
piercing with a needle.
(aa) "Vehicle" means a vehicle that has been fitted or designed to perform
body art.
(ab) "Workstation" means the area within a procedure area where a
practitioner performs body art. The workstation includes, but is not limited
to, the client chair or table, counter, mayo stand, instrument tray, storage
drawer, and practitioner's chair.
Article 2. Restrictions on the Performance of Body Art
l 19302. (a) Pursuant to Section 653 of the Penal Code, a client shall
be at least 18 years of age to be offered or to receive a tattoo or permanent
cosmetics application, regardless of parental consent.
(b) Pursuant to Section 652 of the Penal Code, persons under 18 years
of age shall not be offered or receive a body piercing unless the piercing is
performed in the presence of his or her parent or guardian.
(c) A client shall be at least 18 years of age to be offered or to receive a
branding, regardless of parental consent.
(d) The piercing or application of permanent cosmetics to the nipples or
genitals of a minor is prohibited. The application of permanent cosmetics
to the nipples of a minor is authorized when applied by a registered
permanent cosmetic technician with the consent of the minor's parent or
guardian and as directed by a physician.
(c) A body art facility may refuse to perform body piercing on a minor,
regardless of parental or guardian consent.
l 19303. (a) Prior to the performance of body art, the client shall read,
complete, and sign an informed consent form that shall include, but not be
limited to, all of the following information:
(1) A description of the procedure.
(2) A description of what the client should expect following the procedure,
including suggested care and any medical complications that may occur as
a result of the procedure.
(3) A statement regarding the permanent nature of body art.
93
Ch. 638 - 6 -
(4) Postprocedure instructions that include all of the following:
(A) Information on the care of the procedure site.
(B) Restrictions on physical activities such as bathing, recreational water
activities, gardening, or contact with animals, and the duration of the
restrictions.
(C) Signs and symptoms of infection, including, but not limited to,
redness, swelling, tenderness of the procedure site, red streaks going from
the procedure site towards the heart, elevated body temperature, or purulent
drainage from the procedure site.
(D) Signs and symptoms that indicate the need to seek medical care.
(b) Prior to the performance of body art, the client shall receive, complete,
and sign a questionnaire that includes all of the following information:
(l) Whether the client may be pregnant.
(2) Whether the client has a history of herpes infection at the proposed
procedure site, diabetes, allergic reactions to latex or antibiotics, hemophilia
or other bleeding disorder, or cardiac valve disease.
(3) Whether the client has a history of medication use or is currently
using medication, including being prescribed antibiotics prior to dental or
surgical procedures.
(4) Other risk factors for bloodborne pathogen exposure.
(c) The questionnaire and all responses shall be considered confidential
information. The body art facility shall maintain the privacy of the
information and shall not sell, share, or transfer the information. A body art
facility shall comply with all state and federal laws with respect to the
protection of a client's personally identifiable information, including, but
not limited to, medical information, and shall be subject to existing penalties
for violation of applicable laws. The body art facility shall shred any
confidential medical information after two years from performing the body
art procedure on the client.
l 19304. This chapter does not restrict the activities of a physician and
surgeon licensed under Chapter 5 (commencing with Section ?000) of
Division 2 of the Business and Professions Code or a physician assistant
licensed under Chapter 7.7 (commencing with Section 3500) of Division 2
of the Business and Professions Code. Nothing in this chapter authorizes a
practitioner to perform activities that are restricted under Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code.
Article 3. Practitioner Registration
1 19306. (a) A person shall not perform body art if he or she is not
registered with the local enforcement agency.
(b) As a condition of registration, the applicant shall provide all of the
following:
(l) Evidence of current hepatitis B vaccination, including applicable
boosters, unless the practitioner can demonstrate hepatitis B immunity or
93
- 7 - Ch. 638
has complied with current federal OSHA hepatitis B vaccination declination
requirements.
(2) Evidence of completion of OSHA Bloodborne Pathogen Training
consistent with Section l 19307 and pursuant to paragraph (2) of subdivision
(g) of Section 5193 of Title 8 of the California Code of Regulations or its
successor.
(3) Proof that he or she is l8 years of age or older.
(4) Self-certification of, knowledge of, and commitment to meet state
law and relevant local regulations pertaining to body art safety.
(5) For first-time registrants, documentation evidencing a minimum of
six months of related experience. The local enforcement agency may require
documentation that includes, but is not limited to, dates, type, and location
of work, and the name and contact information of the registrant's supervisor
or supervisors.
(6) His or her business address and the address at which he or she will
perform any activity regulated by this chapter.
(7) Payment of a registration fee directly to the local enforcement agency.
The local enforcement agency shall set the fee at an amount not to exceed
the amount necessary but that is sufficient to cover the actual costs of
administering the program.
(c) A practitioner shall display, in a place readily visible to the public at
the body art facility where the practitioner is performing body art, the
certificate confirming registration with the local enforcement agency in the
jurisdiction in which that practice is conducted.
(d) A valid and current registration issued by a local enforcement agency
shall be valid in any other jurisdiction for no more than five consecutive
days, or 15 days total, in any one calendar year.
(e) Practitioner registration shall be renewed annually by a process to be
determined by the local enforcement agency.
(f) A practitioner shall obtain all necessary permits to conduct business,
including, but not limited to, being registered with the local enforcement
agency. In addition to the penalties available pursuant to Article 6
(commencing with Section 119320), a practitioner who violates this
subdivision shall be subject to suspension and a penalty not to exceed three
times the cost of registration.
l 19307. (a) Prior to registering with the local enforcement agency, a
practitioner shall complete a Bloodborne Pathogens Exposure Control
Training program that is specific to his or her practice.
(b) An owner shall provide Bloodborne Pathogens Exposure Control
Training pursuant to the requirements of paragraph (2) of subdivision (g)
of Section 5193 of Title 8 of the California Code of Regulations, or its
successor, for all employees, contractors, and volunteers who perform duties
within the decontamination and sterilization area or procedure area.
(c) The Bloodborne Pathogens Exposure Control Training shall meet all
of the following criteria:
(1) Training shall be conducted by a person or persons who are
knowledgeable in exposure control and infection prevention in the body art
93
Ch. 638 - 8 -
setting and who are approved by the local enforcement agency in accordance
with the provisions of this section.
(2) Training and training materials shall be specific to performing body
art.
(3) Training shall consist of not less than two hours of instruction that
includes all of the following:
(A) A copy and explanation of the California Occupational Safety and
Health Administration Bloodborne Pathogens Standard contained in Section
5 l93 of Title 8 of the California Code of Regulations, or its successor.
(B) A copy and explanation of applicable county, city, or city and county
ordinances that pertain to bloodborne pathogen transmission control in body
art.
(C) Discussion of transmission, control, and symptoms of the diseases
caused by bloodborne pathogens.
(D) Discussion of tasks involved in performing body art and how those
tasks may lead to exposure to bloodborne pathogens for the client or
practitioner.
(E) Discussion of the types and uses of personal protective equipment,
such as disposable gloves, including an explanation of the limitations of the
equipment.
(F) Discussion of the types of tasks, proper task technique, and order of
tasks before and after putting on and removing personal protective
equipment, to avoid contamination.
(G) Discussion of the importance of hand hygiene and a demonstration
of proper hand hygiene techniques.
(H) Discussion of choice, use, and storage of disinfectants and antiseptics.
(I) Information on the signage required for biohazard materials and the
importance of properly labeling chemicals and supplies.
(J) Information on hepatitis B vaccine, including safety and accessibility.
(K) Discussion of what constitutes a bloodborne pathogen exposure
incident, including all of the following:
(i) Examples of bloodborne pathogen exposure, how the exposure
occurred, and what actions to take to prevent or minimize future exposures.
(ii) Risk of infection following a bloodborne pathogen exposure incident.
(iii) Procedures to be followed after an exposure incident, including
medical followup.
(L) Opportunities for interactive questions and answers with the instructor.
(d) Each person required to complete a Bloodborne Pathogens Exposure
Control Training program pursuant to this section shall annually complete
a minimum of two hours of Bloodborne Pathogens Exposure Control
Training update presented by a trainer eligible pursuant to paragraph (1) of
subdivision (c).
(c) Records of training required pursuant to this section shall be
maintained for three years and shall be available for inspection upon request
of the enforcement officer.
1 19308. (a) Before performing body art, the practitioner shall do all of
the following:
93
- 9 - Ch. 638
(l) Wash and dry his or her hands consistent with sound hygenic
practices.
(2) Put on a clean apron, bib, or lap pad over clean, dry clothing.
(3) Put on personal protective equipment that is appropriate for the task.
(4) Don clean, previously unused, disposable examination gloves on both
hands just prior to the procedure. Gloves shall be worn throughout the
procedure. If gloves come into contact with an object or surface other than
the client's prepared skin or material to be used for the procedure, or if a
glove is torn or punctured, both gloves shall be removed, hand hygiene
performed, and new, clean, previously unused, disposable examination
gloves shall be donned. If gloves are removed for any reason during a
procedure, hand hygiene shall be performed prior to donning new, clean,
previously unused, disposable examination gloves.
(5) If the skin at the procedure site is to be shaved, the skin shall be first
washed with soap and water. Asingle-use, disposable razor shall be used
to shave the procedure site and then discarded into a sharps container.
(6) Immediately prior to performing the body art, the client's skin shall
be prepared with an antiseptic solution, antimicrobial, or microbicide,
according to manufacturer's instructions. The item used for application shall
be discarded after use.
(b) At the completion of the procedure, the practitioner shall do all of
the following:
(1) Answer questions regarding the procedure site.
(2) Provide postprocedure instructions.
(3) Place all used or discarded sharps waste in a sharps waste container.
(4) Wash and disinfect reusable instruments as provided in subdivisions
(d) and (e) of Section l 19309.
(5) Package and sterilize reusable instruments that may have come in
contact with nonintact skin or mucosal surfaces.
(6) Decontaminate the workstation and procedure area.
119309. (a) The practitioner shall maintain a clean and sanitary
environment.
(b) All solid surfaces and objects in the procedure area and the
decontamination and sterilization area that have come into contact with the
client or the materials used in performing the body art, including, but not
limited to, chairs, armrests, tables, countertops, and trays, shall be
immediately decontaminated after each use and then disinfected by
application of a disinfectant, used according to manufacturer's directions.
(c) The surfaces and objects in the procedure area shall be disinfected
again before use if the area has been used for any activity following its
previous disinfection.
(d) The practitioner shall wear disposable gloves on both hands when
touching, decontaminating, or handling a surface, object, instrument, or
jewelry that is soiled or that is potentially soiled with human blood.
(e) An instrument or other reusable item that comes into contact with
nonintact skin or mucosal surfaces shall either be single use or be washed,
disinfected, packaged, and sterilized after each procedure. Sterilization shall
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Ch. 638 -10 -
be accomplished pursuant to the procedures established in Section l 19315
by steam autoclave.
(f) An instrument or reusable item that does not come into contact with
nonintact skin or mucosal surfaces shall be washed with a solution of soap
and water, using a brush that is small enough to clean the interior surfaces,
and decontaminated after each procedure.
(g) A reusable item that cannot be immediately washed, disinfected, and
sterilized following completion of the body art procedure shall be placed
in a basin of water with or without detergent.
(h) Sterile instrument packs shall be evaluated before use, and if the
integrity of a pack is compromised in any way, including, but not limited
to, being torn, punctured, wet, or having evidence of potential moisture
contamination, the instrument pack shall be discarded or reprocessed before
use.
(i) No food, drink, tobacco product, or personal effects are permitted in
the procedure area. The practitioner shall not eat, drink, or smoke while
performing a procedure. If a client requests to cat, drink, or smoke, the
procedure shall be stopped and the procedure site shall be protected from
possible contamination while the client leaves the procedure area to cat,
drink, or smoke.
(j) Branding shall not be done with another client in the procedure area.
During the procedure, the practitioner and the client shall wear appropriate
protective face filter masks.
119310. (a) Jewelry placed in newly pierced skin shall be sterilized
prior to piercing as specified in Section 119315 or shall be purchased
presterilized. Sterile jewelry packs shall be evaluated before use and, if the
integrity of a pack is compromised, including, but not limited to, being torn,
wet, or punctured, the pack shall be discarded or reprocessed before use.
(b) Only jewelry made of ASTM F138, ISO 5832-1, and AISI 316E or
AIS1316LVM implant grade stainless steel, solid l4-karat through 18-karat
yellow or white gold, niobium, ASTM F 136 6A4V titanium, platinum, or
other materials found to be equally biocompatible shall be placed in newly
pierced skin.
(c) Ear piercing equipment with a disposable, single-use, presterilized
stud and clasp may be used only for piercing the car pursuant to Section
1 19304.
(d) If measuring the body piercing site is necessary, clean calipers shall
be used and the skin marked using clean toothpicks and ink.
1193 l 1. (a) A product applied to the skin prior to tattooing or application
of permanent cosmetics, including, but not limited to, stencils and marking
and transfer agents, including pens, shall be single use and discarded into
a waste container at the end of the procedure unless the product can be
disinfected for reuse.
(b) Only commercially manufactured inks, dyes, and pigments shall be
used.
(c) Inks, pigments, soaps, and other products in multiple-use containers
shall be dispensed in a manner to prevent contamination of the storage
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container and its remaining contents through the use of a single-use
receptacle.
(d) Inks and pigments shall be placed into a clean, single-use receptacle.
The inks and pigments remaining in the receptacle shall be discarded
immediately upon completion of the procedure.
(e) If a tray is used for inks or pigments, it shall be decontaminated after
each procedure.
(f) Only single-use needles and needle bars shall be used in tattooing and
the application of permanent cosmetics. Needles and needle bars that are
purchased in a nonsterilized state, shall be sterilized, pursuant to the process
required by Section 119315.
(g) Needles, needle bars, grommets, and razors shall be discarded into a
sharps waste container immediately upon completion of the procedure.
(h) Any part of a tattooing machine that may be touched by the
practitioner during the procedure shall be covered with a disposable plastic
sheath that is discarded upon completion of the procedure, and the machine
shall be decontaminated upon completion of the procedure.
(i) A machine used to insert pigments shall be designed with removable
tip parts between the tip and motor housing, and in a manner that will prevent
backflow into enclosed parts of the motor housing.
(j) A hand tool used to insert pigment shall be disposed of in a sharps
container, with the sharps intact, unless the needle can be mechanically
ejected from the hand tool.
Article 4. Permanent Body Art Facilities
l 19312. (a) A body art facility shall not conduct business without a
valid health permit.
(b) The application for a health permit for a body art facility shall include
all of the following:
(1) A copy of the facility's infection prevention control plan, as required
by Section 119313.
(2) A fee, as set by the local enforcement agency at an amount not to
exceed the amount necessary but that is sufficient to cover the actual costs
of administration of the program. Fees established by this section shall be
used exclusively in support of activities pursuant to this chapter.
(c) The local enforcement agency shall issue a health permit after an
investigation has determined that the proposed body art facility and its
method of operation meets the specifications of the approved plans or
conforms to the requirements of this article.
(d) A health permit is valid only for the location of the facility and the
time period indicated on the permit and may not be transferred to another
owner or facility.
(e) The health permit shall be posted in a conspicuous place at the body
art facility. Certificates of registration for all practitioners performing body
art in that facility shall also be prominently displayed either near the health
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Ch. 638 - 12 -
permit or at the individual practitioner's procedure area if each practitioner
has a designated area.
(~ A person proposing to construct a practice site or mobile practice site,
other than a temporary body art event booth, shall submit plans to the Plan
Review Unit of the local enforcement agency. The plans shall be approved
in advance of the issuance of a building, plumbing, or electrical permit. All
required corrections must be made and the body art facility approved to
open before body art can be performed in the facility.
(g) Health permits shall be renewed annually through a process to be
determined by the local enforcement agency.
(h) An owner who operates a body art facility shall obtain all necessary
permits to conduct business, including, but not limited to, a permit issued
by a local enforcement agency. In addition to the penalties available pursuant
to Article 6 (commencing with Section 119320), an owner who violates this
subdivision shall be subject to the closure of the facility and a penalty not
to exceed three times the cost of the permit.
119313. (a) A body art facility shall maintain and follow a written
Infection Prevention and Control Plan, provided by the owner or established
by the practitioners, specifying the procedures to achieve compliance with
each applicable requirement of this chapter.
(b) The Infection Prevention and Control Plan shall include all of the
following:
(1) Procedures for decontaminating and disinfecting environmental
surfaces.
(2) Procedures for decontaminating, packaging, sterilizing, and storing
reusable instruments.
(3) Procedures for protecting clean instruments and sterile instrument
packs from exposure to dust and moisture during storage.
(4) A set up and tear down procedure for any form of body art performed
at the body art facility.
(5) Techniques to prevent the contamination of instruments or the
procedure site during the performance of body art.
(6) Procedures for safe handling and disposal of sharps waste.
(c) The Infection Prevention and Control Plan shall be revised when
changes are made in infection prevention practices, procedures, or tasks.
(d) Onsite training on the facility's Infection Prevention and Control Plan
shall take place when tasks where occupational exposure may occur are
initially assigned, any time there are changes in the procedures or tasks, and
when new technology is adopted for use in the facility, but not less than
once each year.
(e) Records of training required pursuant to this section shall be
maintained for three years and shall be available for inspection upon request
of the enforcement officer.
l 19314. (a) With the exception of a temporary demonstration booth
and a mobile site, as specified in Sections 1 19317 and 1 19318, a body art
facility shall comply with all of the following:
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(l) Have floors, walls, and ceilings that are smooth, free of open holes,
and washable.
(2) Be free of insect and rodent infestation.
(3) Be separate from any residential areas used for sleeping, bathing, or
meal preparation. A body art facility associated with a residential dwelling
shall have a separate entrance and toilet facility, and shall not have a door
allowing direct access between the body art facility and the residential
dwelling.
(b) Procedure areas in a body art facility shall meet all of the following
standards:
(1) Be equipped with a light source that provides adequate light at the
procedure area.
(2) Be separated, by a wall or ceiling-to-floor partition, from nail and
hair activities.
(3) Be equipped with a sink supplied with hot and cold running water,
containerized liquid soap, and single-use paper towels that are dispensed
from a wall-mounted, touchless dispenser that is accessible to the
practitioner.
(c) Decontamination and sanitation areas within a body art facility shall
meet all of the following requirements:
(l) Be separated from procedure areas by a space of at least five feet or
by a cleanable barrier.
(2) Be equipped with a sink, hot and cold running water, liquid soap in
awall-mounted dispenser, and single-use paper towels dispensed from a
wall-mounted, touchless dispenser that is readily accessible to the
practitioner.
(d) Each procedure area and decontamination and sterilization area shall
have lined waste containers.
(e) Each procedure area and decontamination and sterilization area shall
have a container for the disposal of sharps waste that meets the following
requirements:
(l) The sharps waste container shall be portable, if portability is necessary
to ensure that the sharps waste container is within arm's reach of the
practitioner.
(2) The sharps waste container shall be labeled with the words "sharps
waste" or with the international biohazard symbol and the word
"BIOHAZARD."
(3) All sharps waste produced during the process of tattooing, body
piercing, or the application of permanent cosmetics shall be disposed by
either of the following methods:
(A) Removal and disposal by a company, or removal and transportation
through amail-back system approved by the department pursuant to
subdivision (b) of Section l 18245.
(B) As solid waste, after being disinfected by a method approved by the
department pursuant to paragraph (3) of subdivision (a) of Section 118215.
(f) No animals shall be allowed in the procedure area or the
decontamination and sterilization area.
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Ch. 638 - 14 -
l 19315. A body art facility shall conform to the following sterilization
procedures:
(a) Clean instruments to be sterilized shall first be scaled in peel-packs
that contain either a sterilizer indicator or internal temperature indicator.
The outside of the pack shall be labeled with the name of the instrument,
the date sterilized, and the initials of the person operating the sterilizing
equipment.
(b) Sterilizers shall be loaded, operated, decontaminted, and maintained
according to manufacturer's directions, and shall meet all of the following
standards:
(1) Only equipment manufactured for the sterilization of medical
instruments shall be used.
(2) Sterilization equipment shall be tested using a commercial biological
indicator monitoring system after the initial installation, after any major
repair, and at least once per month. The expiration date of the monitor shall
be checked prior to each use.
(3) Each sterilization load shall be monitored with mechanical indicators
for time, temperature, pressure, and, at a minimum, Class V integrators.
Each individual sterilization pack shall have an indicator.
(4) Biological indicator monitoring test results shall be recorded in a log
that shall be kept on site for two years after the date of the results.
(5) A written log of each sterilization cycle shall be retained on site for
two years and shall include all of the following information:
(A) The date of the load.
(B) A list of the contents of the load.
(C) The exposure time and temperature.
(D) The results of the Class V integrator.
(E) For cycles where the results of the biological indicator monitoring
test are positive, how the items were cleaned, and proof of a negative test
before reuse.
(c) Clean instruments and sterilized instrument packs shall be placed in
clean, dry, labeled containers, or stored in a labeled cabinet that is protected
from dust and moisture.
(d) Sterilized instruments shall be stored in the intact peel-packs or in
the sterilization equipment cartridge until time of use.
(e) Sterile instrument packs shall be evaluated at the time of storage and
before use. If the integrity of a pack is compromised, including, but not
limited to, cases where the pack is tom, punctured, wet, or displaying any
evidence of moisture contamination, the pack shall be discarded or
reprocessed before use.
(f) A body art facility that does not afford access to a decontamination
and sterilization area that meets the standards of subdivision (c) of Section
1193 l4 or that does not have sterilization equipment shall use only purchased
disposable, single-use, presterilized instruments. In place of the requirements
for maintaining sterilization records, the following records shall be kept and
maintained for a minimum of 90 days following the use of the instruments
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at the site of practice for the purpose of verifying the use of disposable,
single-use, presterilized instruments:
(1) A record of purchase and use of all single-use instruments.
(2) A log of all procedures, including the names of the practitioner and
client and the date of the procedure.
1 19316. (a) If a practitioner performs body art in a vehicle, a health
permit is required if the practitioner will practice in the vehicle in the
jurisdiction for more than seven days in a 90-day period. To obtain a health
permit, the vehicle shall meet the requirements set forth in subdivisions (b)
to (g), inclusive, of Section 1 19317.
(b) If the vehicle will be operating in the jurisdiction for less than seven
days in a consecutive 90-day period, the vehicle shall be treated as a
temporary booth and will be subject to Section 1 19317.
Article 5. Temporary Body Art Facilities
l 19317. A practitioner may, in the local jurisdiction of registration,
practice in a temporary demonstration booth for no more than seven days
in a 90-day period. The demonstration booth shall meet all of the following
requirements:
(a) Be located within a building that has hand washing facilities with hot
and cold running water, soap, and single-use paper towels to which
practitioners have direct access.
(b) Constructed with a partition of at least three feet in height separating
the procedure area from the public.
(c) Be free of insect or rodent infestation.
(d) Used exclusively for performing body art.
(e) Equipped with adequate light available at the level where the
practitioner is performing body art.
(f) Equipped with hand washing equipment that, at a minimum, consists
of containerized liquid soap, single-use paper towels, afive-gallon or larger
container of potable water accessible via spigot, and a wastewater collection
and holding tank of corresponding size. Potable water shall be refilled and
the holding tank evacuated at least every four procedures or every four
hours, whichever occurs first.
(g) Not allow animals within the confines of the demonstration booth.
(h) Be operating with all necessary permits to conduct business, including,
but not limited to, valid permits issued by a local enforcement agency. In
addition to the penalties available pursuant to Article 6 (commencing with
Section t 19320), a sponsor or practitioner who violates this subdivision
shall be subject to closure of the temporary body art event and a penalty not
to exceed three times the cost of the permit.
1 193 l 7.5. A local enforcement agency may establish a fee not to exceed
the amount necessary, but that is sufficient to cover, the actual costs of the
administration of Section 1 19317.
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Ch. 638 - 16 -
119318. (a) The sponsor shall obtain all necessary permits to conduct
business in the jurisdiction where the event will be held, including, but not
limited to, valid permits issued by a local enforcement agency. A local
enforcement agency may establish a tee not to exceed the amount necessary,
but that is sufficient to cover, the actual costs of the administration of this
section. In addition to the penalties available pursuant to Article 6
(commencing with Section 119320), a sponsor who violates this subdivision
shall be subject to closure of the temporary body art event and a penalty not
to exceed three times the cost of the permit.
(b) The sponsor of a temporary body art event shall be responsible for
ensuring the availability of support facilities and supplies for practitioners
and vendors, including, but not limited to:
(1) Access to a potable water supply.
(2) Restrooms that have flush toilets supplied with toilet paper, and hand
wash sinks supplied with hot and cold potable running water, soap, and
single-use paper towels to which practitioners have direct access.
(3) Sharps waste containers for each demonstration booth.
(4) The use of a licensed medical waste disposal company for removal
of all sharps waste containers used during the body art event.
(5) Frequent trash pickup from demonstration booths.
(6) An eye wash station.
(7) A decontamination and sterilization area that is separated from a
procedure area by at least five feet or by a cleanable barrier.
(8) Adequate backup supplies that have been stored in compliance with
subdivision (d) of Section l 19315 and that can be purchased by practitioners,
including, but not limited to:
(A) Presterilized tattoo needles.
(B) Presterilized needle tubes.
(C) Presterilized piercing instruments, including, but not limited to,
needles, receiving tubes, corks, marking tools, and forceps.
(D) Plastic bags, barrier film, clip cord covers, and plastic wrap.
(E) Ink cups.
(F) Nitrile and latex gloves.
(G) Single-use tubes of water-based and petroleum-based lubricants.
(H) Absorbent dressing materials.
(c) The name, telephone number, and directions to an emergency room
near the temporary body art event shall be posted in a conspicuous location.
(d) Each practitioner working in a booth at a temporary body art event
shall display his or her certificate of registration, or keep the certificate in
a folder that is available for inspection upon request of the enforcement
officer or a client.
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Article 6. Enforcement
l 19319. (a) An enforcement officer may enter a body art facility during
the facility's hours of operation and other reasonable times to do any of the
following:
(1) Conduct inspections, issue citations, and secure samples, photographs,
or other evidence from a body art facility, or any facility suspected of being
a body art facility.
(2) Check the Infection Prevention and Control Plan, required pursuant
to Section 119313, to determine if persons working in the facility are
following the plan, and to determine if the plan is in compliance with this
chapter.
(3) Secure as evidence documents, or copies of documents, including
the Infection Prevention and Control Plan, or any record, file, paper, process,
invoice, or receipt for the purpose of determining compliance with this
chapter.
(b) A written report shall be made and a copy shall be supplied or mailed
to the owner or practitioner at the completion of an inspection or
investigation.
(c) Based upon inspection findings or other evidence, an enforcement
officer may impound instruments that are found to be unsafe to use. Within
30 days, the local enforcement agency that has impounded the equipment
shall commence proceedings to release the instrument or to seek
administrative or legal remedy for its disposal.
(d) It is a violation of this chapter for the owner or a person working in
a body art facility to do any of the following:
(1) Conceal records or evidence, or to withhold evidence.
(2) Interfere with the performance of the duties of an enforcement officer.
(3) Make a false statement, representation, certification, record, report,
or otherwise falsify information required to be submitted or maintained
pursuant to this chapter.
119320. (a) A certificate of registration or a health permit may be
suspended by a local enforcement agency for a violation of this chapter.
(b) A body art facility or practitioner whose certificate of registration or
health permit has been suspended shall cease doing business until the
certificate or permit has been reinstated. Suspension of the registration of
one practitioner in a body art facility does not affect the status of other
practitioners in the facility unless the violation or violations are for conditions
or equipment that affects the ability of all the practitioners in the facility to
comply with the provisions of this chapter.
(c) A body art facility for which the health permit has been revoked shall
close and remain closed until a new health permit has been issued.
(d) Whenever an enforcement officer finds that a practitioner or body
art facility is not in compliance with the requirements of this chapter, the
enforcement officer shall issue a notice to comply or a notice of violation
to the registrant or permitholder setting forth the acts or omissions with
which the registrant or permitholder is charged, and informing him or her
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Ch. 638 - 18 -
of a right to a hearing, if requested, to show cause why the registration or
permit should not be suspended or revoked.
(e) (1) A written request for a hearing shall be made by the registrant or
permitholder within 15 calendar days after receipt of the notice.
(2) The hearing shall be held within l5 calendar days of the receipt of a
request for a hearing. Upon written request of the registrant or permitholder,
the hearing officer may postpone a hearing date, if circumstances warrant
the action.
(f) A failure to request a hearing within 15 calendar days after receipt of
the notice shall be deemed a waiver of the right to a hearing.
(g) The hearing officer shall issue a written notice of decision to the
registrant or permitholder within five working days following the hearing.
In the event of a suspension or revocation, the notice shall specify the acts
or omissions with which the registrant or permitholder is charged, and shall
state the terms of the suspension or that the registration or health permit has
been revoked.
(h) A certificate of registration or health permit may be reinstated or a
new certificate of registration or health permit issued if the local enforcement
agency determines that the conditions that prompted the suspension or
revocation no longer exist.
119321. !fan imminent health hazard is found, the enforcement officer
may suspend a registration temporarily and order the practitioner to cease
operation if the hazard is not corrected. If the hazard affects the entire body
art facility, then the entire facility may be closed immediately. Whenever
a registration or health permit is suspended as the result of an imminent
health hazard, the enforcement officer shall issue to the registrant or
permitholder a notice setting forth the acts or omissions being charged,
specifying the pertinent code section, and informing the registrant or
pcrmitholder of the right to a hearing.
1 19322. The local enforcement agency may, after providing opportunity
for a hearing, modify, suspend, or revoke a certificate of registration or a
health permit for serious or repeated violations of any requirement of this
chapter or for interference in the performance of the duty of the enforcement
otTcer.
1 19323. Performing body art without being registered, operating a body
art facility without a health permit, or operating a temporary body art event
without a permit shall be a misdemeanor. The local enforcement agency
may also assess an administrative penalty in an amount not less than
twenty-five dollars ($25) and not more than one thousand dollars ($1,000)
for violation of a provision of this chapter. All fines are to be retained by
the local enforcement agency for enforcement of the provisions of this
chapter.
1 19324. A city, county, or city and county may adopt regulations or
ordinances that do not conflict with, or arc more stringent than, the provisions
of this chapter as they relate to body art.
119324.5. The local fees imposed pursuant to this chapter shall not
exceed the reasonable costs to a local government for issuing licenses and
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permits, performing investigations, inspections, and audits, enforcing orders,
and the administrative enforcement and adjudication thereof.
Article 7. Mechanical Stud and Clasp Ear Piercing
119325. (a) The piercing of the ear with a mechanical stud and clasp
device does not constitute body art as defined in this chapter. It is the intent
of the Legislature, in enacting this article, to provide uniform and statewide
requirements for the performance of ear piercing with a mechanical stud
and clasp device. The piercing of an ear with a mechanical stud and clasp
device shall only be subject to the requirements in this article.
(b) The area within a facility where mechanical stud and clasp car piercing
is conducted shall be safe and sanitary and shall not constitute a threat to
the public health and safety, as reasonably determined by the local
enforcement agency.
(c) The mechanical stud and clasp device that is used to pierce an car
pursuant to this article shall be single-use, presterilized, stud and clasp only.
(d) The single-use mechanical stud and clasp device used to pierce an
car pursuant to this article shall meet all of the jewelry requirements in
subdivisions (a) and (b) of Section 119310.
l 19326. (a) The local enforcement agency may require a facility that
provides mechanical stud and clasp ear piercing services to submit a
notification form, which shall be provided by the local enforcement agency
in the jurisdiction in which the facility is located. If the local enforcement
agency requires this notification form, the form shall include all of the
following information:
(1) The address of all facilities within the jurisdiction where mechanical
stud and clasp car piercing will be performed.
(2) A statement that the mechanical stud and clasp car piercing will be
conducted in compliance with the requirements of this article.
(3) The contact information for the person responsible for compliance
with this article and who the local enforcement agency should contact
regarding complaints from the public regarding mechanical stud and clasp
ear piercing at a facility listed in paragraph (l ).
(b) Information for more than one location within a single jurisdiction
with the same owner or operator may be included on a single notification
form. If the local enforcement agency requires notification, it shall provide
a notification form that allows the owner or operator of more than one
facility in the jurisdiction to provide the required notification for all of its
facilities in a single form designed for that purpose.
(c) No person shall be required to provide notification until and unless
the local enforcement agency makes a form for this purpose available.
Facilities performing mechanical stud and clasp car piercing on the date the
local enforcement agency makes the form available shall have five months
from that date in which to complete and submit the form. Facilities that
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Ch. 638 - 20 -
begin performing mechanical stud and clasp ear piercing after the form is
made available shall be required to submit the form prior to offering services.
119327. (a) A person piercing an car with a mechanical stud and clasp
piercing device shall meet the following requirements before providing
mechanical stud and clasp ear piercing services:
(1) Is at least l 8 years of age.
(2) Received one hour of training that covers all of the following topics:
(A) Proper use of the mechanical stud and clasp ear piercing device.
(B) Types of bloodbome pathogens and the prevention of the transmission
of bloodborne communicable diseases.
(C) Proper hand hygiene.
(D) The safe and sanitary use of single-use equipment, including, but
not limited to, gloves, towels, and disinfectant wipes.
(3) If the person will also be piercing the cartilage of the upper car, that
person shall also receive training on proper techniques for this type of
piercing.
(b) The training requirements of subdivision (a) shall not apply to an
individual who was employed to perform mechanical stud and clasp ear
piercing prior to the effective date of this article.
119328. (a) A local enforcement agency may charge aone-time facility
notification fee in an amount between twenty-five dollars ($25) and forty-five
dollars ($45) for each facility operating pursuant to this article. The fee
charged shall not exceed the amount reasonably necessary to cover the actual
costs of administering and enforcing the provisions of this article.
(b) After December 31, 2015, a county may charge a different fee, set
by local ordinance, provided that the increased fee is necessary to cover the
actual costs of administering and enforcing the provisions of this article.
(c) The local enforcement agency may not charge a different fee for
facilities based on what part of the ear is being pierced.
SEC. 3. This act shall become operative on July 1, 2012.
SEC. 4. No reimbursement is required by this act pursuant to Section 6
of Article Xlll B of the California Constitution for certain costs that may
be incurred under this act because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to pay for
the program or level of service mandated by this act, within the meaning of
Section 17556 of the Government Code.
No reimbursement is required by this act pursuant to Section 6 of Article
X1I1 B of the California Constitution for those costs that may be incurred
by a local agency or school district because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty for a
crime or infraction, within the meaning of Section l 7556 of the Government
Code, or changes the definition of a crime within the meaning of Section 6
of Article XIII B of the California Constitution.
O
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ATTACHMENT D
CORRESPONDENCE
Reekstin, Scott
From: John Johnson [jahlove2000@hotmail.com]
Sent: Monday, October 10, 2011 7:39 PM
To: Reekstin, Scott; fleshskingrafix@gmail.com
Subject: RE: Revised Draft Body Art Ordinance
Hello Mr Reekstin,
Below are my suggestions regarding the proposed regulations for body art in Tustin. In my personal notes I highlighted a
tremendous amount of material I feel is outstanding. What's below are just some ideas I have that I hope can be useful.
As vice president of the Association of Professional Piercers I'd like to say we completely support regulations that make
our industry as safe as possible for everyone. It's important that regulations are clear, practical, and realistic.
4140.010 Definitions
(e) The earlobe and ear rim are excluded from the definition of body piercing. I'd like to suggest that ear lobe and rim
piercings are equally important as any other part of the ear and body and deserve the same amount of attention to
safety.
(r) I'd like to suggest a clear definition of "appropriate and approved method of testing to ensure sterilization." Leaving
this definition open to interpretation may be risky.
4140.020 Exposure Control Training
(d) (8) The word "sterile" is misused here. The environment of tattooing and piercing is not sterile, but aseptic. Also, the
word "disinfected" is misused to describe prepared skin. Disinfection is exclusive to hard surfaces. "clean" or "prepared"
skin would be more technically accurate.
4140.040 Body Art Facilities
(I) "All solid surfaces and and objects in the procedure area and preparation area shall be immediately cleaned..." seems
either vague or extreme. If this is to be interpreted literally, it takes us way beyond protocol for any general medical or
dentist's office. In my personal studio I would be disinfecting objects and surfaces that are not potentially contaminated.
My procedure area is large with 2 counter tops, 8 sets of cabinets, and 11 drawers, not including mirrors, doors, floors,
knobs, and handles. Section 4140.010 Definitions (n) allows for a procedure area to be either a room or portion of a
room. Practitioners and health officers may interpret this differently. I'd like to suggest a more practical standard might
be "any surface where hand washing is done, counters and portable stands used during the procedure, lamps, chairs, and
tables used by practitioners and clients must be immediately cleaned..."
4140.060 Cleaning, Sterilization, and Housekeeping
(a) This section does not allow for practitioners using Statim sterilizers. This is a type of autoclave developed years ago
for the dental industry that became very popular in the piercing industry. The manufacturer now makes a model
specifically for the tattoo industry. It's intended for fast sterilization just prior to any procedure, eliminating the need for
sterilizer pouches. This is becoming a standard machine in piercing studios and should be allowed in your regulations.
Reusable instruments need to be contaminated and pre-sterilized so they can be handled and stored safely, then
sterilized a second time just minutes before a new procedure. This is a very important advancement in sterilization for
the piercing industry and many piercers won't even work in studios without them. http://statim.us/
(b) I'm not sure why water is preferred for soaking instruments. I would only expect that to increase the bacterial load.
There are plenty of disinfectant and enrymatic soaking products intended for decontamination.
(c) I can't speak for every ultrasonic manufacturer, but I've never known of an ultrasonic intended for removal of gross
debris. I suggest that tools be scrubbed manually prior to any cycle in an ultrasonic.
4140.080
(d)(5) Be aware that a client's health and medical history is confidential information and client's have the right no to
answer any related questions.
4140.110 Tattoo and Permanent Cosmetics
(g) Piercing needles have been excluded from this section and not addressed in the next section "Body Piercing."
4140.120 Body Piercing
(b) There is a lot of confusion in the piercing industry of what exactly "implant grade" jewelry is. For example, many
piercers refer to 316LVM as implant grade stainless steel. The 316 series of steel in and of itself is not the implant
standard. Implant stainless steel is actually designated as ASTM-F-138. I suggest clearly defining the materials allowed
in initial piercings. You can find the requirements for APP members here, http://www.safepiercing.org/piercing/jewelry-
for-initial-piercings/. Also, you can find California regulations here,
http://www.dtsc.ca.gov/HazardousWaste/Jewelry/upload/jewelry-fart-sheet-052710.pdf While our state actually has
regulations for implant standard materials for initial piercings, they are completely unenforced, as far as I know. I
imagine less than 10% of piercing studios state wide are using qualified materials.
Thanks for your time and effort. I look forward to the November 1st hearing.
Sincerely,
John Johnson
Nlr Johnson,
~^~~~ received suggestions at the last Planning Commission meeting, which were incorporated into the draft ordinance_ I
rF~~_~~~nrnend that you forward your suggestions to me now rather than wait until the November 1 public hearing, so that
City staff can review your suggestions and discuss them with you in advance of the meeting. Ideally, it would be best to
Hive any suggested changes to me prior to the Planning Commission meeting tomorrow.
SCOTT REEKSTIN ~ SENIOR PLANNER
http://www.tu.stinca.org
ATTACHMENT E
PLANNING COMMISSION RESOLUTION NO. 4181
RESOLUTION NO. 4181
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING
THAT THE TUSTIN CITY COUNCIL APPROVE CODE
AMENDMENT 2011-06 (ORDINANCE 1407) AMENDING
PART 4 OF CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN
CITY CODE REGULATING THE INSPECTION OF BODY
ART FACILITIES BY THE ORANGE COUNTY HEALTH
CARE AGENCY; AMENDING PART 4 OF CHAPTER 1 OF
ARTICLE 3 ADDING DEFINITIONS PERTAINING TO
BODY ART; AMENDING PART 5 OF CHAPTER 6 OF
ARTICLE 3 PERTAINING TO A BODY ART PERMIT; AND
AMENDING SECTION 9232b OF PART 3 OF CHAPTER 2
OF ARTICLE 9 TO PERMIT BODY ART FACILITIES.
The Planning Commission of the City of Tustin hereby finds and determines as
follows:
A. That the proposed amendment to the Tustin City Code is necessary to: 1)
enable the inspection and regulation of body art facilities within the City of
Tustin by the Orange County Health Care Agency and the City of Tustin; 2)
establish a body art permit for body art practitioners; and 3) permit body art
facilities subject to operational requirements necessary and appropriate to
protect the health and safety of body art facilities.
B. That permanent cosmetics facilities are currently the only type of body art
facility permitted and regulated within the City of Tustin. Other types of
body art facilities include tattoo establishments and body piercing facilities.
C. That tattoo establishments and body piercing facilities are not listed as
permitted uses in the Tustin Zoning Code, and the Tustin City Code
contains no specific provisions regulating the location, development, or
operational characteristics of establishments where tattoos or body
piercings are placed on individuals.
D. That in a recent case, Anderson v. City of Hermosa Beach, the Ninth
Circuit Court of Appeals ruled that the City of Hermosa Beach's total
prohibition on the establishment and operation of tattoo parlors within the
city was unconstitutional, and that cities may only impose reasonable "time,
place, and manner" regulations on such activities. The Ninth Circuit held
that a tattoo, the process of tattooing, and the business of tattooing are
pure forms of expression fully protected by the First Amendment to the
United States Constitution, and that the City of Hermosa Beach's total ban
on tattoo parlors was not a reasonable "time, place, or manner" restriction.
Resolution No. 4181
CA 2011-06
Page 2
The Ninth Circuit's decision calls into question the effectiveness of the
Tustin City Code in regulating the act and/or business of tattooing and
addressing land uses related to tattooing.
E. That tattooing is an activity that, if undertaken in unsanitary conditions, can
lead to the transmission of infectious diseases, including hepatitis, syphilis,
tuberculosis, and HIV. Based upon the experience of other cities, it is
reasonable to conclude that similar negative effects could occur in the City
of Tustin as a result of the establishment or operation of tattoo
establishments that do not meet minimum sterilization, sanitation, and
safety standards.
F. That the City has received inquiries regarding the permitting and
establishment of tattoo establishments within the City. The issuance or
approval of any business license, permit or other entitlement for the
establishment or operation of tattoo establishments is a threat to the public
health, safety, and welfare in that there currently are no specific standards
or regulations in the Tustin City Code that comprehensively address the
potential negative effects associated with the location and operation of
such facilities. Absent reasonable time, place, and manner regulations
governing tattoo establishments, such uses could be established in areas
of the City where they are inconsistent and/or incompatible with the
surrounding land uses and/or operated under unsanitary conditions,
thereby increasing the risk of transmission of infectious diseases.
G. That the proposed amendment will establish body art facilities, including
body piercing, tattooing, or the application of permanent cosmetics, as a
permitted use within the City of Tustin Retail Commercial (C-1), Central
Commercial (C-2), Heavy Commercial (C-3), and Commercial General
(CG) Zoning Districts, subject to operational requirements, and establish
that all body art practitioners practicing at such facilities shall be licensed
as further described herein.
H. That on March 20, 2007, the Tustin City Council adopted Ordinance No.
1324 to enable the inspection and regulation of permanent cosmetics
facilities within the City of Tustin by the Orange County Health Department.
That on February 1, 2011, the Tustin City Council adopted Interim Urgency
Ordinance No. 1392 relating to the establishment or operation of tattoo
establishments.
J. That on March 1, 2011, the Tustin City Council adopted Interim Urgency
Ordinance No. 1396, which extended Interim Urgency Ordinance No. 1393
for an additional period of ten (10) months and fifteen (15) days.
Resolution No. 4181
CA 2011-06
Page 3
K. That the proposed amendment is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) (Title 14, of the
California Code of Regulations) because it has no potential for resulting in
physical change to the environment, directly or indirectly; it prevents
changes in the environment by requiring the approval of body art permits
for body art practitioners and imposing operational conditions on body art
facilities.
L. That on September 13, 2011, a public hearing was duly noticed and called
by the Tustin Planning Commission on Code Amendment 2011-06
(Ordinance No. 1407).
M. That the Tustin Planning Commission continued the public hearing to
September 27, 2011.
N. That on September 27, 2011, a public hearing was duly noticed, called and
held by the Tustin Planning Commission on Code Amendment 2011-06
(Ordinance No. 1407).
O. That the proposed amendments are consistent with the City of Tustin
General Plan and comply with Goal 4 of the Public Safety Element to
reduce the risk to the community's inhabitants from exposure to hazardous
materials and wastes.
The Planning Commission hereby recommends that the City Council adopt
Ordinance No. 1407 approving Code Amendment 2011-06 attached hereto as
Exhibit A, regarding body art facilities.
PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission
held on the 11th day of October, 2011.
1
J . T' MPS N
Chairperson
~~
ELIZABETH A. BINSACK
Planning Commission Secretary
Resolution No. 4181
CA 2011-06
Page 4
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning
Commission Secretary of the Planning Commission of the City of Tustin, California;
that Resolution No. 4181 was duly passed and adopted at a regular meeting of the
Tustin Planning Commission, held on the 11~h day of October, 2011.
,~
ELIZABETH A. BINSACK
Planning Commission Secretary
J
ii
ORDINANCE NO. 1407
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
AMENDING PART 4 OF CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN
CITY CODE REGULATING THE INSPECTION OF BODY ART
FACILITIES BY THE ORANGE COUNTY HEALTH CARE AGENCY;
AMENDING PART 4 OF CHAPTER 1 OF ARTICLE 3 ADDING
DEFINITIONS PERTAINING TO BODY ART; AMENDING PART 5 OF
CHAPTER 6 OF ARTICLE 3 PERTAINING TO A BODY ART PERMIT;
AND AMENDING SECTION 9232b OF PART 3 OF CHAPTER 2 OF
ARTICLE 9 TO PERMIT BODY ART FACILITIES.
The City Council of the City of Tustin hereby ordains as follows:
Section 1. The City Council finds and determines as follows:
A. That the proposed amendment to the Tustin City Code is necessary
to: 1) enable the inspection and regulation of body art facilities within
the City of Tustin by the Orange County Health Care Agency and the
City of Tustin; 2) establish a body art permit for body art practitioners;
and 3) permit body art facilities subject to operational requirements
necessary and appropriate to protect the health and safety of body art
facilities.
B. That permanent cosmetics facilities are currently the only type of body
art facility permitted and regulated within the City of Tustin. Other
types of body art facilities include tattoo establishments and body
piercing facilities.
C. Tattoo establishments and body piercing facilities are not listed as
permitted uses in the Tustin Zoning Code, and the Tustin City Code
contains no specific provisions regulating the location, development,
or operational characteristics of establishments where tattoos or body
piercings are placed on individuals.
D. In a recent case, Anderson v. City of Hermosa Beach, the Ninth
Circuit Court of Appeals ruled that the City of Hermosa Beach's total
prohibition on the establishment and operation of tattoo parlors within
the city was unconstitutional, and that cities may only impose
reasonable "time, place, and manner" regulations on such activities.
The Ninth Circuit held that a tattoo, the process of tattooing, and the
business of tattooing are pure forms of expression fully protected by
the First Amendment to the United States Constitution, and that the
City of Hermosa Beach's total ban on tattoo parlors was not a
reasonable "time, place, or manner" restriction. The Ninth Circuit's
decision calls into question the effectiveness of the Tustin City Code
in regulating the act and/or business of tattooing and addressing land
uses related to tattooing.
777346.3
Ordinance No. 1407
Page 2
E. Tattooing is an activity that, if undertaken in unsanitary conditions,
can lead to the transmission of infectious diseases, including
hepatitis, syphilis, tuberculosis, and HIV. Based upon the experience
of other cities, it is reasonable to conclude that similar negative
effects could occur in the City of Tustin as a result of the
establishment or operation of tattoo establishments that do not meet
minimum sterilization, sanitation, and safety standards.
F. The City has received inquiries regarding the permitting and
establishment of tattoo establishments within the City. The issuance
or approval of any business license, permit or other entitlement for the
establishment or operation of tattoo establishments is a threat to the
public health, safety, and welfare in that there currently are no specific
standards or regulations in the Tustin City Code that comprehensively
address the potential negative effects associated with the location
and operation of such facilities. Absent reasonable time, place, and
manner regulations governing tattoo establishments, such uses could
be established in areas of the City where they are inconsistent and/or
incompatible with the surrounding land uses and/or operated under
unsanitary conditions, thereby increasing the risk of transmission of
infectious diseases.
G. The City has completed a study, which is incorporated in the City
Council Report dated October 4, 2011, regarding appropriate
operational requirements necessary to protect the public health,
safety, and welfare of the community and employees of body art
facilities from impacts associated with the operation of body art
establishments.
H. That the proposed amendment will establish body art facilities,
including body piercing, tattooing, or the application of permanent
cosmetics, as a permitted use within the City of Tustin Retail
Commercial (C-1), Central Commercial (C-2), Heavy Commercial (C-
3), and Commercial General (CG) Zoning Districts, subject to
operational requirements established below, and establish that all
body art practitioners practicing at such facilities shall be licensed as
required herein-~y-t#e~it~y.
That on March 20, 2007, the Tustin City Council adopted Ordinance
No. 1324 to enable the inspection and regulation of permanent
cosmetics facilities within the City of Tustin by the Orange County
Health Department.
That on February 1, 2011, the Tustin City Council adopted Interim
Urgency Ordinance No. 1392 relating to the establishment or
operation of tattoo establishments.
K. That on March 1, 2011, the Tustin City Council adopted Interim
Urgency Ordinance No. 1396, which extended Interim Urgency
Ordinance No. 1393 for an additional period of ten (10) months and
fifteen (15) days.
777346.3
Ordinance No. 1407
Page 3
L. That the proposed amendment is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section
15378) (Title 14, of the California Code of Regulations) because it has
no potential for resulting in physical change to the environment,
directly or indirectly; it prevents changes in the environment by
requiring the approval of body art permits for body art practitioners
and imposing operational conditions on body art facilities.
M. That on September 27, 2011, the Tustin Planning Commission held a
public hearing on proposed Code Amendment 2011-006 and adopted
Resolution No. 4181 recommending that the Tustin City Council
approve Code Amendment 2011-006, subject to confirmation by the
Planning Commission as part of the Consent Calendar on October
11, 2011 .
N. That on November9stebe~18, 2011, a public hearing was duly
noticed, called, and held before the City Council concerning Code
Amendment 2011-006.
O. That the proposed amendments are consistent with the City of Tustin
General Plan and comply with Goal 4 of the Public Safety Element to
reduce the risk to the community's inhabitants from exposure to
hazardous materials and wastes.
Section II
PART 4
D
Part 4 of Chapter 1 of Article 4 is hereby amended to read as follows:
BODY ART FACILITIES
4140.010 DEFINITIONS
4140.020 EXPOSURE CONTROL TRAINING
4140.030 INFECTION PREVENTION AND CONTROL PLAN
4140.040 BODY ART FACILITIES
4140.050 PREEMPTION
4140.060 CLEANING, STERILIZATION, AND HOUSEKEEPING
4140.070 EQUIPMENT PURCHASED PRE-STERILIZED
4140.080 CLIENTS
4140.090 PRACTITIONER
4140.100 SKIN PREPARATION
4140.110 TATTOO AND PERMANENT COSMETIC APPLICATION
4140.120 BODY PIERCING
4140.130 SHARPS DISPOSAL
4140.140 TEMPORARY BODY ART FACILITIES
4140.150 MOBILE BODY ART FACILITIES
4140.160 ENFORCEMENT AUTHORITY
4140.170 REGISTRATION
4140.180 PERMIT AND FEE REQUIREMENTS
4140.190 PENALTIES
4140.200 PERMIT SUSPENSION OR REVOCATION
4140.210 HOURS OF OPERATION
777346.3
Ordinance No. 1407
Page 4
4140.220
4140.230
4140.010 DEFINITIONS
MANAGEMENT OF OPERATIONS
NUISANCE
[]
As used in this Chapter, unless the context otherwise requires, the following terms
shall have the meanings ascribed to them respectively:
(a) "Antiseptic" means a liquid or semi-liquid substance that is approved by the U.S. Food
and Drug Administration, as indicated on the label, to reduce the number of
microorganisms present on the skin and on mucosal surfaces.
(b) "Bloodborne pathogen(s)" means disease causing microorganisms that, when
present in the blood, can be transmitted to humans. These microorganisms include,
but are not limited to, Hepatitis B Virus (HBV), Hepatitis C Virus (HCV) and Human
Immunodeficiency Virus (HIV).
(c) "Body art" means the practice of physical body adornment including, but not limited
to, the following techniques: body piercing, tattooing or application of permanent
cosmetics.
(d) "Body art facility" means the area within a building or other location in which a
practitioner performs body piercing, tattooing or application of permanent cosmetics,
including the preparation and procedure area, as defined in this Chapter.
(e) "Body piercing" means the creation of an opening in the human body for the purpose
of inserting jewelry or decorative objects. This includes, but is not limited to, piercing
of an ear, lip, tongue, nose, belly button, cheek, forehead or eyebrow. Body piercing
does not, for the purpose of this Chapter, include piercing the leading edge or earlobe
of the ear with a sterile, disposable, single-use stud or solid needle that is applied
using a mechanical device to force the needle or stud through the ear.
(f) "Client" means any individual who receives a body piercing, tattoo or application of
permanent cosmetics from a practitioner as defined in this Chapter.
(g) "Disinfectant" means a product that is approved by the U.S. Environmental Protection
Agency, as indicated on the label, to reduce or eliminate the presence of disease
causing microorganisms.
(h) "Health Officer" means the Orange County Health Officer or designee.
(i) "Instrument" means any tattooing, body piercing or permanent cosmetics equipment
or device that comes into contact with intact skin, non-intact skin, or mucosal
surfaces. Such equipment includes, but is not limited to, needles, needle bars, needle
tubes, forceps, hemostats, tweezers, razors, razor blades, or other tools and devices
used to insert pigment or pierce the skin or mucosal surfaces of the human body.
Such equipment also includes studs, hoops, rings or other decorative jewelry,
materials or apparatuses inserted into any part of the body for the intended purpose
of placement in a hole resulting from the piercing.
_l
n
777346.3
Ordinance No. 1407
Page 5
(j) "Permanent cosmetics" means the application of pigments inserted into or under the
surface of human skin for the purpose of permanently changing the color or
appearance of the skin. This includes, but is not limited to, permanent eyeliner, eye
shadow, or lip color.
(k) "Permanent cosmetics facility" means the area within a building in which a practitioner
performs the application of permanent cosmetics, including the preparation and
procedure area, as defined in this Chapter.
(I) "Practitioner" means an individual who performs tattooing, body piercing, or who
applies permanent cosmetics as defined in this Chapter.
(m) "Preparation Area" means a room or a designated portion of a room that is used to
clean and sterilize reusable instruments that are used for tattooing, body piercing, or
permanent cosmetics.
(n) "Procedure area" means a room or a designated portion of a room where tattooing,
body piercing or the application of permanent cosmetics is performed.
(o) "Proprietor' means the person having general control and management over the
conduct of business at a body art facility, or the person operating such establishment,
whether or not such person is the legal owner of the premises or the business.
(p) "Purchased pre-sterilized equipment" means any individually packaged, single-use
instruments, devices and/or needles that are obtained after processing to render
them free of all microbial life forms. Each package shall have the manufacturer's
processing identification number and date of expiration.
(q) "Sharps waste" means any instrument or object, including but not limited to needles
or razor blades, that has been used to penetrate the skin or mucosa to perform
tattooing, body piercing or the application of permanent cosmetics, or otherwise
contaminated by coming into contact with blood or surfaces that have not been
disinfected or sterilized.
(r) "Sterilization" means the complete destruction of all microbial life forms including
spores. Sterilization includes the use of an appropriate and approved method of
testing so as to ensure sterilization.
(s) "Tattooing" means to pierce or puncture the human skin with a needle or other
instrument for the purpose of the application of pigments or the inserting of pigment
under the surface of the skin; the application of pigments or inks inserted into or
under the skin for the purpose of producing a mark or by production of scars.
4140.020 EXPOSURE CONTROL TRAINING
(a) Prior to registration as a body art practitioner with the Orange County Health Care
Agency, all body art practitioners shall complete and submit proof of completion to the
Health Officer se~-fy, of an Exposure Control Training Program that meets or
exceeds the requirements of this Chapter.
777346.3
Ordinance No. 1407
Page 6
(b) The person conducting the training shall be knowledgeable in the subject matter
covered by the elements defined in section 4140.020(d).
(c) The organization providing the Exposure Control Training shall provide appropriate
written training materials to each trainee.
(d) The content of the Exposure Control Training Program shall include:
(1) California Occupational Safety and Health Administration Bloodbome Pathogens
Standard and other applicable standards and regulations with pertinent
explanations.
(2) The causes, control, and symptoms of the diseases caused by bloodborne
pathogens.
(3) The modes of transmission of bloodborne pathogens.
(4) A discussion of risks involved in the application of body art and how they may
lead to exposure to bloodborne pathogens for the client or body art practitioner.
(5) The use of personal protective equipment such as disposable gloves and an
explanation of the limitations of the equipment.
(6) The importance of hand washing and a demonstration of the hand washing
process as described in Section 4140.090.
(7) The types, proper technique and order of tasks before and after putting on and
removing gloves to avoid cross-contamination.
(8) Activities that compromise a disinfected work area, a sterile procedure site, inks
and pigments, sterile instruments and disinfected skin area.
(9) Choosing, using and storing disinfectants and antiseptics.
(10) Signs required for contaminated materials and the importance of labeling
chemicals and supplies.
(11) Information on Hepatitis B vaccine, including its efficacy, safety and method of
administration.
(12) What constitutes a bloodborne pathogen exposure incident, including:
a. How the exposure occurred and what actions are to be taken to prevent or
minimize future exposures.
b. Risk of infection following a bloodborne pathogen exposure incident.
c. Procedures to be followed after an exposure incident, including medical
follow-up.
d. Opportunity for interactive questions and answers with the instructor.
777346.3
Ordinance No. 1407
Page 7
4140.030 INFECTION PREVENTION AND CONTROL PLAN
(a) Each proprietor shall establish, maintain and follow, at each body art facility, a written
Infection Prevention and Control Plan.
(b) The Infection Prevention and Control Plan shall include, at a minimum, the following:
(1) Procedures for cleaning and disinfection of surfaces in the preparation and
procedure areas.
(2) Procedures for maintaining the sterility or integrity of instruments, equipment and
other material used during tattooing, body piercing, or permanent cosmetics.
(3) Procedures for cleaning, packaging, sterilizing, and storing reusable instruments,
and equipment.
(4) Procedures for safe handling and disposal of sharps waste.
(5) Inventory (names, manufacturers, container size) of all chemicals and
disinfectants and their intended use.
(c) The Infection Prevention and Control Plan shall be revised by the proprietor
whenever changes in practices or procedures are made, within thirty (30) days of a
c_h_ange in practices or procedures.
(d) The proprietor shall be responsible for ensuring that the Infection Prevention and
Control Plan is followed.
4140.040 BODY ART FACILITIES
(a) The health permit shall be posted in a conspicuous place in the lobby of the body art
facility.
(b) Body art facilities shall not be used as a food establishment, for human habitation or
any other use which may cause contamination of instruments or equipment used for
body art activities.
(c) The floors, furnishings and equipment of body art facilities shall be kept clean and
sanitary at all times during business hours.
(d) Adequate lighting and ventilation shall be provided in the preparation and procedure
areas.
(e) Adequate toilet facilities, as required by the Tustin City Code, shall be available.
Toilet rooms and bathrooms shall not be used for the storage of instruments, or other
supplies used for body art activities, and shall be kept clean and sanitary at all times.
(f) Rooms used for tattooing, body piercing or permanent cosmetic procedures shall be
separated by a wall or partition from those areas used for nail, hair and other
activities.
777346.3
Ordinance No. 1407
Page 8
(g) All sinks shall be supplied with hot (110°F minimum) and cold running water.
(h) A sink that is readily accessible to the body art practitioner shalt be provided and
equipped with liquid soap and single use paper towels dispensed from wall-mounted
dispensers that protect the supply from contamination.
(i) Pets or other animals shall not be allowed in the body art facility, except for trained
guide or assistance animals for the disabled. No trained guide or assistance animal
shall be allowed in the procedure or preparation area.
Q) No person shall utilize or maintain in a body art facility equipment that does not
comply with the requirements of this Chapter.
(k) The proprietor shall maintain the body art facility and the general premises under the
control of the proprietor in a clean and sanitary manner.
(I) All solid surfaces and objects in the procedure area and preparation area shall be
immediately cleaned and disinfected after each use with an appropriate bleach
solution or other isinfectant-tk-a4
. Manufacturer's instructions for concentration, contact
time, and disposal requirements for all disinfectants must be observed.
(m)The practitioner shall wear disposable gloves on both hands when touching, cleaning
or handling a surface or object soiled or potentially soiled with blood. Disposable
gloves worn by the body art practitioner shall be promptly removed, and hands
immediately washed whenever the practitioner leaves a procedure or preparation
area.
(n) Each procedure and preparation area shall have waste receptacles, which are lined
with plastic bags manufactured for use in waste containers that fold over the top
margin of the waste container.
4140.050 PREEMPTION
The provisions of this Chapter are intended to supplement applicable state law and to
be in addition to, and not in conflict with such laws. Each provision shall remain in effect until
the enactment of state laws or the promulgation of state regulations that conflict with or
otherwise preempt the authority of the County of Orange or the City of Tustin to control the
conduct described in this Chapter.
4140.060 CLEANING, STERILIZATION, AND HOUSEKEEPING
(a) Instruments that pierce the skin or touch non-intact skin that will be reused shall be
cleaned, packaged in appropriately labeled sterilizer pouches and sterilized prior to
reuse.
(b) Used instruments that will be sterilized and reused shall be transported dry and then
placed in a container of sleafl--water until cleaned and sterilized. Used instruments
must be kept physically separated from sterilized or unused disposable instruments.
Disposable instruments must be disposed of directly into a sharps container or into
777346.3
Ordinance No. 1407
Page 9
the appropriate trash receptacle after use and shall be disposed of as required
herein.
(c) Ultrasonic cleaners~sed; shall be available, maintained and operated according to
manufacturer's instructions.
mo(d) Clean instruments to be sterilized shall be first placed in sterilizer pouches that
contain either a sterilizer indicator or internal temperature indicator. Each pack shall
contain instruments for not more than one client. The outside of the pack shall be
labeled with the name of the instrument, date sterilized and initials of the person
operating the equipment.
(-€3(e) Instruments must be repackaged and re-sterilized if the pouch is tom or
otherwise compromised, if the indicator shows that adequate temperature was not
reached or if the item is not used within 6 months of the date of sterilization.
(~ f -Sterilized instruments must be maintained and stored in sterilized pouches
until use.
~ (#)(g) Sterilizers shall be operated according to manufacturer's instructions. If
manufacturer's instructions cannot be obtained, steam sterilization shall be
accomplished in an autoclave with at least 15 pounds of pressure per square inch at
a temperature of 250 degrees Fahrenheit for at least 30 minutes or as instructed by
the local Health Officer should the standards for sterilization change from time to time.
(+)(h) Liquid sterilants shall not be used to sterilize instruments.
Vi(i) Sterilized instruments shall be placed in clean, dry, labeled containers or
stored in a labeled cabinet that is protected from dust and water contamination.
(~-}!i) Sterilization equipment shall meet the following requirements:
(1) Only sterilizers intended for medical instruments shall be used. Sterilization
equipment shall be cleaned, and maintained according to manufacturer's
instructions.
(2) Sterilization equipment shall be tested after the initial installation, after any major
repair, and at the frequency recommended by the manufacturer. If no
manufacturer's recommendation can be found, then the unit shall be tested at
least weekly utilizing a biological monitoring system appropriate for the sterilizer
type.
(3) Biological indicator test results shall be maintained on site and available for
review for a period of two years subsequent to the date of the results.
(I) A written log of each sterilization cycle shall be maintained on-site and available for
review for a period of two years, and shall include the following information:
777346.3
Ordinance No. 1407
Page 10
(1) Date of load.
(2) The contents of the load.
(3) The exposure time and temperature.
(4) The results of the chemical indicator.
4140.070 EQUIPMENT PURCHASED PRE-STERILIZED
(a) A practitioner using only purchased, disposable, single use and pre-sterilized
instruments shall not be required to have sterilization equipment.
(b) Invoices for the purchase of all pre-sterilized instruments must be maintained onsite
and available for review for a period of two years after purchase. Required invoices
include but are not limited to combo couplers, needle chambers, barrels, casings, tips
and needles.
4140.080 CLIENTS
(a) No body art procedure shall be performed on skin surface areas containing any rash,
pimples, boils, or infection or otherwise manifesting any evidence of unhealthy
conditions including but not limited to any evidence of inflammation, such as redness,
swelling, infection, or open or draining lesions.
(b) Prior to receiving a tattoo, body piercing or permanent cosmetics, the client shall
read, sign and receive a copy of an informed consent form and post-procedure
instructions appropriate to the procedure.
(c) A copy of the signed informed consent form and post procedure instructions for all
body art procedures must be maintained onsite and available for review for a period
of two years after the procedure is performed.
(d) The consent form and post-procedure instructions shall include at a minimum, the
following:
(1) Record of information from the client's picture identification showing the name,
date of birth, gender, address of client, and driver's license or identification card
number.
(2) A summary, including the date, location and description of the procedure.
(3) What to expect following the procedure, including any medical complications
that may occur as a result of the procedure.
(4) A statement regarding the permanent nature of body piercing, tattooing or
permanent cosmetics.
(5) A questionnaire regarding a client history of herpes, diabetes, allergic reactions
to latex or antibiotics, hemophilia or any other bleeding disorder or the use of
777346.3
Ordinance No. 1407
Page 11
anticoagulants, which may prevent the healing of the site where the tattoo or
permanent cosmetics were applied, and of cardiac valve disease or of being
prescribed antibiotics prior to dental or surgical procedures.
(6) Post-procedure instructions on the care of the site of the tattoo, body piercing, or
permanent cosmetics.
(7) Post-procedure restrictions on activities such as bathing, swimming, gardening
or contact with animals.
(8) Information regarding signs and symptoms of infection and to immediately
consult a physician if any of the listed signs and symptoms of infection occur.
4140.090 PRACTITIONER
(a) No body art operation shall be performed unless the practitioner is free of pustular
skin lesions and any communicable diseases that could be transmitted in the normal
practice of body art.
(b) No practitioner shall eat, drink or smoke while performing a body art procedure.
(c) No practitioner shall perform a body art procedure with unclean hands. For purposes
of this section, hands shall not be considered clean unless they have been thoroughly
washed with soap from a single service dispenser and warm water vigorously rubbing
all surfaces of lathered hands for at least ten (10) seconds, followed by thorough
rinsing under a stream of water. Hands shall be dried using single service towels from
a sanitary dispenser or hot air blower. Practitioners shall wear new, disposable exam
gloves for every client during the procedure. Gloves shall be discarded between each
client, and hands shall be washed each time gloves are changed. If a glove is
pierced, torn, or contaminated by coming into contact with any other person, or
contaminated surface, both gloves shall be removed and discarded. A single pair of
gloves shall not be used on more than one person.
4140.100 SKIN PREPARATION
No body art operation shall be performed unless the skin is adequately prepared prior
to the operation. For purposes of this section, skin shall be considered properly prepared if it
is thoroughly cleaned with an antiseptic according to manufacturer's instructions. If
necessary, the skin shall be shaved with a new, single use disposable razor.
4140.110 TATTOO AND PERMANENT COSMETICS APPLICATION
(a) All inks, pigments, petroleum jellies, soaps, and other reusable products used in a
procedure shall be dispensed from containers in a manner to prevent contamination
of the original container and its contents.
(b) Pigments shall be placed into clean single use cups or caps that shall be disposed of
immediately in an appropriate waste receptacle upon completion of the procedure.
(c) Only single-use rinse cups shall be used with procedures, and they shall be
disposed of immediately upon completion of the procedure.
777346.3
Ordinance No. 1407
Page 12
presed~e-
(a)jd) All inks, dyes or pigments used shall be commercially manufactured for the
procedure and shall be used according to manufacturer's instructions.
(~fe) All products applied to the skin including stencils shall be single use and
disposed into a waste receptacle after the procedure.
(~ f~_Needles and needle bars shall be sterilized prior to tattooing or application of
permanent cosmetics or shall be purchased pre-sterilized. Needles shall be used only
once and then disposed of.
in a sharps container.
(#}(4) If a rotary pen, or traditional coil machine that reuses components is used,
then the use of sterilization equipment shall be required for sterilization of the
reusable parts that make contact with the client or blood.
{+}(h) All rotary pens and other devices used to apply pigments must be designed
and used to prevent backflow of pigments into the machine.
4140.120 BODY PIERCING
(a) All jewelry or other objects to be placed in newly pierced skin shall be sterilized, or
purchased pre-sterilized, be in good condition, and be designed and manufactured for
insertion into the intended body part.
(b) Only jewelry or other objects made of implant grade stainless steel, solid 14K through
24K gold, niobium, titanium, platinum or other materials determined to be equally bio-
compatible shall be placed in newly pierced skin.
4140.130 SHARPS DISPOSAL
(a) Each procedure area shall have a container for the disposal of sharps (needles, razor
blades, etc.) waste that is rigid, puncture resistant, leak proof and that is closeable
and sealable so that when sealed, the container cannot be reopened without great
difficulty. The container must be labeled with the words "sharps waste" or with the
international biohazard symbol and the word "BIOHAZARD."
(b) All sharps waste produced during the process of tattooing, body piercing and
permanent cosmetics shall be disposed of by one of the following methods:
(1) Steam sterilized on-site and disposed of as solid waste. If this method is utilized,
a chemical indicator strip or tape that indicates that the container has been
treated must be affixed prior to sterilization, and shall stay affixed to the
container when it is disposed.
777346.3
Ordinance No. 1407
Page 13
(2) Treated on-site by a method approved by the Health Officer, and disposed of as
solid waste.
(3) Removal and disposal through use of a Registered Medical Waste Hauler in
accordance with the provisions of the California Medical Waste Management
Act. Tracking documents must be maintained on-site and be available for review
for a period of two years from the date of removal from the body art facility.
4140.140 TEMPORARY BODY ART FACILITIES
Temporary body art facilities shall be prohibited in the City of Tustin.
4140.150 MOBILE BODY ART FACILITIES
Mobile body art facilities shall be prohibited in the City of Tustin.
4140.160 ENFORCEMENT AUTHORITY
The Health Officer or his or her designee is charged with the enforcement of this
Chapter, except for Sections 4140.210, 4140.220 and 4140.230. The City of Tustin Police
Department and the City of Tustin Code Enforcement Officer are also authorized to enforce
this ordinance. The Health Officer may, during the establishment's hours of operation and
other reasonable times, enter, inspect, search and secure samples, photographs, or other
evidence from any body art facility, or any location suspected of being a body art facility, for
the purpose of enforcing this Chapter. It is a violation of this Chapter for any person to refuse
to permit entry or inspection, the taking of samples or other evidence, or access to the facility
in order to copy any record as authorized by this Chapter, or to conceal any samples or
evidence, or withhold evidence concerning them. A written report of the inspection shall be
made and a copy shall be supplied or mailed to the proprietor or practitioner of the body art
facility.
4140.170 REGISTRATION
(a) Every practitioner as defined in this Chapter shall register with the
Health Officer See-Agens~r-and shall have on display so as to be readily visible to the
public proof that shows that the practitioner has registered, as specified in Health and
Safety Code Section 119303.
(b) Registration of all practitioners is required every three years.
4140.180 PERMIT AND FEE REQUIREMENTS
A body art facility shalt not be open for business without: (1) at least one valid body
art permit issued by the Director of Community Development to a practitioner practicing body
art at that location during operating hours, (2) a valid City business license, and (3) a valid
County health permit. The Health Officer shall issue a health permit when inspection has
determined that the proposed body art facility and its method of operation will conform to the
requirements of this Chapter. A health permit, once issued, is nontransferable. Ahealth
permit shall be valid only for the proprietor and location approved. The Orange County Board
of Supervisors shall adopt fees for the health permit, practitioner registration, and related
777346.3
Ordinance No. 1407
Page 14
services. Fees shall be sufficient to cover the actual expenses of administering and enforcing
this program.
4140.190 PENALTIES
Violation of any section of this Chapter by the proprietor or practitioner shall constitute
a misdemeanor and upon conviction thereof shall be punishable by a fine not to exceed one
thousand dollars ($1,000.00) per day per violation or by imprisonment in the county jail for a
term not exceeding six (6) months, or both such fine and imprisonment. Each day the
violation continues and is not corrected shall be a treated as a separate and distinct violation.
4140.200 PERMIT SUSPENSION OR REVOCATION
(a) Whenever the Health Officer finds that a body art facility is not in compliance with the
requirements of this Chapter, a written inspection notice shall be issued to the
proprietor. If the proprietor fails to comply within the noted timeframe, the Health
Officer shall issue to the proprietor, a notice of violation setting forth the acts or
omissions with which the proprietor is charged. Failure to comply with the Notice of
Violation within the noted timeframe may result in health permit suspension.
(b) If any immediate danger to the public health or safety is found, unless the danger is
immediately corrected, the Health Officer may temporarily suspend the permit and
order the body art facility immediately closed. Immediate danger means any
condition, based upon inspection findings or other evidence that may cause disease
transmission, including, but not limited to:
(1) Unclean or unsanitary floors furnishings toilet facilities, and equipment of the
body art facility;
(2) Inadequate sterilization of equipment;
(3) Lack of appropriate disposal receptacles and methods;
(4) Sewage contamination;
(5) Lack of potable water supply;
(6) Or any other condition, which in the opinion of the Health Officer, causes
immediate danger to public health and safety and requires temporary
suspension as noted above.
(c) Whenever a health permit is suspended as the result of an immediate danger to the
public health or safety, the Health Officer shall issue to the proprietor a notice setting
forth the acts or omissions with which the proprietor is charged.
(d) Any body art facility for which the health permit has been suspended shall close and
remain closed until the health permit has been reinstated.
1
777346.3
Ordinance No. 1407
Page 15
(e) Where grounds for denial, suspension, non-renewal or revocation of a health permit
exist, the Orange County Sheriff, Health Officer or Code Enforcement Officer shall
serve the applicant or permit holder with a notice which shall state the reasons for the
proposed action, the effective date of the action, and of the right to appeal the action.
(f) Appeal shall be made by filing a written notice of appeal setting out the action
appealed from, the grounds of the appeal and the facts upon which the appeal is
based. The notice of appeal shall be filed with the Clerk of the Board of Supervisors
not more than thirty (30) days after service of the notice of proposed action. A copy of
the notice appealed shall be attached to the notice of appeal. Notice of the date, time,
and place of the hearing on the appeal shall be mailed at least ten (10) days prior to
the date of the hearing by certified mail, return receipt requested, with proof of service
attached, addressed to the address on the permit.
(g) Hearing on the appeal shall be conducted by a Hearing Officer who shall preside over
the hearing, take evidence on the appeal and determine whether, on the basis of a
preponderance of the evidence, the appealed action shall be upheld. The Hearing
Officer shall render a written decision not less than forty-five (45) days after the date
of the appeal hearing. The decision of the Hearing Officer shall be final.
4140.210 HOURS OF OPERATION
(a) No body art facility shall operate except between the hours of 8 a.m. and 10 p.m.
Sunday through Thursday and between 8 a.m. and 12 a.m. on Friday and Saturday.
(b) The hours of operation shall be posted in a conspicuous place in the lobby of the
establishment and in a window or other location visible from the outside.
4140.220 MANAGEMENT OF OPERATIONS
(a) Each body art facility shall have a manager on the premises during all hours of
operation who shall be responsible for the operations and maintenance of the facility,
for compliance with all licensing requirements and to observe and supervise the
actions of all persons on the premises.
(b) Each body art facility shall provide a lobby or other seating area where customers
and other invitees of the business may be seated while waiting or otherwise not
having body art applied.
(c) No body art facility shall knowingly permit loud, boisterous, lewd, violent or
threatening behavior by clients or staff while in the facility or in any parking lot or
other adjacent area under the control of the body art facility.
4140.230 NUISANCE
(a) No body art facility shall be operated in a manner which constitutes a nuisance.
(b) Operation of a body art facility in violation of this Chapter or applicable penal or health
statute of the State of California shall constitute a public nuisance.
777346.3
Ordinance No. 1407
Page 16
(c) A body art facility may be found to be a nuisance on the basis of multiple violations of
this Chapter, or any penal or health statute of the State of California or of multiple
complaints which have not been resolved against the proprietor.
(d) Nuisance determinations and abatement shall be made and performed in the manner
set forth in Sections 3-14-2 and following of the Codified Ordinances of the County of
Orange.
Section III. Section 3141 of Part 4 of Chapter 1 of Article 3 is hereby amended to add the
following definitions:
Body art. The practice of physical body adornment including, but not limited to, the
following techniques: body piercing, tattooing or application of permanent cosmetics.
Body art facility. The area within a building or other location in which a practitioner
performs body piercing, tattooing or application of permanent cosmetics, as defined in this
Chapter, including the preparation and procedure area.
Body piercing. The creation of an opening in the human body for the purpose of
inserting jewelry or decorative objects. This includes, but is not limited to, piercing of an ear,
lip, tongue, nose, belly button, cheek, forehead or eyebrow. Body piercing does not, for the
purpose of this Chapter, include piercing the leading edge or earlobe of the ear with a sterile,
disposable, single-use stud or solid needle that is applied using a mechanical device to force
the needle or stud through the ear.
Tattooing. To pierce or puncture the human skin with a needle or other instrument for
the purpose of the application of pigments or the inserting of pigment under the surface of
the skin; the application of pigments or inks inserted into or under the skin for the purpose of
producing a mark or by production of scars.
Section IV. Part 5 of Chapter 6 of Article 3 is hereby amended to read as follows:
Part 5 BODY ART
3651 PERMIT REQUIRED
No person shall engage in the business of applying body art without obtaining a body
art permit issued by the Director of Finance. No person shall engage in the business of
applying body art except at aduly-licensed body art facility specified in the County health
permit registration form and in the City body art permit as required herein.
This Part does not restrict the activities of any physician or surgeon licensed under
Chapter 5 (commencing with Section 2000) of Division 2 of the Health and Safety Code.
3652 PREREQUISITES TO OBTAINING PERMIT
No person shall be eligible to receive a body art permit until such person has
obtained a valid County health permit for a body art facility or until such person is employed
by a body art facility with a valid County health permit.
777346.3
Ordinance No. 1407
Page 17
Any person who wishes to obtain a body art permit to engage in the business of
applying body art shall provide proof of: (1) registration with the 6e~#y-Health Officer
9epartr~er~t, (2) payment of an annual County inspection fee, and (3) address(es) where the
business is to be conducted pursuant to Health and Safety Code Section 119303.
3653 APPLICATION REQUIREMENT
In addition to providing the information required on the City's application form, the
applicant shall provide evidence that a complete set of fingerprints of the applicant was taken
through the Livescan service.
3654 OPERATIONAL REGULATIONS
Every body art facility shall be open for inspection by any officer of the City of Tustin
at all times during which body art services are being provided.
A permittee shall not:
(1) Do business at any location not specified in the County's registration form or
City permit; or
(2) Violate the sterilization, sanitation, and safety standards adopted by the State
Department of Health Services.
Section V. Section 9232a.2. of Part 3 of Chapter 2 of Article 9 is hereby amended to
sequentially reletter item numbers (d) through (s) and include body art
facilities as item (d) as follows:
(d) Body art facilities (as defined in section 3141, and subject to the
requirements of Part 4 of Chapter 1 of Article 4)
Section VI.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for
any reason determined to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Tustin hereby declares that it would have
adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion
thereof irrespective of the fact that any one or more sections, subsections, sentences,
clauses, phrases, or portions be declared invalid or unconstitutional.
J
777346.3
Ordinance No. 1407
Page 18
PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular meeting on
the 1~"'~ day of November-9stebef, 2011.
JERRY AMANTE
Mayor
ATTEST:
PAMELA STOKER
City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1407
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of
the City of Tustin is 5; that the above and foregoing Ordinance No. 1407 was duly and
regularly introduced at a regular meeting of the Tustin City Council, held on the 1S`~~ day of
November8stebe~, 2011 and was given its second reading, passed, and adopted at a
regular meeting of the City Council held on the 156`L day of November, 2011 by the following
vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
PAMELA STOKER
City Clerk
L
777346.3
ATTACHMENT
EXCERPTS FROM PLANNING COMMISSION MINUTES:
9/13/11, 9/27/11, AND 10/11 /11
l~.{
The Public Hearing opened at 8:18 p.m.
The applicant, Chris Kim stepped forward. Mr. Kim spoke in
favor of the Baden Baden restaurant operating past midnight.
He stated he needs more hours of operation to make a profit on
the restaurant, and that many customers leave his business
when they realize it closes at midnight.
Lieutenant John Strain stepped forward representing the Tustin
Police Department. Lt. Strain stated the police department has
had multiple calls for service to the restaurant, and that it would
exacerbate an existing negative condition to extend the hours of
operation.
The Public Hearing closed at 8:26 p.m.
The Planning Commission discussed their position regarding
Resolution No. 4180 and expressed their concerns regarding extending
the operating hours of Baden Baden restaurant.
~`
,~ L,4~
Moore Requested a modification to Resolution No. 4180 under finding "D"
number 1 which currently reads, "...would change the nature of the use
to a bar or night club." Would like the modification to read, "... is more
similar to a bar or night club."
Motion: It was moved by Puckett, seconded by Eckman to adopt Resolution No.
4180 as amended. Motion carried 5-0.
Continued to the 5. CODE AMENDMENT 2011-06, DRAFT ORDINANCE NO.
regular Planning 1407 -BODY ART ORDINANCE
Commission meeting
on September 27, The proposed code amendment would establish body art
2011 facilities, including body piercing, tattooing, or the application of
permanent cosmetics, as a permitted use within the City of
Tustin Retail Commercial (C-1 ), Central Commercial (C-2),
Heavy Commercial (C-3), and Commercial General (CG)
Zoning Districts, subject to operational requirements, and
establish that all body art practitioners practicing at such
facilities shall be licensed by the City. In addition, under
existing Code provisions body art facilities could be permitted
in other zoning districts if the Community Development Director
and/or Planning Commission were to determine that a body art
facility is similar to another permitted use.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4181,
recommending that the Tustin City Council adopt Draft
E-
Minutes -Planning Commission September 13, 2011 -Page 5
Ordinance No. 1407, amending Tustin City Code Section 4140
to regulate the inspection of body art facilities by the Orange
County Health Care Agency; amending Section 3141 to add
definitions pertaining to body art; amending Sections 3651-
3654 pertaining to a body art permit; and amending Section
9232b to permit body art facilities in certain commercial zones.
ENVIRONMENTAL DETERMINATION:
Proposed Code Amendment 2011-006 is not subject to the
California Environmental Quality Act ("CEQA") pursuant to
CEQA Guidelines Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical
change in the environment) and 15060(c)(3) (the activity is not
a project as defined in Section 15378) (Title 14, of the
California Code of Regulations) because it has no potential for
resulting in physical change to the environment, directly or
indirectly; it prevents changes in the environment by requiring
the approval of body art permits for body art practitioners and
imposing operational conditions on body art facilities.
At the opening of the Planning Commission meeting, Chair Thompson
proposed that the item be continued to the next regularly scheduled
Planning Commission meeting on September 27, 2011. None
dissented.
None REGULAR BUSINESS
STAFF CONCERNS:
6. REPORT OF ACTIONS TAKEN AT THE SEPTEMBER 6, 2011,
CITY COUNCIL MEETING.
The Director noted she was available to answer any questions the
Planning Commission had regarding the September 6, 2011, City
Council meeting.
COMMISSION CONCERNS:
Eckman Thanked staff for their work on this evening's presentations,
Moore Attended the 9-11 Remembrance Ceremony. Stated it was a
great event.
Kozak Thanked staff for their work, particularly on the Nonconforming
Structures, Uses, and Lots document;
• Attended the CPF Mills Act Workshop with Commissioner
Puckett;
Minutes -Planning Commission September 13, 2011 -Page 6
one portion of work which will be done at night; however, it
should not negatively impact the surrounding neighborhoods.
Ensured the Commission that the site will be monitored by
security, and that any night-lighting utilized at the site will be
turned downward as to not reflect into nearby homes.
Alfredo de Valle stepped forward representing the Tustin
Homeowners Association. He stated the homeowners' primary
concems are noise, and the hours of construction at the
site. Stated the noise in the past has occurred as early as 5:00
a.m., and would like it to be regulated by the noise ordinance.
Added that dust in the area is already an issue due to the
train, and was concerned that the amount of dust
blowing into their homes will increase due to the location of
the site.
The Public Hearing closed at 7:27 p.m.
The Planning Commission renewed their concerns generally
regarding screening the site, controlling the loose dirt from the
stockpile, and compliance with the BMPs.
Kozak Recommended an addition to Condition of Approval 2.2 clarifying that
graffiti be removed within 24 hours of observation. Also
recommended that Flatiron, or a representative thereof, notify
surrounding homeowners when night-work will be taking place.
Thompson Requested that staff reduce ambiguity in Resolution No. 4182
regarding loose dirt and dirt from the stockpile. Requested that in
Condition of Approval 2.4, the hours of operation be specifically listed
due to public concern expressed regarding the matter. Additionally
add language to ensure compliance with AQMD and dust control,
adequate screening on all sides of the site, lighting, and approval of
time extensions on astaff-level.
Motion: It was moved by Thompson, seconded by Puckett, to adopt
Resolution No. 4182 with the discussed amendments. Motion carried
5-0.
Approved Resolution 4. CODE AMENDMENT 2011-06, DRAFT ORDINANCE NO. .....
No. 4181 as amended 1407 -BODY ART ORDINANCE.
The proposed code amendment would establish body art
facilities, including body piercing, tattooing, or the application
of permanent cosmetics, as a permitted use within the City
of Tustin Retail Commercial (C-1), Central Commercial (C-
2), Heavy Commercial (C-3), and Commercial General (CG)
Zoning Districts, subject to operational requirements, and
Minutes -Planning Commission September 27, 2011 -Page 3
establish that all body art practitioners practicing at such
facilities shall be licensed by the City. In addition, under
existing Code provisions body art facilities could be
permitted in other zoning districts if the Community
Development Director and/or Planning Commission were to
determine that a body art facility is similar to another
permitted use.
ENVIRONMENTAL DETERMINATION:
Proposed Code Amendment 2011-006 is not subject to the
California Environmental Quality Act ("CEQA") pursuant to
CEQA Guidelines Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical
change in the environment) and 15060(c)(3) (the activity is
not a project as defined in Section 15378) (Title 14, of the
California Code of Regulations) because it has no potential
for resulting in physical change to the environment, directly
or indirectly; it prevents changes in the environment by
requiring the approval of body art permits for body art
practitioners and imposing operational conditions on body art
facilities.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4181,
recommending that the Tustin City Council adopt Draft
Ordinance No. 1407, amending Tustin City Code Section
4140 to regulate the inspection of body art facilities by the
Orange County Health Care Agency; amending Section
3141 to add definitions pertaining to body art; amending
Sections 3651-3654 pertaining to a body art permit; and
amending Section 9232b to permit body art facilities in
certain commercial zones.
Reekstin Presented the staff report for Code Amendment 2011-06.
Staff addressed Planning Commission questions and concems.
Commission questions/concerns generally included zoning for the
use and similar uses, model for Draft Ordinance No. 1407, potential
for conflict/overlap between state law and the city ordinance,
compliance with AMA medical standards, and the definition of
"sharps."
Minutes -Planning Commission September 27, 2011 -Page 4
The Public Hearing opened at 7:55 p.m.
Bree Dewey stepped forward representing the Orange
County Health Care Agency to assist in addressing
Commission questions. Stated "sharps" would be defined in
Draft Ordinance No. 1407 as needles. Addressed issues
regarding proper disposal of sharps. Stated the AMA has no
regulation over body art facilities.
Michael Marsh stepped forward in favor of Code Amendment
2011-06. Mr. Marsh has been a practicing tattoo artist for 13
years, and he addressed Commission questions and provided
suggestions to improve Draft Ordinance No. 1407. Mr.
Marsh's recommendations generally included transportation
of contaminated instruments in a moist towel as opposed to
being submerged in water, mandatory use of an ultrasonic
cleaner, use of disposable cups rather than reusable, and
removing the option to use break-away needles to reduce the
risk of contamination and needle-sticks.
The Public Hearing closed at 8:04 p.m.
The Planning Commission took consideration of Mr. Marsh's
recommendations. Further Commission recommendations generally
included technical clarification/definition for increased consistency in
Draft Ordinance No. 1407.
Motion: It was moved by Puckett, seconded by Kozak, to approve Resolution
No. 4181 as amended, and requested that the amended Resolution
be brought back at the next regular meeting for formal adoption by
Consent Calendar. Motion carried 5-0.
Continued to the 5. DRAFT ORDINANCE NO. 1397 CLARIFYING THE
regular Planning MEANING OF LEGAL NONCONFORMING USES AND
Commission meeting STRUCTURES IN THE CITY OF TUSTIN.
on October 11, 2011
At the request of the City Council, staff prepared draft
Ordinance No. 1397 to provide clarity, provide consistency
and reduce any ambiguity related to any nonconforming
structures, uses and lots in the City. The Tustin City Council
has requested that the Planning Commission consider
verbatim City Council minutes of March 15, 2011 and draft
Ordinance No. 1397, and provide a recommendation on the
proposed ordinance to the Tustin City Council. Resolution
No. 4183 has been prepared for Planning Commission
consideration and action in this regard.
Minutes -Planning Commission September 27, 2011 -Page 5
Approved
2. APPROVAL OF CODE AMENDMENT 2011-06, DRAFT ~~
ORDINANCE NO. 1407 -BODY ART ORDINANCE.
On September 13, 2011, a public hearing was duly noticed and
called by the Planning Commission on Code Amendment 2011-
06. The public hearing was continued to September 27, 2011, at
which time the Commission adopted Resolution No. 4181
recommending that the Tustin City Council approve Code
Amendment 2011-06, subject to confirmation by the Planning
Commission as part of the Consent Calendar on October 11,
2011.
RECOMMENDATION:
That the Planning Commission confirm that the revisions to Draft
Ordinance No. 1407 correctly reflect the direction provided by
the Commission on September 27, 2011.
Motion
Adopted
Resolution No.
4183 as amended
It was moved by Puckett, seconded by Eckman, to move the Consent
Calendar. Motion carried 5-0.
PUBLIC HEARINGS:
3. DRAFT ORDINANCE NO. 1397 CLARIFYING THE MEANING OF
LEGAL NONCONFORMING USES AND STRUCTURES IN THE
CITY OF TUSTIN.
On September 27, 2011, the Planning Commission considered
the proposed Ordinance 1397 and continued the public hearing to
October 11, 2011, to allow staff to address concerns brought up
by the Planning Commission and the general public. The
concerns are as follows:
1) The issue of value (i.e. fair market, appraised, assessed,
replacement, reasonable, etc.) for the purpose of repair,
maintenance, and/or replacement;
2) Impact to existing historic resources;
3) The time period in which the owner would need to provide
Statement of Evidence;
4) Incorporation of suggested evidence listed in the
Investigative Procedures dated August 30, 2011, onto the
proposed Ordinance;
5) Zoning Code versus Building Code;
6) General Plan Consistency.
Minutes -Planning Commission October 11, 2011 -Page 2