CHAPTER 178

FORMERLY

SENATE BILL NO. 218

AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTERS 4, 6 and 51, TITLE 24 OF THE DELAWARE CODE RELATING TO COSMETOLOGY AND BARBERING.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 24 of the Delaware Code by striking Chapters 4 and 6 in their entirety and also striking Chapter 51 in its entirety and substituting in lieu thereof the following:

"CHAPTER 51. COSMETOLOGY AND BARBERING AND CERTIFICATION OF AESTHETICIANS.

Subchapter 1. Board of Cosmetology and Barbering

§5100. Objectives.

The primary object of the Board of Cosmetology and Barbering, to which all other objectives and purposes are secondary, is to protect the general public (specifically those persons who are direct recipients of services regulated by this chapter) from unsafe practices, and from occupational practices which tend to reduce competition or artificially fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency, and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competency; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaints hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners, both licensed and unlicensed.

§5101. Definitions.

As used in this Chapter:

(1) 'Apprentice' means any person who is engaged in the learning of any or all the practices of cosmetology, barbering, nail technology, or electrology from a practitioner licensed in the profession the apprentice is studying. The apprentice may perform or assist the licensed practitioner in any of the functions which the practitioner is licensed to perform.

(1) 'Barber' means any person licensed under this Chapter who, for a monetary consideration, shaves or trims beards, cuts or dresses hair, gives facial or scalp massaging, treats beards or scalps with preparations made for this purpose or dyes hair.

(1) 'Cosmetologist' means any person licensed under this Chapter, who is not an apprentice or student practicing cosmetology, who shall have the qualifications provided for by this Chapter.

(1) 'Cosmetology' includes any or all work done for monetary compensation by any person, which work is generally and usually performed by cosmetologists. Such work shall include, but not be limited to, the embellishment, cleansing and beautification of the human hair, such as arranging, dressing, cursing, waving, cutting, bleaching or coloring, the removal of superfluous hair and nail technology. The term 'cosmetology' shall also include, but not be limited to, the massaging, stimulating or beautifying, or similar work, of the-scalp, face, arms, hands or the upper body. All work performed under the definition of 'cosmetology' may be done by hand or by mechanical or electrical devices and may Include the use of cosmetic preparations, tonics, lotions or creams.

(1) 'Nail Technician' means any person licensed under this Chapter who engages only in the practice of manicuring, pedicuring or sculpting nails, including acrylic nails, of any person.

(6) 'Instructor' shall mean any person licensed under this Chapter who is a cosmetologist, barber, electrologist or nail technician, who teaches cosmetology, barbering, electrology or nail technology in a duly registered school of cosmetology, barbering, electrology or nail technology.

(7) 'Beauty salon' means any place or part thereof wherein cosmetology, barbering, electrology, or nail technology, or any of its practices, are practiced, whether such place is known or designated as a cosmetological establishment, beauty salon or barber shop, nail salon or electrology establishment, or where the person practicing cosmetology, barbering, nail technology, or electrology therein holds himself or herself out as a cosmetician, cosmetologist, beauty culturist, barber, nail technician, or electrologist, or by any other name or designation indicating that cosmetology or barbering is practiced therein.

(8) 'School of cosmetology', 'School of electrology', 'School of Nail Technology', 'School of Barbering' shall mean any place or part thereof where cosmetology, barbering, electrology, nail technology or any of the practices are taught, whether such place or establishment is known or designated as a cosmetological establishment, barbering school, beauty culture school, school of electrology, or by any other name or designation, indicating that cosmetology, barbering, electrology or nail technology is taught therein to students.

(9) 'Classroom hour' is defined as 50 minutes of each 60 minute hour.

(1) 'Board' means and refers to the Delaware State Board of Cosmetology and Barbering, as provided for in this Chapter.

(2) 'Electrologist' shall mean any person licensed under this Chapter who, for a monetary consideration, engages in the removal of superfluous hair by use of specially designed electric needles.

§5102. Authority to regulate.

The Board of Cosmetology and Barbering shall regulate persons performing any of the functions outlined in the duties of a cosmetologist, barber, electrologist, nail technician, or instructor.

§5103. License reaulrement: applicability of chapter.

No person shall practice cosmetology, barbering, electrology, nail technology, or act as an instructor in this State, who has not been licensed in accordance with this Chapter. Under such rules and regulations as the Board may adopt, this Chapter shall not be construed to prohibit practice by:

1. Persons who are licensed to practice cosmetology, barbering, electrology or nail technology in any other state, district or foreign country who, as practicing cosmetologists, barbers, electrologists, or nail technicians enter this State to consult with a cosmetologist, barber, electrologist or nail technician of this State. Such consultation shall be limited to less than thirty days in any calendar year.

1. Any student of an accredited school of cosmetology, barbering, electrology or nail technology, who is receiving practical training under the personal supervision of a licensed instructor in cosmetology, barbering, electrology or nail technology.

2. Any cosmetologist, barber, electrologist or nail technician, commissioned by any of the armed forces of the United States, or by the Public Health Service.

3. Individuals licensed under this Chapter from performing those services for which they are licensed in a health care institution, funeral home, or in the residence of a home-bound person.

1. Persons employed to render cosmetology or hairstyling services in the course of, and incidental to, the business of employers engaged in the theatrical, radio, television, or motion picture production industries, modeling or photography.

§5104. Appointment: composition: qualifications; term of office: suspension or removal, compensation; continuation of former Board.

(a) The Board of Cosmetology and Barbering shall consist of 9 members appointed by the Governor, 6 members, who shall be licensed in accordance with this Chapter, and 3 public members. To serve on the Board, a public member shall not be, nor ever have been, a cosmetologist, barber, electrologist, nail technician, or aesthetician; nor a member of the immediate family of a cosmetologist, barber, electrologist, nail technician or aesthetician; shall not have been employed by a cosmetologist, barber, electrologist, nail technician, or aesthetician; shall not have had a material or financial interest in the providing of goods and services to a cosmetologist, barber, electrologist, nail technician, or aesthetician; nor have been engaged in an activity directly related to cosmetology, barbering, electrology, nail technology, or aesthetics. Such public member shall be accessible to inquiries, comments and suggestions from the general public.

(b) Each member shall serve for a term of 3 years, and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member.

(a) A person who has never served on the Board may be appointed to serve on the Board for two consecutive terms, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9 year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served.

(a) Every person who is a member of the Board of Cosmetology and Barbering on the effective date of this Chapter shall continue to serve until the expiration of his or her term. Any vacancy occurring in the membership of the former Board shall be filled in accordance with the provisions of this Chapter.

(a) Any act or vote by a person appointed in violation of subsection (c) of this section shall be invalid. An amendment or revision of this Chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (c) of this section, unless such amendment or revision amends this section to permit such an appointment.

(a) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded.

(a) No member of the Board of Cosmetology and Barbering, while serving on the Board, shall be a president, chairperson or other official of a professional cosmetology, barbering, nail technology or electrology association.

(a) The provisions set forth for 'employees' in Chapter 58 of Title 29, Del. C., shall apply to all members of the Board, and to all agents appointed or otherwise employed by the Board.

(a) Board members shall receive not more than $50 for each meeting attended, nor more than $500 maximum per member In any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§5105. Officers: meetings: quorum.

(a) In the same month of each year the members shall elect, from among their number, a President, a Vice President and a Secretary for one year. Each officer shall serve for 1 year, and may succeed himself or herself in the same office for one additional term. In the event that the President shall leave the Board, the Vice President shall become President and an election shall be held within 90 days.

(b) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year, and at such other times as the President deems necessary or at the request of a majority of Board members.

(c) A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of a majority of the quorum. Any member who fails to attend 3 consecutive regular business meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed by the Governor.

(d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, such hearing shall be recorded by a court reporter and any stenographic transcript requested shall be at the expense of the party making the request.

§5106. Powers and duties.

(a) The Board of Cosmetology and Barbering shall have the power to:

(1) Formulate rules and regulations, with appropriate notice given. Each rule or regulation shall implement or clarify a specific section of this Chapter;

(1) Designate and process the application form to be used by all applicants; however, no application form shall require a picture of the applicant, require information relating to citizenship, race, place of birth or length of state residency; nor shall it require personal references;

(1) Designate a written examination, prepared by either a national professional association or by a recognized legitimate national testing service;

(1) Provide for the administration of all examinations, subject to the approval of the Division of Professional Regulation, including notice and information to applicants;

(1) Design and administer practical examinations, subject to the approval of the Division of Professional Regulation, for cosmetology, nail technology, barbering and electrolysis, only;

(1) Grant licenses to all persons who meet the qualifications for licensure under this Chapter and who, in addition, have paid the appropriate fees as determined by the Division of Professional Regulation and approved by the General Assembly;

(1) Grant temporary work permits to all persons who qualify. Rules and regulations for the issuance of work permits shall be established by the Board;

(B) Receive complaints from practitioners and from the public concerning practitioners, in accordance with the investigative policy of the Division of Professional Regulation In §8810, Title 29, Delaware Code; and take such action within Its powers as the Board deems appropriate;

(9) Determine whether or not a practitioner shall be the subject of a disciplinary hearing, and if so, to conduct such hearing in accordance with this Chapter and the Administrative Procedures Act;

(10) Where it has been determined after a disciplinary hearing that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty, after time for appeal has lapsed;

(11) Bring proceedings in the courts for the enforcement of this Chapter;

(12) Take such action outlined in §5116 of this Title with regard to unlicensed practitioners.

(13) Establish by rule and regulation the curriculum to be completed by an instructor for any of the professions regulated by this Chapter.

§107. Qualifications of applicant: judicial review: report to Attorney General.

All persons applying for a license to practice under this Chapter shall have:

(1) Successfully completed an education equivalent to a tenth grade education. Instructors shall have successfully completed an education equivalent to completion of the twelfth grade. Proof of the required education shall be a certified high school transcript or any other document or affidavit which constitutes reliable proof of educational attainment. This requirement shall not apply to those students enrolled in a school of instruction for any of the practices for which a license is required under this Chapter or for any registered apprentices at the time this law is enacted;

(2) Passed a written and practical examination to the satisfaction of the Board;

(3) Paid the appropriate fee as established by the Division of Professional Regulation. In addition, except as otherwise provided for in this Chapter, no individual shall be permitted to sit for an examination or shall be granted a license to practice in any of the professions regulated by this Chapter, unless he/she meets the following education requirements, or has successfully completed an apprenticeship. The requirements are for:

(a) Cosmetologists and Barbers - The successful completion of a minimum of 1,500 classroom hours of continuous training for a complete course in either barbering or cosmetology. School owners shall have the option of the amount of hours of training per day not to exceed 10 hours and shall be able to choose which days of the week the student works provided the hours accumulated do not exceed 40 hours per week; however, upon a written agreement signed by the school owners and the student, the student may work more than 10 hours per day or 40 hours per week; or,

(b) Apprentice cosmetologists or barbers - The completion of 3,000 hours in an apprenticeship, to either a licensed cosmetologist or barber, with the total number of hours worked per day not to exceed ten hours, nor to exceed 40 hours per week, unless a written agreement to exceed these limits is signed by the licensed cosmetologist or barber and the apprentice; or,

(c) Nail Technicians - The successful completion of a course of training in nail technology of not less than 125 hours in a School of nail technology or cosmetology; or successful completion of 250 hours as an apprentice under the supervision of a licensed nail technician. In either case, training Is not to exceed 10 hours per day or 40 hours per week. However, upon a written agreement signed by the school owner and the student, the student may work more than 10 hours per day or 40 hours per week; or,

(e) Electrologists - The successful completion of a course of training in electrology of not less than 300 hours in a school of electrology or cosmetology, or successful completion of 600 hours as an apprentice under the supervision of a licensed electrologist. In either case, training is not to exceed 10 hours per day or 40 hours per week. However, upon a written agreement signed by the school owner and the student, the student may work more than 10 hours per day or 40 hours per week; or, Students - Any school of cosmetology, barbering, electrology or nail technology which enrolls a student shall file with the Board the name of such student. The Division of Professional Regulation shall keep a register of all enrolled students. Each student shall be at least 16 years of age at the time or enrollment.

(f) Instructors - The successful completion of a course in cosmetology or barbering, consisting of at least 500 hours of instruction in a registered school of cosmetology or barbering; or, at least 2 years' experience as an active licensed, practicing cosmetologist or barber, supplemented by at least 250 hours of instruction in cosmetology or barbering. Proof of education or experience shall be provided to the satisfaction of the Board.

(4) When a person who feels the Board has refused or rejected his or her application without justification; has imposed higher or different conditions for him or her than for other applicants, or persons now licensed; or, has in some other manner contributed to or caused the failure of such person's application, the applicant may appeal to Superior Court.

Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

§5108. Examinations

(a) Written and practical examinations for licensure in any of the categories of licensure contained in this Chapter shall be professionally developed and used on a national basis. If the required written or practical examination cannot be procured from a professional testing service, the Board may develop the written or practical examination subject to the approval of the Division of Professional Regulation.

(a) No board member or designee of the Board may administer a practical examination to any student from an educational institution or commercial establishment where the Board member or designee of the Board is employed or has a fiduciary interest therein.

(b) Examination services shall be contracted and approved by the Division of Professional Regulation. Grading will be performed by the contracted testing service where professionally developed examinations are used. All scoring for practical examinations shall be approved by the Division of Professional Regulation.

§5109. Reciprocity

Where the applicant is already licensed in another state, the Board shall accept the certificate issued by the other state in lieu of all other requirements for licensure provided for in this Chapter, provided that the requirements of that state are equal to or greater than those of Delaware. However, an individual with a license from a State with less stringent requirements than Delaware may obtain a license through reciprocity if he or she can prove, to the satisfaction of the Board, that he or she has worked In the field for which he or she is seeking a license in Delaware for a period of one year before application in Delaware.

Upon receipt of an application for reciprocity, the Board shall contact each Board, which has previously licensed the applicant, to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved. An application for licensure by reciprocity shall be accompanied by full payment of the reciprocity fee.

§5110. Fees.

The amount to be charged for each fee imposed under this Chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board.

There shall be a separate fee charged for each service or activity; but no fee shall be charged for an activity not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute for each separate service or activity, the appropriate fee for the coming year.

§5111. Issuance of license; renewal; inactive status; reinstatement

(a) Each person who has passed the examinations required by this Chapter, who has been admitted to practice in this State by reciprocity, or

who has otherwise qualified for a license shall, prior to receiving such license, file for and obtain an occupational license from the Division of Revenue, if required, in accordance with Chapter 23 of Title 30, Delaware Code. The Board shall issue a license to each person who has qualified for same under this Chapter. A duplicate license shall be issued to a practitioner licensed under this Chapter upon payment of a fee established by the Division of Professional Regulation. The license shall be clearly marked "DUPLICATE."

(b) Licensees shall be required to renew their licenses on the date set pursuant to subsection (10) of §8803 of Title 29, Delaware Code. Failure to renew the license shall provide grounds for suspension. A license which has been allowed to lapse for less than two years shall be renewed by the Board on payment of a late fee not to exceed two times the regular renewal fee. If a license is allowed to lapse for longer than two years, the applicant must complete one of the following:

(1) a six-month apprenticeship with an individual licensed under this Chapter and in the profession for which the applicant is applying; or,

(2) retake the practical examination for the profession for which a license is being applied; or,

(3) for cosmetology, barbering, electrology, or nail technology, complete a course of instruction at a registered school of cosmetology, barbering, electrology or nail technology, of not less than 500 classroom hours.

(c) Any licensee may, upon his or her written request, be placed in an inactive status. The renewal fee of such person shall be prorated in accordance with the amount of time such person was inactive. Such person may reenter practice upon notification to the Board of his or her intent to do so.

(d) A former licensee, who has been penalized for a violation of a provision of this Chapter, or whose license has been suspended or revoked, and who subsequently is permitted to apply for reinstatement, shall apply for a new license, successfully complete all examinations, and pay all appropriate fees before he or she may be licensed.

§5112. Complaints

(a) The Division of Professional Regulation shall investigate any written complaints concerning practitioners practicing as, or advertising themselves to be, cosmetologists, barbers, electrologists or nail technicians. When it is determined that an individual is practicing cosmetology, barbering, electrology or nail technology without a license, the Board shall apply to the Office of the Attorney General to issue a cease and desist order after formally warning the unlicensed practitioner in accordance with the provisions of this Chapter.

Any complaints involving allegations of unprofessional conduct or incompetence shall be investigated by the Division of Professional Regulation. Complaints involving unsanitary or other conditions, which may harm the health of those receiving the services outlined in this Chapter, shall be investigated by the Division of Public Health.

§5113. Grounds for discipline; procedure.

(a) Practitioners regulated under this Chapter shall be subject to those disciplinary actions set forth in §5114 of this Chapter if, after a hearing, the Board finds that the practitioner has:

(1) employed or knowingly cooperated in fraud or material deception in order to be licensed, or be otherwise authorized to practice cosmetology, barbering, electrology, or nail technology;

(2) been incompetent or negligent in the practice of cosmetology, barbering, electrology or nail technology;

(3) excessively used or abused drugs (including alcohol, narcotics or chemicals);

(4) been convicted of a felony within the past five years;

(5) as a cosmetologist, barber, electrologist, or nail technician, or otherwise in the practice of his or her profession, knowingly engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities;

(6) violated a lawful provision of this Chapter, or any lawful regulation established thereunder.

(b) Where a practitioner fails to comply with the Board's request that he or she attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order.

(c) Subject to Subchapter IV of Chapter 101 of Title 29, Delaware Code, no license shall be restricted, suspended or revoked by the Board, and no practitioner's rights to practice shall be limited by the Board, until such practitioner has been given notice, and an opportunity to be heard in accordance with the Administrative Procedures Act.

§5114. Disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in §5113 of this Title applies to a practitioner regulated by this Chapter:

(1) Issue a letter of reprimand;

(2) Censure a practitioner;

(3) Place a practitioner on probationary status, and require the practitioner to:

a. Report regularly to the Board upon the matters which are the basis of the probation;

b. Limit all practice and professional activities to those areas prescribed by the Board;

(4) Suspend any practitioner's license;

(5) Revoke a practitioner's license.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.

(c) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, or during the appeals process, but only in cases where there is a clear and immediate danger to the health and safety of a client or to the public if the licensee is allowed to continue to practice. Such suspension may be appealed to Superior Court.

(d) As a condition of reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§5115. Hearing procedures.

(a) If a complaint investigated by the Division of Professional Regulation is alleged to be a violation of §5113 of this Title, the Board shall determine what action to take. If the Board decides not to take any further action, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the Board shall fix the time and place for a full hearing of the matter, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least 30 days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service shall be effected in the same manner as with civil litigation.

(a) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. A copy of the decision shall be mailed immediately to the practitioner. The Board's decision shall become effective on the 30th day after the date it is mailed or served on the practitioner, unless there is an appeal by the practitioner to the Superior Court within that time.

(a) Where the practitioner is in disagreement with the action of the Board, he or she may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to him or her. Upon such appeal the Court shall hear the evidence on the record, and the filing of an appeal shall act as a stay of the Board's decision pending final determination of the practitioner's appeal.

§5116. Practicing without a license: Penalties.

(a) Where the Board has determined that a person is practicing cosmetology, barbering, electrology, nail technology or instructing in any of the professions for which a license is required under this Chapter, without first having obtained a license to practice, or that a person previously licensed under this Chapter is unlawfully practicing, although his or her license has been suspended or revoked, the Board shall formally warn such person. If the offense continues, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board.

(b) Where the Board has placed a practitioner on probationary status under certain restrictions or conditions, and the Board has determined that such restrictions or conditions are being or have been violated by the practitioner, it may, after a hearing on the matter, suspend or revoke the practitioner's license.

(c) Where a person not currently licensed as a cosmetologist, barber, electrologist, nail technician or instructor, in any of the professions for which a license is required, is convicted of unlawfully practicing cosmetology, barbering, electrology or nail technology in violation of this Chapter, such offender shall, upon the first offense, be fined $50, and shall pay all costs; provided, however, that where it is alleged that such violation has resulted in injury to any person, the offender shall be charged and tried under the applicable provision(s) of Title 11 of the Delaware Code.

(d) Where a person previously convicted of unlawfully practicing cosmetology, barbering, electrology, nail technology, or instructing in any of the professions for which a license ts required under this Chapter, is convicted a second or subsequent time of such offense, the fine assessed against such person shall be increased by $250 for each subsequent offense thereafter.

§5117. Registration of salons and schools.

(a) Any person, firm, corporation or association shall apply to the Board for a certificate of registration as a registered beauty salon, barbershop, nail salon, electrology establishment, school of cosmetology, barbering, nail technology, or electrology, within the meaning of this Chapter; said application to be upon a form prescribed by the Board, together with the required fees set biennially by the Division of Professional Regulation and approved by the General Assembly. Renewals, with fees set by the Division of Profession Regulation, shall be required biennially. Any beauty salon, barbershop, nail salon, electrology establishment, school of cosmetology, barbering, nail technology, or school of electrology shall fully comply with all the rules and regulations promulgated by the Board as provided for in this Chapter. The Board of Cosmetology and Barbering, by regulation, shall establish the minimum equipment necessary for schools registered to instruct any of the occupations regulated by this Chapter. Nothing contained in this Chapter shall prevent a person from operating a registered beauty salon, barber shop, or nail salon or electrology establishment in his or her home, provided there is full compliance with all applicable health regulations.

(b) No beauty salon, barber shop, nail salon, or electrology establishment shall accept an apprentice unless said salon or shop shall have on its staff at least 1 individual licensed in the profession for which instruction is being provided; further, that such salon or shop may register 1 additional apprentice for each additional licensed professional attached to its staff. In addition, such salon or shop shall possess the necessary apparatus and equipment for the proper instruction in all subjects for the practices for which a license is required under this Chapter; and shall maintain a daily record of the attendance of such apprentice or apprentices, together with the number of hours of apprenticeship; and shall certify to the Board upon termination of such apprenticeship the credits earned. Such instruction shall consist of the necessary training for a complete course comprising all, or the majority, of the practices of cosmetology, barbering, nail technology, and electrology as provided in this Chapter; and such course shall include theoretical studies and practical demonstrations in sanitation, sterilization and other safety measures, and the use of antiseptics, cosmetics and electrical appliances, consistent with the practical and theoretical requirements as applicable to cosmetology, barbering, nail technology and electrology as provided for in this Chapter.

(a) Any person, firm or corporation teaching any or all of the practices of cosmetology, including barbering, nail technology and electrology, shall be required to comply with all provisions applicable to establishments having apprentices; and any and all rules which may be promulgated by the Board established in accordance with this Chapter. No school of cosmetology, barbering, nail technology or electrology or beauty salon, barbershop, nail salon or electrology establishment, shall operate within this State unless a proper certificate of registration under this Chapter has first been obtained. The practice of cosmetology and other professions regulated by this Chapter shall not be taught or practiced in this State, except in a duly registered establishment except as provided for elsewhere in this Chapter.

(a) Nothing contained in this Chapter shall affect the instructional program of cosmetology as conducted in the public schools of this State. Any student, who has successfully completed the prescribed course in cosmetology in a State public school, shall be eligible to take the examinations required by this Chapter.

§5118. Requirements of a school.

(a) Each school of barbering, cosmetology, electrology or nail technology shall employ at least 1 instructor for the first 25 students enrolled, and 1 additional instructor for each additional 25 students enrolled. Each school shall possess apparatus and equipment sufficient for the proper and full teaching of all subjects of its curriculum; shall keep a daily record of the attendance of each student; maintain regular class and instruction hours; establish grades and hold examinations before issuance of diplomas. Each school shall require training for a complete course comprising all, or the majority, of the practices regulated under this Chapter, as provided in this Chapter, together with the minimum number of hours therein prescribed, and shall include practical demonstrations and theoretical studies, and study in sanitation, sterilization, other safety measures, and the use of antiseptics, cosmetics and electrical appliances,

consistent with the practical and theoretical requirements as applicable to any practice for which a license is required under this Chapter, as provided in this Chapter.

(b) An instructor shall decide when a student, of any of the practices for which a license or certification is required under this Chapter, is sufficiently competent to perform those services for the public.

(c) Each school for a profession regulated by this Chapter shall display, in a conspicuous place within the clinic area of the school, a sign which shall read as follows:

'ALL SERVICES IN THIS SCHOOL PERFORMED BY STUDENTS WHO ARE IN TRAINING

(a) Each school licensed under this Chapter shall afford to its students the full course of instruction required under this Chapter, in default of which a proportionate amount of the tuition paid by the student shall be refunded.

Subchapter II. Aesthetician Certification

§5119. Objectives.

The primary purpose for the certification of aestheticians is to guarantee to the public that each certified practitioner has achieved a minimum level of competence as an aesthetician.

§5120. Definitions.

(a) For the purpose of this Subchapter, a 'certified aesthetician' is a person who is certified under this Subchapter to practice the cleansing, stimulating, manipulating and beautifying of skin, with hands or mechanical or electrical apparatus or appliances, and to give treatments to keep skin healthy and attractive. An aesthetician is not authorized to prescribe medication or provide medical treatments in the same manner as a dermatologist.

(b) 'Board' means the Board of Cosmetology and Barbering.

(c) 'School' means an institution privately owned and conducted for the purpose of teaching aesthetics.

(a) 'Apprentice in Aesthetics' means any person who is engaged in the learning of any or all the practices of aesthetics from a practitioner certified in the profession the apprentice is studying. The apprentice may perform or assist the certified practitioner in any of the functions which the practitioner is certified to perform.

§5121. prohibitions.

(a) No person may use the title 'certified aesthetician' unless he or she is certified under this Chapter.

(b) A person may not seek a certification or renewal of certification by means of false or fraudulent actions or misrepresentations.

§5122. Exemptions.

Nothing in this Subchapter shalt prohibit:

1) A licensed cosmetologist from performing services as an aesthetician;

(2) A licensed dermatologist from performing services as a dermatologist.

§5123. Records.

The Board shall maintain a register of all applicants for certification. This register shall be available for public Inspection.

The certification to practice as a certified aesthetician in this State

shall be renewed by the certified aesthetician every two years, and shall be renewed upon payment of the renewal fee. The Board shall provide forms for application for certification and for the renewal of certification. The Board shall notify each registrant of the expiration date of his or her certificate, and the amount of the fee that shall be required at least one month prior to the expiration thereof. It shall be the responsibility of the certified aesthetician to notify the Board of any change of address and to renew his or her certification before its expiration. A late fee shall be established by the Division of Professional Regulation and approved by the General Assembly to take effect one month after the expiration date of the certificate. A late fee must be paid before the certificate is renewed.

§5124. Qualifications.

No person shall be certified under this Subchapter unless he or she has:

(1) Completed a course of study of not less than 300 hours in the principles pertaining to the practice of aesthetics; or

(2) Completed 600 hours in an apprenticeship to a certified aesthetician, with the total number of hours worked per day not to exceed ten, nor to exceed 40 per week, unless a written agreement to exceed these limits is signed by the certified aesthetician and the apprentice.

(3) Passed the national examination required in §5125 of this Chapter.

(4) Paid the appropriate fee as established by the Division of Professional Regulation.

§5125. Examinations.

(a) Examinations for certification as aesthetician shall be professionally developed and used on a national basis.

(a) Examination services shall be contracted and approved by the Division of Professional Regulation.

(a) The Division of Professional Regulation or its designee shall administer the examination for certification. Grading will be performed by the contracted testing service.

§5126. Complaints.

(a) The Division of Professional Regulation shall investigate any written complaints concerning uncertified practitioners practicing as, or advertising themselves to be, aestheticians. When it is determined that an individual is using the title 'certified aesthetician' without having obtained certification under this Chapter, the Division shall apply to the appropriate court to issue a cease and desist order. If the violation continues, the Division shall make a formal complaint to the Attorney General.

(a) Where a person, not currently certified as a certified aesthetician, is convicted of unlawfully using the title 'certified aesthetician' in violation of this Subchapter, such offender shall, upon the first offense, be fined $50.00 and pay all costs.

(b) Where a person previously convicted of unlawfully practicing aesthetics is convicted of a second or subsequent time of such offense, the fine assessed against such person shall be increased by $250 for each subsequent offense thereafter.

§5127. Display of certificate.

Each individual certified under this Subchapter shall prominently display his or her certificate issued by the Board in a conspicuous part of his or her office wherein the practice of aesthetics is conducted. In addition, each main or branch office shall have prominently displayed a name and telephone number where individuals may call concerning the services of the certified aesthetician.

§5128. Fees. The amount to be charged for each fee imposed under this Subchapter shall approximate and reasonably reflect all costs necessary to defray the proportional expenses incurred by the Division of Professional Regulation in its services pursuant to this Subchapter. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this Subchapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year the Division of- Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate fees for the-coming year. The fees are subject to approval by the General Assembly.

(a) In those instances where a national examination is to be taken in Delaware, applicants shall pay all fees charged by the testing service directly to the testing service. Where the testing service refuses to accept direct payment, the applicant may pay the Division of Professional Regulation. In the event there are extra local expenses incurred by the State for its services in administering the examination, the applicant shall pay an additional fee to the Division to defray those local expenses.

§5129. Operation of aesthetic schools

(a) Any school, which holds a current license to conduct a school for the purpose of teaching cosmetology and/or its branches, may apply for approval by the Board to teach a course pertaining to the principles of aesthetics.

(b) All other schools shall be separately certified and pay the prescribed fee. No school will be granted a certificate unless it has the following:

(1) A clinic room of no less than 600 square feet, to be used exclusively for the teaching of aesthetics, and containing all necessary equipment for clinical training.

(2) A lecture room of no less than 400 square feet, with armchairs or desks and chairs for a minimum of 25 students. The lecture room must be available for at least one period per day for exclusive use for instruction in aesthetics.

§5130. Equipment.

Every school shall have, and shall maintain in good working condition, appropriate and sufficient equipment for its entire student body. Minimum equipment for an aesthetic school shall be established by regulation by the Board of Cosmetology and Barbering.

§5131. Instructors

Every school shall at all times be in the charge, and under the immediate supervision, of an instructor. Instructors shall be competent to teach the principles of aesthetics by having completed an advanced course in aesthetics consisting of a minimum of 600 hours.

§5132. Course of study.

Each school of aesthetics shall maintain a course of study of not less than 300 hours, extending over a period of a maximum of 160 hours a month. Every school shall maintain regular class hours with a daily schedule."

Section 2. The Board of Cosmetology and Barbering shall consist of the members presently serving unexpired terms on the present Board.

Approved February 4, 1994.