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Exh 3Ai .. ., _~ . . ~__ .. 3~ ~ - ~ ~ ~~ ~"1 March 3, 1999 City of Atlantic Beach Commission 800 Seminole Road Atlantic Beach, FL 32233-5445 Dear City Council for Atlantic Beach: I, Ncole L. Gwyn would like to request permission be given to appear on the docket for unfinished business on March 8, 1999. I have obtained information that I feel will help to clarify laws pertaining to my occupational license that were discussed in the meeting on February 22, 1999. Although my occupational license was granted, the council questioned state laws regarding the responsibility of the physician that is required by the State of Florida. I will be supplying the council members and attorney with my legal findings prior to the City Council meeting. It is my feeling that we all want to understand and resolve this matter on March 8, 1999. Sincerely, Nicole L. Gwyn Studio Director Immortal Body in Ink FLORIDA DEFARTMFNf OF I~ALT~ rb Bush Robert G. G Brooks, M.D. Jovernor Secretary February 23, 1999 Nicole Gwyn 10478 Teresa Drive Jacksonville, Florida 32246 Dear Ms. Gwyn: It was a pleasure talking to you again today, tivhen you called to request a copy of Chapter 877.04 (1), Florida Statutes. (F. S.) effective date July 1, 1997; and Chapter 64B8-2.002, Florida Administrative Code, (F.A.C.) entitled "Tattooing: General Supervision", as amended dated January 1, 1993. Please find a copy of both enclosed. As we discussed today, these are the only laws and rules regarding tattooing at this time known by the Department, and are the most current. The 1981 case you mentioned appears to be discussed in the "Annotations: Notes of Decisions " follotiving Chapter 877.04 (1), F.S. It tivould appear that this case is now superseded by this newer law and Chapter 64B8-2.002, F.A. C., a fact your anorney should verify. According to Chapter 64B8-2.002, F.A.C., "The term 'general supervision, ' as applied to tattooing under the provisions of Section 877.04(I),_Florida Statutes, ...shall not require the physical presence of the supervisor tivhen procedures are performed... ". e only other regulation affecting a tattooist is Chapter 64E-16, F.A. C., Biomedical Waste. You have contacted me previously ~garding this rule and 1 have provided you with a copy of it. Under this rule any biomedical waste tivi11 be de, fined, handled, labeled, and disposed according to your policy and procedure, which will be examined for compliance by the Department. As ive have further discussed, new biomedical tivaste generators must obtain an initial biomedical waste permit from the Department, the fee for which is $55.00 annually. You may note also that Chapter 381.0098 (8), F.S., previously given to you, gives the Department sole authority to regulate biomedical tivaste generators {"Preemption of Authority to Regulate "). At the present time body piercing is not regulated by the state of Florida. The Department has tried for several years to enact legislation that would regulate body piercing, failing each time. The bill is once again pending passage in this legislative session. Unril such time as this or some other legislation passes, it is a "buyer beware" situation in regards to body piercing. Any interested parties may verify this by contacting the Department's legal staff in Tallahassee at (850) 487-0004. It was a pleasure providing this service for you, and as ahvays please do not hesitate to contact me if you have any quesrions. Very truly yours, Todd E. Clark, Environmental Specialist III-C Area Biomedical Waste Supervisor Biomedical Waste Program Authority: Chapter 381.0098, F.S.; Chapter 64E-16, F.A.C. (formerly Ch. lOD-104, F.A.C.) serving counties of Baker, Duval, Nassau, and St. Johns 900 University Boulevard North • Suite 300 • Jacksonville, Florida • 32211 telephone (904) 630-3300, extension 4016 CHAPTER 64B8-2. DEFINITIONS 64B8-2.001 Definitions. (1) The phrase'direct supervision and control' as used in Section 458.303(2), F.S., shall require the following: The physical presence of the supervising physician on the premises so that the supervising physician is immediately available when needed. (2) The phrase'has obtained a passing score, as established by rule of the board, on the licensure examination of the Federation of State Medical Boazds of the United States, Inc. (FLEX) or on the examination of the National Boazd of Medical Examiners' as used in Section 7, Ch. 86-245, Laws of Florida, and the phrase 'has obtained a passing score, as established by rule of the board, on the licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or on Part III of the examination of the National Board of Medical Examiners' shall mean a FLEX weighted average of no less than 75 percent from one complete sitting on the FLEX taken in the organization and format used prior to 1985; a score of no less than 75 on both Part I and Part II on the FLEX taken in the new organization and format in 1985 or later, both of which parts shall have been passed within afive-year period; an average score of no less than 75 on the National Board examination; or a score of no less than 75 on Part III of the National Board examination. (3) The phrase'military service of the United States' as used in Section 458.313(3), F.S., shall mean the following: Serving as a commissioned medical officer in the Army, Navy, Marines, Air Force, Coast Guazd, or U.S. Public Health Service. (4) The'azeas of critical needs,"azeas of critical medical need,' and'medically underserved azeas' as used in Sections 458.315(1) and 458.317(1)(d), F.S., respectively, shall include but not be limited to the following: (a) Areas designated by the Department of Health and Human Services as health manpower shortage areas; (b) State mental institutions; (c) State institutions for the mentally retazded; or (d) State prison. (5) The tenm'accreditedrnedical school,' as utilized in Section 458.303(1)(1), F.S., in setting forth the requirement of graduation from an accredited medical school by applicants for medical faculty certificate, shall mean those medical schools and colleges which are recognized and approved by an accrediting agency recognized by the United States Office of Education and those foreign medical schools which are listed by the World Health Organization. (6) The phrase 'direct responsibility,' as defined by the Boazd of Medical l Examiners, and as used in Section 458.3485, Florida Statutes, shall mean that the responsible physician need not be physically present on the premises but must be within close physical proximity and easily accessible. (7) The term'the Educational Commission for Foreign Medical Graduates examination equivalent' as used in subsection (3)(d) of Section 458.311, Florida Statutes, as amended by Section 6, Ch. 86-245, Laws of Flonda, shall mean the Foreign Medical Graduate Examination in the Medical Sciences (FMGEMS). (8) The term'consultation,' as used in Section 458.303(1)(b), Florida Statutes, encompasses the actions of a physician lawfully licensed in another state, territory or foreign country. Such physician is permitted to examine the patient, take a history and physical, review laboratory tests and x-rays, and make recommendations to a physician duly licensed in this state with regard to diagnosis and treatment of the patient. However, the tenn'consultation' does not include such physician's performance of any medical procedure on or the rendering of treatment to the patient. (9) The phrase'approvedpostgeaduate training program,' as used in Section 766.314(4)(b)4., Florida Statutes, shall mean that the program must be an approved residency as set forth in Rule 64B8-4.004, Florida Administrative Code. (10) For purposes of interpreting and applying 458.331(I)(u), F.S., the term 'experimentation' does not include the use of two or more therapies each of which is within the standard of care for each patient's condition even if the determination of which therapy to use on a particular patient is based in part on the intent of the physician to capture research data for purposes of evaluating the efficacy of the competing therapies. However, this definition does not include the use by a licensee of any device or substance, if the substance or device has not been approved by the U.S. Food and Drug Administration. (11) Successful completion of the Special Purpose Examination of the Federation of State Medical Boards of the United States (SPEC is defined as obtaining a score of no less than 75 on that examination. Specific Authority 458.309. 458.31 S(1), 458.317(1)(c}, 458.319(1), 766.314(4) FS. Law Implemented 458.303, 458.315(1). 458.317(1)(c), 458.331(1)(u), 458.3485, 766.314(4) FS History-New 11-10-82, Amended 12-4-85, Former1y21M-29.01, Amended 12--f-86, I1-IS-88.3-13-89, 1-1-92, 9-24-92, 2-21-93, Formerly 2lM-29.001, Amended 4-14-94, Formerly 61F6-29.001, 59R-1.001. ANNOTATIONS Direct supervision and control Respondent doctor was not subject to discipline for aiding, assisting, or directing unlicensed person in practice of medicine or physical therapy, violation of § 458.331(1)(f), F.S., where respondent employed qualified medical assistant to aid in rendering physical therapy, and where such assistant acted at all times under'd'uect supervision and control' of respondent, as that term is defined in Rule 21M-29.001 [now Rule 64B8-2.001], F.A.C. Section 458.303(2), F.S., expressly authorizes use of trained assistants under direct supervision and control of physician in rendering medical services. Department of Professional Regulation v. Paez-Sanchez, 12 FALR 4878 (1990). FLEX score Rule 21M-29.01(2) [now Rule 64B8-2.001], F.A.C., insetting minimum FLEX score of 75% and requiring that score be obtained in one sitting, does not exceed range of possible interpretations of F.S.A. § 458.313(1)(d) and thus dots not constitute addition or alteration to statute in excess of lawfully delegated rulemaking authority. F.S.A. §§ 458.313(1) and 458.311 reflect legislative intent that candidates for liccnsure by endorsement and by examination satisfy same examination requirement Both ?5% score and single sitting requirement have possible correlation to medical competence. Departrnent of Professional Regulation, Board of Medical Examiners v. Durrani, App., (1st) 455 So. 2d 515 (1984), rev'g (DOAH 83-3441R), 6 FALR 1037 (1984). ~~ 64B8-2.002 Tattooing: General Supervision. 877.04. Tattooing prohibited; penalty (1) It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under chapters 458 and 459 or chapter 466, or by a person under his or her general supervision as defined by the Board of Medicine. (2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (3) No body of a minor shall be tattooed without the written notarized consent of the parent or legal guardian. CRO 1 CREDIT(S) 1998 Electronic Update CRO1 Amended by Laws 1997, c. 97-102, § 1426, eff. July 1, 1997. « For additional credits, if any, see Historical Note field. » HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES 1998 Electronic Update Laws 1997, c. 97-102; eff. July 1, 1997, removed gender-specific references applicable to human beings from volume 4 of the Florida Statutes without substantive changes in legal effect. 1994 Main Volume Derivation: Laws 1993, c. 93-260, § 23. Laws 1992, c. 92-149, § 124. Laws 1977, c. 77-174, § 1. Laws 1971, c. 71-136, § 1148. Laws 1969, c. 69-118, § 1. Laws 1959, c. 59-439, §§ 1, 2. Laws 1969, c. 69-118, § 1, rewrote subsec. (1) which formerly prohibited tattooing persons less than eighteen years of age. Laws 1971, c. 71-136, § 1148, made the offense defined by subsec. (2) of this section a "misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083" in lieu of provision that offenders "be subject to a fine of not more than $500 or imprisonment not to exceed six months, or by both such fine and imprisonment." ~~ Laws 1977, c. 77-174, a reviser's bill, amended subsec. (2) of this section to reflect language editorially inserted by the division of statutory revision. Laws 1992, c. 92-149, § 124 eff. Apri18, 1992, at the end of subsec. (1), substituted "general supervision as defined by the Board of Medicine" for "direction" and added subsecs. (3) and (4). Laws 1993, c. 93-260, § 23, repealed former subsec. (4), an obsolete provision for t recommendation for regulations. REFERENCES LIBRARY REFERENCES 1994 Main Volume C.J.S. Physicians, Surgeons, and Other Health-Gaze Providers §§ 2, 3, 5, 14, 15, 28, 33. WESTLAW Topic No. 299. Physicians and Surgeons 6(1), 6(11 1/2). ANNOTATIONS • NOTES OF DECISIONS Construction and application 2 Validity 1 1. Validity This section which provides that tattooing can only be performed by a person licensed to practice medicine or dentistry or by one under his direction, is not unconstitutionally vague. Golden v. McCarty, 337 So.2d 388 (1976). t Classification established by this section, which provides that tattooing can only be performed by a person licensed to practice medicine or dentistry or by one under his direction, beazs reasonable relationship to restriction of art of tattooing for benefit of public health; thus, statute does not deny equal protection. Golden v. McCarty, 337 So.2d 388 (1976). Enactment of this section regulating business of tattooing was a lawful exercise of state's police power in regard to public health. Golden v. McCarty, 337 So.2d 388 (1976). 2. Construction and application This section which prohibits tattooing except by a person licensed to practice medicine or dentistry or a person under his direction must be construed as requiring that a physician or dentist be in actual attendance during tattooing operation. Beckerman v. City of Fort Lauderdale, App. 4 Dist., 423 So.2d 925 (1982), petition for review denied 434 So.2d 886. In this section making it unlawful for any person to tattoo the body of any human being except under the direction of a person licensed to practice medicine or dentistry, the words "under the direction" require the supervising doctor or dentist to have personal contact with the customer who is to receive the tattoo and to determine that the application of the tattoo will not be harmful to the health of the customer and it is also required that the supervising doctor or dentist be personally present during the application of the tattoo to insure that the application is done in a sanitary manner. Piperato v. Zuelch, App. 3 Dist., 395 So.2d 1231 (1981). The term'general supervision,' as applied to tattooing under the provisions of Section 877.04(1), Florida Statutes, shall mean the supervision of the tattooist by a supervising physician, osteopathic physician, or dentist, which supervision shall not require the physical presence of the supervisor when procedures are performed, but shall require the following items: (1) The supervising physician, osteopathic physician, or dentist, initially upon assuming duties as the supervisor and semiannually thereafter, shall review and inspect the techniques, procedures, and equipment utilized by the tattooist in the performance of tattooing. (2) The supervising physician, osteopathic physician, or dentist shall provide semi-annual training for the tattooist in the azeas of infection control, sterilization, and emergency procedures. (3) The supervising physician, osteopathic physician, or dentist and the tattooist shall develop jointly written procedures regazding the medical condition for individuals to receive tattoos, treatment of routine minor problems resulting during or from tattooing, and detailed procedures to be followed in the event of emergency situations developing during the performance of or as a result of tattooing. These written procedures will be maintained in a readily available location on the premises of the tattooist, and a copy shall be maintained by the supervising physician, osteopathic physician, or dentist. Such written procedures will be readily available for inspection and review by agents of any or all of the following: The Department of Health, the Boazd of Medicine, the Boazd of Osteopathic Medical Examiners, and the Board of Dentistry. Specific Authority 458.309, 877.04(1) FS. Law Implemented 877.04(1) FS. Nistory-New 9-Z4-92, Amended 1-20-93, Formerly 21 M-29.002, 61 F6-29.002, S9R-2.002. 64B8-2.003 Use of Acupuncture. The scope of practice of medicine as defined in Section 458.305(3), F.S., includes the use of acupuncture theories, therapies and modalities by any licensee who has received education and training in the medical uses of such theories, therapies and modalities. Specific Authority 458.309(1) FS. Law Implemented 458.305(3) FS. History-New 10-10-95, Formerly 59R-2.003. i~ TATOO PARLORS 96-05 BIOMEi]ICAL WASTE UPDATE May 15,1996 It bears repeating to say that our authorify as far as tattoo parlors are concerned, is. in the area of biomedical waste only. Tattoists are required by section 877.04, Florida Statutes to operate under the supervision of a physician, osteopathic physician or dentist. The responsibility for this statute is in the Board of Medicine under the Agency far Health Care Administration. They have provided us with a copy of their tattoo rule 59R-2.002, which is enclosed for your information and use. We cannot cite tatooists for violation of this law and rule. We can, however notify the Board of Medicine at (904)488-0595. We can also notify local law enforcement since this is a criminal statute. Some counties•require an environmental health "sign-off' before issuing occupational licenses. Here again, you can only address compliance from a biomedical waste position, but you can provide information to the licensing offtce if you know an establishment is not in compliance with ail state and local requirements. • '• .. ..• .• ,' • ,'. r • . . ~ .~ ' ~ .~ . . . . • • f • •i ~ / ;~• ~. ...>.•/~~ i• .f• . .:i .. i. •i 1'•i.7 ~..:.. till! 1: + . '~. 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