October 18, 1965

HonorableBess Blackwell Executive Secretary Opinion No. C-529 State Board of Cosmetology Re: Whether a license is reSam Houston State Office Bldg. qulred for a fully equipped Austin, Texas beauty shop located In a rest home owned and operated by The Order of the Eastern Star for its retiredmembers, If the work is performed by licensed operators only, and related Dear Mrs. Blackwell: questions.

In your opinion request to this office,you state the following facts:

"A non-profit Texas Corporation,Thehorder of the Eastern Star,hereinafter referred to as 'TheOrder,' owns and operates a rest home for retiredmembers. The home is located in Arlington, Tarrant County, Texas. Within the home, a beauty ,shop which has been furnished with donated equipment is provided for the residents. A group of volunteers from The Order, known as 'PinkLadles,'were using the beauty shop to shampoo and set hair for the retired ladies resident in the hom~e. Many of these residents are without funds to payfor such services. However, since there are now more than one hundred (100)members resident in the home, the need for an operator other than the volunteersarose. A working agreement was made with a licensedbeauty operator to work In the shop on two days each week and to chargea small fee for their services, furnishing at her own expense the suppliesused by her. Although the volunteersdo not work in the shop at times,whenthe licensed operator is working, they do, at other times, offer their services free of charge.

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"In order to complywith the regulations governing a licensed operator,The Order obtained a permit from the StateBoard of Cosmetolo y, 6 and % pursuant to Article 73&b, Sections

Vernon's Penal Code, and registered its nami and locationwith the State Board of Hairdressersand Cosmetologists,as required by Article 729, Vernon's Penal Code."
your requestpresents six (6) questions. All of these questionsdeal with regulationof licensedhairdressingand cosmetologyoperators and/or licensedbeauty shops, both of which are coveredby Article 734b, Vernon's Penal Code. The sections of this Article dealingwith licensedhairdressing and cosmetologyoperators, in connectionwith your questions, are Sections 2(b), 2(c) and 12. Section 2(b),V.P.C.,provides: "(b) The practice of hairdressingand

cosmetology,as used herein, shallmean the use, by any person for a fee or other pecuniary compensation,of cosmetologlcalpreparations,antiseptics, tonics, lotions or creams, engaging In or performingany one (1) or a combination of the followingmatters, eitherwith the hands or with mechanical or electrical apparati or appliances, to wit: cleansing,beautifying or performing any work on the scalp, face, neck, arms, bust or upper part of the body ormanicuring the nails of any person, or In arranging,dressing, curling,waving, cleansing, cutting, singeing, bleaching, coloring or similarwork upon the hair of any person by any means." (Emphasisadded.) Section 2(c),V.P.C.,provides: "(c) Anyperson using coemetologlcal preparations, antiseptics, tonics, lotions or creams engaging in or performing any one (1) or a combinationof the followingpractices, eitherwith the hands'orwith mechanical or electrical apparati or appliance& for a fee or other pecuniary compensation,nam-, cleansing, beautifying,or performing any work on the scalp, face, neck, arms, bust or upper part of the body ormanicuring the nails of any person or in arranging,dressing, curling, waving, cleansing, cutting, singeing,bleaching, coloring or similarwork upon the hair -2518-Honorable Be88 Blackwell,page 3 (C-529)

of any person by any means shall be deemed to be practicing cosmetologyand hairdressing." (Emphasisadded.) Section 12, V.P.C., provides:

.Provlded,further, that nothing in this-Act shall, in any manner apply to, limit or prohibit the arranging,dressing, curling,waving, cleansing, singeing,bleaching, coloring of, or any work upon the hair of a person when performed in a private home xficntiel%tn~ ti 5-m.

. , J' Sections 2(b) and 2(c)provide that thepractice of hairdressing and cosmetology shall be the performance of the acts thereinnamed, and the use of preparations thereinnamed, for a fee or pecuniary compensation.

Section 12 provides that this act shallnot apply to work upon the hair of a person when performed In a private home without charge of fee.

Sections 2(h), 6, g(a) and 12, V.P.C., deal with licensed beauty shops.

Section 2(h), V.P.C.,provides: "(h) A hairdressing or cosmetological shop is thatpart of any buildingwhere or in which hairdressing or cosmetology,as defined I thi A t is performed or practiced. Poorthenpurp&ei Af this Act, a hairdressing or coametological shop shall be synonymous with beauty parlor, beauty shop, beauty salon or studio of beauty." (Emphasisadded.) Section 6, V.P.C., provides: II

. . .no person, firm, association or corporationholding a license to conduct a beautyparlor or beauty shop under this Act shallpermit any of the operationsof halrdressing and cosmetologyor manicuring to be performed in such shop by any person or persons unless such person or persons is, or are, the holder, or holders, of a license from the Board authorizinghim or her to perform such operation." -2519-Honorable Bess Blackwell,page 4 (C-529)

Sectiong(a), V.P.C.,provides:

.It shall be unlawful for a person, fim,‘ aA3ociatlon or corporation to operate a beauty shop, or a beauty school, as defined in this Act,unless the same is a bona fide establishmentwith a permanent andTe= location completed by solidwalls, with no openini from used wholly or in part for residentialor !fTG+ing purposes. . . .I' 7. ) Section 12, V.P.C.,provides: II

. . .Provided,further, that nothing in this Act shallprohibit a person licensed under this Act from performingduties as prescribedby this Act in the home of a customer in cases of emergency,when sentby a shop owner. . . ." (!3nphasls added.) Section 2(b)provides that a beauty shop is that part of any buildingwhere hairdressing and cosmetology is practiced.

Section 6 provides that none of the operations of hairdressing and cosmetologymay be performed In a licensedbeauty shop by persons who are not holders of a license from the Board of Hairdressersand Cosmetologistsauthorizing them to perform such operation. As previouslynoted, Sections 2(b) and 2(c) set forth the practices or acts which are the operations of hairdresslng and cosmetology.

Section g(a) provides that a beauty shopmust have a permanent and definite location completelyand be permanently separatedby solidwalls and with no openings from rooms used wholly or In part for residentialor sleepingpurposes.

Finally, Section 12 provides that a licensed operator can perform operations of hairdressingand cosmetology In the home of a customer in cases of emergencywhen sent by a shop owner. Your facts state that the rest home has obtained a license to operate a beauty shop in order to complywith certain sections of our Penal Code. Before answeringyour questions, we informyou that it is not necessary for a "beauty shop" in a private rest home which is not open to the public to be lltensedwhere work in the "shop" is performed only upon residents

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of the home by volunteerswho do not charge a fee for their services and by licensed operators in case of an emergency. If a shop license is held,by the home, however, the shopwould be authorized to serve the generalpublic. If this is not the intent and purpose of the home, the shop licensemay be cancelled upon request of the home. QUESTIONNO. 1
Is a license required for a fully equipped shop located in the rest home if the work performed is by licensed operators only and the shop is operated only on a specifiedday or specified days of the week? The answer to this question Is no. Section 12 provides that licensed,

operatorsmay perform their services in the home of a customer in case of emergencywhen sent by a shop owner. The rest home, for thispurpose, is a private home. There is no mentionmade in the Act of the equipment to be utilized and the operatorswould certainly be expected to utilize all facilities available to betterperform their duties and to maintain highest sanitationconditions. Therefore, the licensed operator, when sent by a shop owner to the home of a customer in a case of emergencymay utilize a fully equipped shop located in the home. Of course, if there is not an emergency, then the licensed operators cannotperform their hairdressingand cosmetologlcal services in the home, sinceno provision is found in the statutewhich allows this. Whether or not an emergency exists is a question of fact and a questionupon which this office cannot pass. QUESTIONNO. 2

Must a partially equipped shop (a, modified bathroom) in the rest home be licensedwhere service is given by both licensed operators and by volunteerswho do not charge fees? The answer to this question is no for the eame reasons as given in the answer to QuestionNo. 1. In this question there is the additionalproblem that both licensed operators,who charge a fee, and volunteers,who do not charge a fee, use the same facilities. Section 12 provides that a person may perform duties named in Article 734b,V.P.C., in a private home without char e of fee. Since the volunteerworkers do not charge fees a+ -2521-Honorable Bees Blackwell,page 6 (C-529)

perform their services In a private home, this is specifically permitted.

by s'aldSection 12. This would also be true of the fully equipped shop in QuestionNo. 1 if it is not a licensed shop. QUESTIONNO. 3

Is it permissible for the retirement home owner tomake an appointment through a currently licensedbeauty shop, for an operator to call at the home to give beauty servlces, taking with her the necessary Implements from the shop? The answer to this question Is yes. Section 12 is clear and unambiguous. A licensed operatormay perform her duties in the home of a customerwhen sent by a shop owner in cases of emergency. QUESTIONNO. 4

Is it permissible for licensed operators to work in the licensed shop on certaindays and on the other days for the shop to be used by the charityvolunteers? The answer to this question is no. Section 6 strictly prohibits any one other than licensed operators fromperforming any of the operations of hairdressing and cosmetology in a licensed shop. The operations of hairdressing and cosmetology are set forth in Sections 2(b) and 2(c), and these operations are the ones which only licensed operators can perform in a licensed beauty shop. However, as previouslypointed out, there is no necessity for a fully equipped shop in a private home to be licensedand 3.f~ the shop is not licensed, it may be used by both volunteers and by licensed operators in an emergencyas previously noted in this opinion. QUESTIONNO. 5
Must the shop in the rest home be licensed if the shop 18 used by volunteers who do not chargea fee for their services and by licensed operatorsby appointment only?

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Honorable Bees Blackwell,page 7 (C-529)

The 'answer~tothis question18 no. If the shop Is in a private home and Is not a licensed shop and no fee is being charged by the volunteers, then Article 734b, V.P.C., does not apply. When the appointmentwith the licensed operator is made, In cases of emergency, in accordancewith Section 12 as hereinabovenoted and the licensed operator is sent by a ahop owner, the licensed operator is free to use the facilltles available In the home in the performance of her duties. A licensed operatormay not, however,perform her aervlcea outside a licensed shop except in accordance with Section 12. QUESTIONNO. 6
Is It legal for a non-licensedvolunteer who does not charge a fee for her services to work in a licensed shop located in a retirementhome? The answer to this question is no. Section 6 clearly and unequivocably states that no operations of hairdressing and cosmetology shall be performed in a licensed shop except by licensed operators. The fact that no fee la chargedmakes no difference, for the shop is licensed and the shop ia what is regulated in this case. The volunteerswould be performing the operations of hairdressing and cosmetologyas set forth In Sectlons 2(b) and 2(c) even though no fee~was being charged. Again,however, it is pointed out that no license is required for a shop, elther'fullyor partially equipped, located in a private home such as this when the shop is used by volunteersand by licensed operators only in cases of emergency. SUMMARY

A beauty shop in a resthome need not be licensed;however, If the beauty shop ie lltensed, then the shopmay serve the general public and non-licensedvolunteers cannot perform any of the operations of halrdressing and cosmetology In the beauty shop regardlesa of whether or not a fes is charged. If the shop is not licensed, the unlicensed volunteersmay utilize the facllitles of the **shop** in the performance of the services of hairdressing and cosmetologyupon residents of the home if no fee Is charged andi~licensed

-2523-Honorable Be68 Blackwell,page 8 (C-529)

operatorsmay utilize the facilities of the :~shopin cases of emergencywhen sent by a shop owner. Yours very trdy, WAGGONER CARR Attorney General of Texas

AssistantAttorneyGeneral REO:sss:br
APPROVED OtiINION

COMMITTEE
W.;V. Geppert, Chairman Paul~Phy Robert W. Norris W. 0. Shultz Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL By: **T.** B. Wright

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