SB335: Bill Text

SB335,31,4 5. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the financial review and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the commission shall be subject to an annual financial review by a certified or licensed public accountant, and the report of the financial review shall be included in and become part of the annual report of the commission.

SB335,31,16 (h) Qualified immunity, defense, and indemnification. 1. The members, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, both personally and in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that nothing in this subdivision shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person. The procurement of insurance of any type by the commission shall not in any way compromise or limit the immunity granted hereunder.

SB335,32,3 2. The commission shall defend any member, officer, executive director, employee, and representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or as determined by the commission that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining their own counsel at their own expense; and provided further, that the actual or alleged act, error, or omission did not result from that person’s intentional or willful or wanton misconduct.

SB335,32,12 3. The commission shall indemnify and hold harmless any member, officer, executive director, employee, and representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of that person.

SB335,32,15 4. Nothing herein shall be construed as a limitation on the liability of any licensee for professional malpractice or misconduct, which shall be governed solely by any other applicable state laws.

SB335,32,19 5. Nothing in this compact shall be interpreted to waive or otherwise abrogate a member state’s state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act, Clayton Act, or any other state or federal antitrust or anticompetitive law or regulation.

SB335,32,21 6. Nothing in this compact shall be construed to be a waiver of sovereign immunity by the member states or by the commission.

SB335,33,2 (10) Article 10 - data system. (a) The commission shall provide for the development, maintenance, operation, and utilization of a coordinated database and reporting system.

SB335,33,4 (b) The commission shall assign each applicant for a multistate license a unique identifier, as determined by the rules of the commission.

SB335,33,8 (c) Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact is applicable as required by the rules of the commission, including:

SB335,33,9 1. Identifying information;

SB335,33,10 2. Licensure data;

SB335,33,11 3. Adverse actions against a license and information related thereto;

SB335,33,14 4. Nonconfidential information related to alternative program participation, the beginning and ending dates of such participation, and other information related to such participation;

SB335,33,17 5. Any denial of application for licensure, and the reason(s) for such denial (excluding the reporting of any criminal history record information where prohibited by law);

SB335,33,18 6. The existence of investigative information;

SB335,33,19 7. The existence of current significant investigative information; and

SB335,33,21 8. Other information that may facilitate the administration of this compact or the protection of the public, as determined by the rules of the commission.

SB335,34,3 (d) The records and information provided to a member state pursuant to this compact or through the data system, when certified by the commission or an agent thereof, shall constitute the authenticated business records of the commission, and shall be entitled to any associated hearsay exception in any relevant judicial, quasijudicial or administrative proceedings in a member state.

SB335,34,6 (e) The existence of current significant investigative information and the existence of investigative information pertaining to a licensee in any member state will only be available to other member states.

SB335,34,10 (f) It is the responsibility of the member states to monitor the database to determine whether adverse action has been taken against such a licensee or license applicant. Adverse action information pertaining to a licensee or license applicant in any member state will be available to any other member state.

SB335,34,13 (g) Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

SB335,34,16 (h) Any information submitted to the data system that is subsequently expunged pursuant to federal law or the laws of the member state contributing the information shall be removed from the data system.

SB335,34,23 (11) Article 11 - rule making. (a) The commission shall promulgate reasonable rules in order to effectively and efficiently implement and administer the purposes and provisions of the compact. A rule shall be invalid and have no force or effect only if a court of competent jurisdiction holds that the rule is invalid because the commission exercised its rule-making authority in a manner that is beyond the scope and purposes of the compact, or the powers granted hereunder, or based upon another applicable standard of review.

SB335,35,6 (b) The rules of the commission shall have the force of law in each member state, provided however that where the rules of the commission conflict with the laws of the member state that establish the member state’s scope of practice laws governing the practice of cosmetology as held by a court of competent jurisdiction, the rules of the commission shall be ineffective in that state to the extent of the conflict.

SB335,35,9 (c) The commission shall exercise its rule-making powers pursuant to the criteria set forth in this subsection and the rules adopted thereunder. Rules shall become binding as of the date specified by the commission for each rule.

SB335,35,14 (d) If a majority of the legislatures of the member states rejects a rule or portion of a rule, by enactment of a statute or resolution in the same manner used to adopt the compact within 4 years of the date of adoption of the rule, then such rule shall have no further force and effect in any member state or to any state applying to participate in the compact.

SB335,35,15 (e) Rules shall be adopted at a regular or special meeting of the commission.

SB335,35,18 (f) Prior to adoption of a proposed rule, the commission shall hold a public hearing and allow persons to provide oral and written comments, data, facts, opinions, and arguments.

SB335,35,22 (g) Prior to adoption of a proposed rule by the commission, and at least 30 days in advance of the meeting at which the commission will hold a public hearing on the proposed rule, the commission shall provide a notice of proposed rule making:

SB335,35,23 1. On the website of the commission or other publicly accessible platform;

SB335,36,2 2. To persons who have requested notice of the commission’s notices of proposed rule making; and

SB335,36,3 3. In such other way(s) as the commission may by rule specify.

SB335,36,4 (h) The notice of proposed rule making shall include:

SB335,36,8 1. The time, date, and location of the public hearing at which the commission will hear public comments on the proposed rule and, if different, the time, date, and location of the meeting where the commission will consider and vote on the proposed rule;

SB335,36,11 2. If the hearing is held via telecommunication, video conference, or other electronic means, the commission shall include the mechanism for access to the hearing in the notice of proposed rule making;

SB335,36,12 3. The text of the proposed rule and the reason therefor;

SB335,36,14 4. A request for comments on the proposed rule from any interested person; and

SB335,36,15 5. The manner in which interested persons may submit written comments.

SB335,36,18 (i) All hearings will be recorded. A copy of the recording and all written comments and documents received by the commission in response to the proposed rule shall be available to the public.

SB335,36,21 (j) Nothing in this subsection shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this subsection.

SB335,36,23 (k) The commission shall, by majority vote of all members, take final action on the proposed rule based on the rule-making record and the full text of the rule.

SB335,37,2 1. The commission may adopt changes to the proposed rule provided the changes do not enlarge the original purpose of the proposed rule.

SB335,37,5 2. The commission shall provide an explanation of the reasons for substantive changes made to the proposed rule as well as reasons for substantive changes not made that were recommended by commenters.

SB335,37,9 3. The commission shall determine a reasonable effective date for the rule. Except for an emergency as provided in par. (L), the effective date of the rule shall be no sooner than 45 days after the commission issuing the notice that it adopted or amended the rule.

SB335,37,16 (L) Upon determination that an emergency exists, the commission may consider and adopt an emergency rule with 5 days’ notice, with opportunity to comment, provided that the usual rule-making procedures provided in the compact and in this subsection shall be retroactively applied to the rule as soon as reasonably possible, in no event later than 90 days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately to:

SB335,37,17 1. Meet an imminent threat to public health, safety, or welfare;

SB335,37,18 2. Prevent a loss of commission or member state funds;

SB335,37,20 3. Meet a deadline for the promulgation of a rule that is established by federal law or rule; or

SB335,37,21 4. Protect public health and safety.

SB335,38,8 (m) The commission or an authorized committee of the commission may direct revisions to a previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of 30 days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

SB335,38,10 (n) No member state’s rule-making requirements shall apply under this compact.

SB335,38,14 (12) Article 12 - oversight, dispute resolution, and enforcement. (a) Oversight. 1. The executive and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to implement the compact.

SB335,38,21 2. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings. Nothing herein shall affect or limit the selection or propriety of venue in any action against a licensee for professional malpractice, misconduct or any such similar matter.

SB335,39,3 3. The commission shall be entitled to receive service of process in any proceeding regarding the enforcement or interpretation of the compact and shall have standing to intervene in such a proceeding for all purposes. Failure to provide the commission service of process shall render a judgment or order void as to the commission, this compact, or promulgated rules.

SB335,39,10 (b) Default, technical assistance, and termination. 1. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall provide written notice to the defaulting state. The notice of default shall describe the default, the proposed means of curing the default, and any other action that the commission may take, and shall offer training and specific technical assistance regarding the default.

SB335,39,12 2. The commission shall provide a copy of the notice of default to the other member states.

SB335,39,18 3. If a state in default fails to cure the default, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the delegates of the member states, and all rights, privileges and benefits conferred on that state by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

SB335,39,23 4. Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor, the majority and minority leaders of the defaulting state’s legislature, the defaulting state’s state licensing authority and each of the member states’ state licensing authority.

SB335,40,3 5. A state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

SB335,40,8 6. Upon the termination of a state’s membership from this compact, that state shall immediately provide notice to all licensees who hold a multistate license within that state of such termination. The terminated state shall continue to recognize all licenses granted pursuant to this compact for a minimum of 180 days after the date of said notice of termination.

SB335,40,11 7. The commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed upon in writing between the commission and the defaulting state.

SB335,40,15 8. The defaulting state may appeal the action of the commission by petitioning the United States District Court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorney’s fees.

SB335,40,18 (c) Dispute resolution. 1. Upon request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.

SB335,40,20 2. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

SB335,40,22 (d) Enforcement. 1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact and the commission’s rules.

SB335,41,9 2. By majority vote as provided by commission rule, the commission may initiate legal action against a member state in default in the United States District Court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney’s fees. The remedies herein shall not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or the defaulting member state’s law.

SB335,41,16 3. A member state may initiate legal action against the commission in the United States District Court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney’s fees.

SB335,41,18 4. No individual or entity other than a member state may enforce this compact against the commission.

SB335,41,21 (13) Article 13 - effective date, withdrawal, and amendment. (a) The compact shall come into effect on the date on which the compact statute is enacted into law in the 7th member state.

SB335,42,2 1. On or after the effective date of the compact, the commission shall convene and review the enactment of each of the charter member states to determine if the statute enacted by each such charter member state is materially different than the model compact statute.

SB335,42,5 a. A charter member state whose enactment is found to be materially different from the model compact statute shall be entitled to the default process set forth in sub. (12).

SB335,42,9 b. If any member state is later found to be in default, or is terminated or withdraws from the compact, the commission shall remain in existence and the compact shall remain in effect even if the number of member states should be less than 7.

SB335,42,13 2. Member states enacting the compact subsequent to the charter member states shall be subject to the process set forth in sub. (9) (c) 24. to determine if their enactments are materially different from the model compact statute and whether they qualify for participation in the compact.

SB335,42,17 3. All actions taken for the benefit of the commission or in furtherance of the purposes of the administration of the compact prior to the effective date of the compact or the commission coming into existence shall be considered to be actions of the commission unless specifically repudiated by the commission.

SB335,42,21 4. Any state that joins the compact shall be subject to the commission’s rules and bylaws as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

SB335,42,23 (b) Any member state may withdraw from this compact by enacting a statute repealing that state’s enactment of the compact.

SB335,43,2 1. A member state’s withdrawal shall not take effect until 180 days after enactment of the repealing statute.

SB335,43,5 2. Withdrawal shall not affect the continuing requirement of the withdrawing state’s state licensing authority to comply with the investigative and adverse action reporting requirements of this compact prior to the effective date of withdrawal.

SB335,43,10 3. Upon the enactment of a statute withdrawing from this compact, a state shall immediately provide notice of such withdrawal to all licensees within that state. Notwithstanding any subsequent statutory enactment to the contrary, such withdrawing state shall continue to recognize all licenses granted pursuant to this compact for a minimum of 180 days after the date of such notice of withdrawal.

SB335,43,14 (c) Nothing contained in this compact shall be construed to invalidate or prevent any licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.

SB335,43,17 (d) This compact may be amended by the member states. No amendment to this compact shall become effective and binding upon any member state until it is enacted into the laws of all member states.

SB335,43,23 (14) Article 14 - construction and severability. (a) This compact and the commission’s rule-making authority shall be liberally construed so as to effectuate the purposes, and the implementation and administration of the compact. Provisions of the compact expressly authorizing or requiring the promulgation of rules shall not be construed to limit the commission’s rule-making authority solely for those purposes.

SB335,44,8 (b) The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is held by a court of competent jurisdiction to be contrary to the constitution of any member state, a state seeking participation in the compact, or of the United States, or the applicability thereof to any government, agency, person or circumstance is held to be unconstitutional by a court of competent jurisdiction, the validity of the remainder of this compact and the applicability thereof to any other government, agency, person or circumstance shall not be affected thereby.

SB335,44,16 (c) Notwithstanding par. (b), the commission may deny a state’s participation in the compact or, in accordance with the requirements of sub. (12), terminate a member state’s participation in the compact, if it determines that a constitutional requirement of a member state is a material departure from the compact. Otherwise, if this compact shall be held to be contrary to the constitution of any member state, the compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.

SB335,44,19 (15) Article 15 - consistent effect and conflict with other state laws. (a) Nothing herein shall prevent or inhibit the enforcement of any other law of a member state that is not inconsistent with the compact.

SB335,44,21 (b) Any laws, statutes, regulations, or other legal requirements in a member state in conflict with the compact are superseded to the extent of the conflict.

SB335,44,23 (c) All permissible agreements between the commission and the member states are binding in accordance with their terms.

SB335,45,2 454.51 Implementation of the cosmetology licensure compact. (1) In this section, “authorization to practice” has the meaning given in s. 454.01 (4).