                    October 18, 1965

Honorable Bess Blackwell         Opinion No. C-529
Executive Secretary
State Board of Cosmetology       Re: Whether a license is re-
Sam Houston State Office Bldg.       qulred for a fully equipped
Austin, Texas                        beauty shop located In a
                                     rest home owned and oper-
                                     ated by The Order of the
                                     Eastern Star for its re-
                                     tired members, 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, The horder
       of the Eastern Star, hereinafter referred to
       as 'The Order,' owns and operates a rest home
       for retired members. The home is located in
       Arlington, Tarrant County, Texas.   Within the
       home, a beauty ,shopwhich has been furnished
       with donated equipment is provided for the
       residents. A group of volunteers from The
       Order, known as 'Pink Ladles,' 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 pay for
       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 volunteers arose. A working agree-
       ment was made with a licensed beauty operator
       to work In the shop on two days each week and
       to charge a small fee for their services,  fur-
       nishing at her own expense the supplies used
       by her. Although the volunteers do not work
       in the shop at times ,when the licensed oper-
       ator is working, they do, at other times, of-
       fer their services free of charge.




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Honorable Bees Blackwell, page 2 (C-529)


           "In order to comply with the regulations
       governing a licensed operator, The Order ob-
       tained a permit from the State Board of Cos-
       metolo y, pursuant to Article 73&b, Sections
       6 and % Vernon's Penal Code, and registered
       its nami and location with the State Board of
       Hairdressers and Cosmetologists, as required
       by Article 729, Vernon's Penal Code."
        your request presents six (6) questions. All of these
questions deal with regulation of licensed hairdressing and
cosmetology operators and/or licensed beauty shops, both of
which are covered by Article 734b, Vernon's Penal Code. The
sections of this Article dealing with licensed hairdressing
and cosmetology operators, in connection with your questions,
are Sections 2(b), 2(c) and 12. Section 2(b), V.P.C., pro-
vides:
           "(b) The practice of hairdressing and
       cosmetology, as used herein, shall mean the
       use, by any person for a fee or other pecu-
       niary compensation, of cosmetologlcal prepa-
       rations, antiseptics, tonics, lotions or
       creams, engaging In or performing any one
       (1) or a combination of the following matters,
       either with 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 or manicuring the nails of
       any person, or In arranging, dressing, curl-
       ing, waving, cleansing, cutting, singeing,
       bleaching, coloring or similar work upon the
       hair of any person by any means." (Emphasis added.)
       Section 2(c), V.P.C., provides:
           "(c) Any person using coemetologlcal
       preparations, antiseptics, tonics, lotions
       or creams engaging in or performing any one
       (1) or a combination of the following prac-
       tices, either with the hands'or with mechan-
       ical 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 or manicuring the nails of
       any person or in arranging, dressing, curling,
       waving, cleansing, cutting, singeing, bleach-
       ing, coloring or similar work upon the hair
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Honorable Be88 Blackwell, page 3 (C-529)


       of any person by any means shall be deemed
       to be practicing cosmetology and hairdress-
       ing." (Emphasis added.)

        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, bleach-
       ing, 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 the practice of hair-
dressing and cosmetology shall be the performance of the acts
therein named, and the use of preparations therein named, for a
fee or pecuniary compensation.
        Section 12 provides that this act shall not 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 li-
censed beauty shops.
        Section 2(h), V.P.C., provides:
            "(h) A hairdressing or cosmetological
        shop is that part of any building where or
        in which hairdressing or cosmetology, as de-
        fined 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." (Emphasis added.)
        Section 6, V.P.C., provides:
            II
             . . .no person, firm, association or
        corporation holding a license to conduct a
        beauty parlor or beauty shop under this Act
        shall permit any of the operations of halr-
        dressing and cosmetology or manicuring to be
        performed in such shop by any person or per-
        sons unless such person or persons is, or are,
        the holder, or holders, of a license from the
        Board authorizing him or her to perform such
        operation."
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Honorable Bess Blackwell, page 4 (C-529)


        Section g(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
       establishment with a permanent andTe=
       location completed
       by solid walls, with no openini from
       used wholly or in part for residential or
       !fTG+ing purposes. . . .I'7.                 )
        Section 12, V.P.C., provides:
            II
             . . .Provided, further, that nothing in
        this Act shall prohibit a person licensed
        under this Act from performing duties as pre-
        scribed by this Act in the home of a customer
        in cases of emergency, when sent by a shop
        owner. . . ." (!3nphaslsadded.)
        Section 2(b) provides that a beauty shop is that part
of any building where hairdressing and cosmetology is practiced.
        Section 6 provides that none of the operations of hair-
dressing and cosmetology may be performed In a licensed beauty
shop by persons who are not holders of a license from the Board
of Hairdressers and Cosmetologists authorizing them to perform
such operation. As previously noted, 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 shop must have a
permanent and definite location completely and be permanently
separated by solid walls and with no openings from rooms used
wholly or In part for residential or sleeping purposes.
        Finally, Section 12 provides that a licensed operator
can perform operations of hairdressing and cosmetology In the
home of a customer in cases of emergency when sent by a shop
owner.
        Your facts state that the rest home has obtained a li-
cense to operate a beauty shop in order to comply with certain
sections of our Penal Code. Before answering your questions,
we inform you that it is not necessary for a "beauty shop" in
a private rest home which is not open to the public to be ll-
tensed where work in the "shop" is performed only upon residents

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Honorable Bees BlackWell, Page !$'(c-529)


of the home by volunteers who 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 shop would
be authorized to serve the general public. If this is not the
intent and purpose of the home, the shop license may be can-
celled upon request of the home.
                     QUESTION NO. 1
            Is a license required for a fully e-
            quipped shop located in the rest home
            if the work performed is by licensed
            operators only and the shop is oper-
            ated only on a specified day or spe-
            cified days of the week?
        The answer to this question Is no. Section 12 provides
that licensed,operators may perform their services in the home
of a customer in case of emergency when sent by a shop owner.
The rest home, for this purpose, is a private home. There is
no mention made in the Act of the equipment to be utilized and
the operators would certainly be expected to utilize all facil-
ities available to better perform their duties and to maintain
highest sanitation conditions. Therefore, the licensed oper-
ator, when sent by a shop owner to the home of a customer in a
case of emergency may utilize a fully equipped shop located in
the home. Of course, if there is not an emergency, then the li-
censed operators cannot perform their hairdressing and cosmetol-
oglcal services in the home , since no provision is found in the
statute which allows this. Whether or not an emergency exists
is a question of fact and a question upon which this office can-
not pass.
                     QUESTION NO. 2
           Must a partially equipped shop (a,
           modified bathroom) in the rest home
           be licensed where service is given
           by both licensed operators and by
           volunteers who do not charge fees?
        The answer to this question is no for the eame reasons
as given in the answer to Question No. 1. In this question there
is the additional problem that both licensed operators, who charge
a fee, and volunteers, who do not charge a fee, use the same fa-
cilities. 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 volunteer workers do not charge fees a+

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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 Question No. 1 if it is not a licensed
shop.
                     QUESTION NO. 3
           Is it permissible for the retirement
           home owner to make an appointment
           through a currently licensed beauty
           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 operator may perform her duties in
the home of a customer when sent by a shop owner in cases of
emergency.
                     QUESTION NO. 4
            Is it permissible for licensed oper-
            ators to work in the licensed shop on
            certain days and on the other days for
            the shop to be used by the charity vol-
            unteers?
        The answer to this question is no. Section 6 strictly
prohibits any one other than licensed operators from performing
any of the operations of hairdressing and cosmetology in a li-
censed 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 previously pointed out, there
is no necessity for a fully equipped shop in a private home to
be licensed and 3.f~
                   the shop is not licensed, it may be used by
both volunteers and by licensed operators in an emergency as
previously noted in this opinion.
                     QUESTION NO. 5
            Must the shop in the rest home be li-
            censed if the shop 18 used by volunteers
            who do not charge a fee for their ser-
            vices and by licensed operators by
            appointment only?


                              -2522-
 .



Honorable Bees Blackwell, page 7 (C-529)


        The 'answer~to this 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 appointment with the licensed operator is
made, In cases of emergency, in accordance with Section 12 as
hereinabove noted 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 operator may not, however, perform her aervlcea out-
side a licensed shop except in accordance with Section 12.
                     QUESTION NO. 6
            Is It legal for a non-licensed vol-
            unteer who does not charge a fee for
            her services to work in a licensed shop
            located in a retirement home?
        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 charged makes
no difference, for the shop is licensed and the shop ia what
is regulated in this case. The volunteers would be perform-
ing the operations of hairdressing and cosmetology as 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'fully or partially equipped,
located in a private home such as this when the shop is used
by volunteers and by licensed operators only in cases of
emergency.
                         SUMMARY
           A beauty shop in a rest home need not be
        licensed; however, If the beauty shop ie ll-
        tensed, then the shop may serve the general
        public and non-licensed volunteers cannot
        perform any of the operations of halrdress-
        ing and cosmetology In the beauty shop re-
        gardlesa of whether or not a fes is charged.
        If the shop is not licensed, the unlicensed
        volunteers may utilize the facllitles of the
        shop in the performance of the services of
        hairdressing and cosmetology upon residents
        of the home if no fee Is charged andi~licensed



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


         operators may utilize the facilities of the
      : ~shop in cases of emergency when sent by a
         shop owner.
                            Yours very trdy,
                            WAGGONER CARR
                            Attorney General of Texas




                               Assistant Attorney General
REO:sss:br
APPROVED
OtiINIONCOMMITTEE
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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