October 13, 2005

Governor passes on pedicure safety bill

Could shift burden of responsibility back to Sacramento; state law says otherwise

By Kymberli W. Brady
Staff Writer

“With outbreaks in states across the country and rumors of an epidemic blowing around, many wonder why it took so long to address pedicure safety.”

Brittany Welby met with AB 1263 sponsor, Mike Luong, owner of AmeriSpa in Assembly Speaker Pro Tem Leland Yee’s office prior to her testimony in favor of AB 1263, the Pedicure Safety Bill

Who knew that this caption, which appeared in the Almaden Times Weekly on Sept. 22, would come back to haunt us Friday night, after Governor Schwarzen-egger vetoed Assembly Bill 1263, the Pedicure Safety Bill.

The bill would have imposed stricter regulations on a profession that has since exploded. Once thought a frivolous luxury, the pedicure has become a mainstay, with 290,000 licensed manicurists and cosmetologists operating out of salons on what seems like every street corner across the state to meet the increasing demand. With it has come fierce competition leading to rock-bottom pricing and for some, life-altering consequences.

Yet despite overwhelming bipartisan support in both houses of the State Legislature (74-3 in the Assembly, 24-12 in the Senate), Gov. Schwarzenegger vetoed the bill. Ironically, the statement released by his office explaining his action mirrors the analysis of AB 1263, issued by the Department of Finance that followed the Department of Consumer Affairs’ letter of opposition. Finance Department staff reportedly admitted that the Department of Consumer Affairs had told them that it could “create significant costs if the Board had to defend itself against legal actions brought on by consumers.”

Mike Luong, president of AmeriSpa and sponsor of the bill authored by Assembly Speaker ProTem Dr. Leland Yee, is frustrated after having spent nearly five years and over $1.5 million to protect what he considers a “threatened industry” should outbreaks similar to those several years ago in Watsonville and in San Jose in late 2004 and early 2005 continue to surface.

Proponents say the bill was created to establish safeguards that would prevent future mycobacterium infections that left hundreds of women—and men—in California with permanent scaring that could have been prevented through the proper use and cleaning of pedicure equipment and chemicals.

To date, more than 120 cases implicating 38 salons are pending in San Jose courtrooms, while additional outbreaks in Contra Costa County are still under investigation after Department of Public Health Services [DHS], investigators discovered salons using Windex, dish soap, and 409 to clean and disinfect foot spas and implements.

“I believe it was a mistake to veto the bill,” says Dr. Della Condon, president of the Board of Barbering and Cosmetology. “It would have given the consumers an opportunity to know what kind of establishment they were in and put more emphasis on how the spas are manufactured in the first place. Some of them are inherently dangerous just because of the way they are made. This would have given us the ability to identify those that we felt were safe.”

Condon openly supported AB 1263 and recently attended a press conference with Yee in San Francisco to discuss its importance, especially since nearly $11 million of their own resources has been rerouted to other government agencies—money that could have been used to better police the nail industry and remain self-supportive at the same time.

“Most salons are doing the right thing and those particular salons supported this legislation, as well as the Board of Barbering and Cosmetology,” said Speaker pro Tem Yee. “The only businesses that would be detrimentally effected are those that should not exist anyhow, businesses that are not properly cleaning their equipment or using the proper disinfectants.”

Procedural questions raised
Just one week before the Senate Appropriations Committee was to close deliberations on AB 1263, the Department of Consumer Affairs issued the only letter opposing the bill, stating that “it contains provisions that could significantly harm innocent businesses, shifting responsibility for ensuring the safety of equipment from manufacturers to the Board of Barbering and Cosmetology, which may have the unintended consequence of placing the Board in the position of assuming liability, in lieu of the manufacturer, for pedicure equipment.

Despite overwhelming bipartisan support in both houses of the State Legislature (74-3 in the Assembly, 24-12 in the Senate), Schwarzenegger vetoed the bill. Echoing the same sentiments expressed by the the Department of Consumer Affairs and the subsequent analysis of AB 1263, issued by the Department of Finance.

“The board has gone on record as being very concerned about customer safety here,” Condon adds. “I think it’s very peculiar that the Department of Consumer Affairs suggested that the governor veto the bill without telling the board that they were going to do so. If the political parties that be don’t want the work of supporting the consumer, then the board will have to be more adamant about it and stand up as the advocate for the consumer.

They did not tell the board why they opposed the bill and I think that would have been very proactive. When it was still moving forward in the legislature, if they had information they thought we should know, then that information should have been shared with us.”

Assembly Speaker Pro tem Leland Yee testified with entertainer and “American Idol” judge Paula Abdul and Almaden’s Brittany Welby at a hearing in front of the California State Legislature last June.

Luong added, “There are no details or specifics on what those concerns are, making it difficult, if not impossible to accommodate the department’s concerns, especially when legislation already exists to prohibit that from happening. It’s a lot of money and five years I’ve invested in trying to come up with something to improve this industry,” Luong says. “We worked our butts off on this. Instead he wants to form a group to study this? We’ve already done that—we gave demonstrations for the Department of Consumer Affairs and the Board—twice!”

The result, Schwarzenegger stated, would create the unintended consequence of placing the Board in the position of assuming liability, in lieu of the manufacturer, for pedicure equipment standards and protocol.

The decision has left many, especially the victims who now harbor permanent scars, perplexed over the same concern that Luong says prompted some 11th-hour wordsmithing on the Senate floor last month in order to fine tune liability concerns to everyone’s satisfaction. Later that day, AB1263 passed a full vote of the Senate and joined hundreds of other bills that would later meet the same fate.

“To say that it shifts the liability back is completely untrue,” argued Luong. “Besides, they have already been told time and time again that the consumer cannot sue the state or the Board. That’s the law. Still, we changed the text of the bill. I don't understand it."

According to Bill Maile, with the Governor's press office, the state gets sued all the time and the legislative concerns raised during the review process ultimately was the reason for the governor's actions.

"The message speaks for itself," he says.

The irony is the fear that the provisions could be interpreted to mean that the Board, in lieu of the manufacturer, could ultimately be held liable for faulty or misused equipment, leading to significant legal tolls should the board have to defend itself against consumer lawsuits. However, the Government Code (sections 815 through 818.9) prevents manufacturers or consumers from bringing actions against the state—requirements that apply to all state agencies including the Board of Barbering and Cosmetology.

“And I don’t understand what “innocent” businesses he’s talking about. Does he mean the people who will get fined for not using the proper disinfectant? How can this be fair to the consumers? He should know better—he gets a manicure and pedicure every week.”

Given the cost of doing business, Luong says it can be tempting to do a little less here or use a little less there in order to stretch the profit dollar just a bit more. In the meantime, he continues to research and develop more affordable and equally powerful cleansing agents and equipment that eliminates the need for any guesswork, while offering free training on procedures, time management, and the proper use or their own equipment.

“For example,” he says. “You don’t have to wait for 10 minutes in between customers. Instead, start the cleaning process and then finish up with the massage and polish.”

We need to focus more on protecting the consumer, instead of protecting the businesses. I don’t mind spending money to teach these people at no charge how to properly use their equipment. I just want them to do it right.”
Many feel that if passed, AB 1263 would have generated a more universal set of guidelines that would lead to a more stable environment for both the operators and the patrons.

Although disappointed, Condon stresses the importance of having a board that looks after the consumers when it comes to the political process. In the meantime, she says the board will move forward by discussing the issue and determining what they can address through regulation and whether to introduce another bill.

“It’s only a matter of time before another outbreak occurs,” she says. “There are not enough inspectors to cover every manicure and pedicure salon in the state. It’s absolutely impossible given the numbers that we have right now. I just hope that before that happens, the board can address some of these issues through regulations.”

“What are we going to do when the next outbreak hits?” adds Luong. “There’s no question in my mind that it will happen. Then what will we do, shut down the pedicure business? What will happen to those who want pedicures and worse still, all those who won’t have a job any longer?”