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Proposed D.C. Tattoo Regulation Could Violate Federal Law

The D.C. Department of Health wants to regulate tattoo artists and body piercers, but one provision of its proposed rules could violate federal law.
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The D.C. Department of Health wants to regulate tattoo artists and body piercers, but one provision of its proposed rules could violate federal law.

A set of proposed regulations that would apply to tattoo artists and body piercers in D.C. could violate federal law.

Tucked in the 66 pages worth of regulations proposed by the D.C. Department of Health in late August is a rule that would require tattoo artists and body piercers to deny service to customers that “may have a communicable disease, skin diseases or other conditions posing public health concerns” and refer them to a doctor.

That rule, though, would likely violate a provision of the Americans With Disabilities Act that forbids most businesses from refusing service to people with communicable diseases such as HIV/AIDS.

“That type of categorical barrier… could only be justified if there was a threat of transmission,” says Rose Saxe, a senior staff lawyer with the ACLU’s HIV/AIDS Project. If a business can take precautions to prevent transmission, she adds, service cannot be denied.

The Department of Justice notes that if standard precautions are taken, a denial of service would be a violation of ADA. (Dentists, it cites as an example, cannot deny service on a health status alone.) Tattoo artists in D.C., which are currently unregulated, say they follow industry standards when it comes to communicable diseases, including the use of gloves and single-use needles and the sterilization of equipment.

“The health risks are not coming from the established shops, but all the kids that are tattooing out of their garage,” says Mark Markus, who owns Embassy Tattoo in Adams Morgan and says he treats all customers the same—as if they all had communicable diseases.

Officials from the D.C. Department of Health were not immediately available for comment.

The proposed rules would also require tattoo artists and body piercers to take the very steps that would limit transmission of communicable diseases to begin with: use only single-use items such as needles, sterilize all implements and use gloves and aprons while working on customers. They would also mandate that tattoo artists and body piercers be vaccinated against Hepatitis B and that customers sign consent forms on which they would have to admit to any diseases or medical conditions.

The rules would also impose a 24-hour waiting period between when a tattoo or piercing is requested and when it is given, though city officials say that the waiting period has less to do with health and more to do with preventing “impulse” body art.

Neither Virginia nor Maryland include regulations related to any communicable disease carried by a customer, but rather mandate that basic precautions be taken to prevent the transmission of any blood-borne pathogen.

According to the Centers for Disease Control, only 260 of the 32,000 cases of HIV/AIDS transmission in 2011 came from “other” sources, which include hemophilia, blood transfusions, perinatal exposure, and unidentified exposures. The CDC also says that other communicable diseases like hepatitis are rarely spread through tattooing or piercing at established shops.

In testimony to the D.C. Council in 2011 on tattoo and piercing regulations, Dr. Gary Simon, the director of infectious disease at The George Washington University Medical Faculty Associates, testified that the risk of transmission of communicable diseases could be mitigated.

“With proper techniques the risk of [transmission] can be virtually eliminated,” he said.

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