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Thursday, August 25,2011

Needling disputes

Arguments on body art program get personal

By Elizabeth Miller
Mike Shuger and Carlos Haas

Despite sharing a common interest — protecting the public while they get body art — some Boulder County body artists and the Boulder County Public Health department are struggling to resolve their differences in ongoing disputes that both sides say have become increasingly personal.

Body artists have complained that their efforts to work with the county to develop an effective program for regulating body art have been ignored; public health staff say that they’re not getting constructive input. Body artists say they want inspections, but want them with an affordable licensing fee; Public Health says their ability to get the paperwork and inspections done with limited payable hours available for their staff is impeded by regular open records requests from body artists. County officials say body artists only behave themselves and keep clean shops because there are regulations and enforcement; body artists cite studies that show it’s education, not regulation, that makes the biggest impact in preventing infections from body art procedures.

If the pace continues, the process could land in district court.

Mike Shuger, owner of Tribal Rites, tested out the process for reviewing BCPH practices earlier this year. A month after his annual inspection with the public health department, he received a letter that he was being fined $250 for his staff preventing the inspection from being completed — although the paperwork for the inspection had been signed and submitted by the inspector.

The letter threatens revocation of Tribal Rites’ license for continued failure to comply with body art program regulations and refers to multiple instances of interfering with an inspection, but those instances are at separate shops, which each have their own license.

“So you’re going to now fine me for violations across multiple licenses,” Shuger says. “Do I need to have two licenses then?” Shuger requested a hearing to contest the violation.

“The facility was cited because they had interfered with our staff ’s ability to conduct an inspection, and in our regulations a facility’s license can be revoked for that,” says Lane Drager, consumer protection program coordinator for Boulder County Public Health. “It’s unfortunate. It’s been a very contentious relationship, at least with some of the staff there. It’s certainly not how we want things to move forward in the future.”

The inspections are conducted by a Boulder County Public Health staff member who works just four hours a week, and that short schedule, in addition to the time necessary to have meetings and draft a letter, contributed to the delay in notifying Tribal Rites about their fine, he says.

“We don’t have a concern that it only took four weeks to get that letter out to them,” Drager says.

Nor did he see a problem with the inspector, Melissa Ellis, not mentioning that the inspection was incomplete at the time.

“If things are not going in a positive direction, I think that’s an important time for her not to push,” he says. “It’s a fine line of not wanting to escalate things.”

Tribal Rites is one of a few tattoo shops in Boulder County Ellis is no longer allowed to inspect alone.

“We want to make sure we have two people so there are two sets of eyes to see how things are going,” Drager says.

The public health staffer accompanying Ellis during the inspection testified at the hearing and backed Ellis’ argument that she’d felt unable to do her job.

Shuger almost had to go to the hearing — to sit down with six Public Health Department employees, including the assistant county attorney — alone. He’d arrived for the hearing with enough Tribal Rites staff to fill the waiting room at the public health office, plus Wolf Wolfstar and Tara Gray-Wolfstar of Enchanted Ink, to serve as witnesses, as well as a lawyer Wolfstar recently hired. Boulder County Public Health Director Jeff Zayach took one look at the crowd and said he wouldn’t allow in anyone but the Tribal Rites employees directly involved in the inspection at the Longmont shop. When Shuger declared he wouldn’t go without his staff, Zayach said they would just proceed with the hearing, which Shuger had requested, without him.

Zayach consulted with the county attorney, then permitted everyone but the Enchanted Ink staff to attend the hearing; Shugar had no legal counsel of his own on hand to discuss his rights.

The civil penalty letter echoes what the inspector noted in the inspection report: “During the inspection, Carlos [Haas] was on the phone listening & talking, interrupting, inhibiting my ability to speak with employees.”

“Mr. Haas was also verbally abusive and disruptive,” reads the letter, which was signed by Drager.

“This is my job,” Ellis said during the hearing. “I have to be able to inspect you guys. Being yelled at, being harassed makes it difficult to do my job.”

Haas concedes he may have gotten a little out of hand.

“I’m abrasive at times. I’m unfiltered,” he says.

In the past, he has been asked not to attend meetings for body artists held by the Board of Health because of his tendency to dominate the conversation, interrupt, wander from the topic of discussion, and generally be adversarial, according to a letter informing him he is welcome to attend meetings only as long as he conducts himself civilly and professionally.

He’s probably a bit of a pain in the ass, he says. He files a lot of open records requests and talks to anyone he can in the Public Health Department.

“If I thought that my being on the phone would have gotten us anywhere close to a violation, I never would have done it,” Haas says.

He’s requested that questions during an inspection be put in writing so it’s clear what’s being asked. That request is what got the Boulder Tribal Rites the previous violation for impeding an inspection.

“I got fined for not talking to her, then I got fined because I talked and interjected during the inspection to let the artist know, ‘Hey, she’s asking questions that are not in the regulations or aren’t within our purview,’” Haas says. “So, can’t win either way.”

The civil penalty letter also mentions what the inspection report does not: The Tribal Rites employee assisting with the inspection, Sam McConnell, asked that the inspector, Melissa Ellis, not enter a workstation for a body artist who was not present.

“Our tattoo artists are private contractors. If they’re not there, I’m not going to go through their shit,” McConnell said at the hearing.

“There has to be some expectation of privacy for a private business,” Shuger argued. “If in fact these regulations assume that there is no privacy, then you have powers far beyond that extended to police officers.”

But the artist had client paperwork in his workstation, and the inspector has to be able to review those records, according to the county body art program regulations.

Shuger paid the fine, but says this feels like it’s just the beginning.

“I’ve started to get a sense that it might be more serious going forward,” he says. “The problem is, they wouldn’t shut us down for something that we did in violation of the regulations. They’d shut us down for something that we did personally against them, and that’s what I’m worried about.”

Getting singled out concerns Haas, who has been a tattoo artist for 18 years.

“I don’t want to get fired from my job, but they’re making it really difficult for me to be able to exercise my rights as just as a citizen, as a person that should be involving themselves in this political process of tattoo regulation,” Haas says.

The public health department has been working to revise the program, Drager says, and he thinks things are going well. They were able to implement a more affordable license structure, dropping fees for shops that do both piercings and tattoos from more than $600 to $353, and he says they’re working to do more outreach, particularly with incoming students.

They have no desire to shut any specific tattoo shop down, he says, although “that’s certainly something that could happen if we really saw a continuation of violations. There certainly are processes to revoke licenses, but that’s not part of our long-range planning.”

After an extended dispute over the number of sinks in Enchanted Ink, and a denied variance requests that detailed the $7,500 cost of installation, a seven to 10-day shutdown, and the necessity of shutting off water to other Pearl Street businesses, Wolfstar has hired a lawyer.

Body art shop owners who would like to see their issues readdressed have only the option of internal review with Boulder County Public Health. The Board of Health, a five-member citizen board that oversees Boulder County Public Health, hears variance requests and addresses concerns for only a limited number of matters.

“I think it’s important to recognize that the statute requires and provides for an appeal of that process, so anyone who’s assessed a penalty can appeal to the district court and get another opinion to see if that process has been fair,” says County Commissioner Ben Pearlman.

The county commissioners are responsible for appointing Board of Health members.

“If they feel that the decision made by Public Health is in error, then, yes, they should appeal that,” Pearlmans says. “If it’s more of question about whether what Public Health is doing is complying or should be modified in some other way, that’s a policy question. Then they should talk to Public Health directly.”

Both sides are feeling personally attacked, though neither sees themselves as having started these attacks.

No one likes to be inspected, Pearlman and Drager both said, but the body artists argue otherwise.

“Truly, you’re missing the point here,” Haas says. “I want three or four inspections a year.”

For $353 per year, he says, the program should include more outreach and education, inspections on “piercing pagodas,” places that offer earlobe piercing only, and more efforts to crack down on unlicensed tattoo artists — so-called “scratchers” who practice out of their own homes and aren’t monitored at all.

“People are involved. Oftentimes things can get emotional,” Pearlman says. “Everybody just has to recognize that somebody’s trying to run a business, and somebody’s trying to do their job to ensure public safety.”

The primary concern, all around, has been public health.

“We certainly have a desire to work with facilities in order to make sure we’re protecting the public health. We’d certainly like to see certain relationships improve,” Drager says. “Our goal is protecting the public health, and it’s great when that is a primary mission of the facilities.”

Their work is unnecessary, Shuger argues.

“I don’t need the government to tell me to be in compliance so my customers like me,” he says.

“For the public to know that they’re going into a shop to do something as intrusive as needlework means that those shops have an absolute obligation to ensure public health and safety,” Pearlman says. “That has to be the overriding mission of Public Health, and it really has to be what any good body art shop will do, and there should be a way to work that out.”


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