By:  Nelson                                           S.B. No. 1137
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to regulation of tanning facilities; providing civil,
    1-2  administrative, and criminal penalties; appropriating certain fees
    1-3  and expenses.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subdivisions (3), (4), (5), and (6), Section
    1-6  145.002, Health and Safety Code, are amended to read as follows:
    1-7              (3)  "Operator" means an individual at the tanning
    1-8  facility who has the responsibility of assisting and instructing
    1-9  the public in the correct operation of the tanning facility.
   1-10              (4)  "Person" means an individual, partnership,
   1-11  corporation, or association.
   1-12              (5) <(4)>  "Phototherapy device" means a piece of
   1-13  equipment that emits ultraviolet radiation and is used by a health
   1-14  care professional in the treatment of disease.
   1-15              (6) <(5)>  "Tanning device" means any equipment,
   1-16  including a sunlamp, tanning booth, and tanning bed, that emits
   1-17  electromagnetic radiation with wavelengths in the air between 200
   1-18  and 400 nanometers and is used for the tanning of human skin.  The
   1-19  term includes any accompanying equipment, including protective
   1-20  eyewear, timers, and handrails.
   1-21              (7) <(6)>  "Tanning facility" means a business that
   1-22  provides persons access to or use of tanning devices.
   1-23        SECTION 2.  Section 145.006, Health and Safety Code, is
    2-1  amended to read as follows:
    2-2        Sec. 145.006.  WARNING SIGNS.  (a)  A tanning facility shall
    2-3  post a warning sign in a conspicuous location where it is readily
    2-4  visible by persons entering the establishment.  The board by rule
    2-5  shall specify the design, size, and graphics of the required sign.
    2-6  The sign must <have dimensions of at least 36 inches on each side
    2-7  and must> contain the following wording:
    2-8                    DANGER:  ULTRAVIOLET RADIATION
    2-9  Repeated exposure to ultraviolet radiation may cause chronic sun
   2-10  damage characterized by wrinkling, dryness, fragility, <and>
   2-11  bruising of the skin, and skin cancer.  Failure to use protective
   2-12  eyewear may result in severe burns or permanent injury to the eyes.
   2-13  Medications or cosmetics may increase your sensitivity to
   2-14  ultraviolet radiation.  Consult a physician before using a sunlamp
   2-15  if you are using medications, have a history of skin problems, or
   2-16  believe you are especially sensitive to sunlight.  Pregnant women
   2-17  or women taking oral contraceptives who use this product may
   2-18  develop discolored skin.
   2-19           IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO
   2-20      <WILL NOT> TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.
   2-21        (b)  A tanning facility shall also post a warning sign at
   2-22  each tanning device in a conspicuous location that is readily
   2-23  visible to a person about to use the device.  The board by rule
   2-24  shall specify the design, size, and graphics of the required sign.
   2-25  The sign must <have dimensions of at least 24 inches on each side
    3-1  and must> contain the following language:
    3-2                    DANGER:  ULTRAVIOLET RADIATION
    3-3        1.  Follow the manufacturer's instructions for use of this
    3-4  device.
    3-5        2.  Avoid too frequent or lengthy exposure.  As with natural
    3-6  sunlight, exposure can cause serious eye and skin injuries and
    3-7  allergic reactions.  Repeated exposure may cause skin cancer.
    3-8        3.  Wear protective eyewear.  Failure to use protective
    3-9  eyewear may result in severe burns or permanent damage to the eyes.
   3-10        4.  Do not sunbathe before or after exposure to ultraviolet
   3-11  radiation from sunlamps.
   3-12        5.  Medications or cosmetics may increase your sensitivity to
   3-13  ultraviolet radiation.  Consult a physician before using a sunlamp
   3-14  if you are using medication, have a history of skin problems, or
   3-15  believe you are especially sensitive to sunlight.  Pregnant women
   3-16  or women using oral contraceptives who use this product may develop
   3-17  discolored skin.
   3-18           IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO
   3-19                <WILL NOT> TAN FROM USE OF THIS DEVICE.
   3-20        SECTION 3.  Section 145.007, Health and Safety Code, is
   3-21  amended to read as follows:
   3-22        Sec. 145.007.  PROHIBITED CLAIMS ABOUT SAFETY.  A tanning
   3-23  facility shall <may> not claim or distribute promotional materials
   3-24  that claim that using a tanning device is safe or free from risk or
   3-25  will result in medical or health benefits.
    4-1        SECTION 4.  Section 145.008, Health and Safety Code, is
    4-2  amended to read as follows:
    4-3        Sec. 145.008.  OPERATIONAL REQUIREMENTS.  (a)  A tanning
    4-4  facility shall have an operator or operators present during
    4-5  operating hours.  The operator must be sufficiently knowledgeable
    4-6  in the correct operation of the tanning devices used at the
    4-7  facility and must <that the operator may> inform and assist each
    4-8  customer in the proper use of the tanning devices.
    4-9        (b)  Before each use of a tanning device, the operator shall
   4-10  provide the customer with clean and properly sanitized protective
   4-11  eyewear that protects the eyes from ultraviolet radiation and
   4-12  allows adequate vision to maintain balance.  The operator may not
   4-13  allow a person to use a tanning device if that person does not use
   4-14  <the> protective eyewear which meets the requirements of the United
   4-15  States Food and Drug Administration.  The operator also shall show
   4-16  each customer how to use suitable physical aids, such as handrails
   4-17  and markings on the floor, to maintain proper exposure distance as
   4-18  recommended by the manufacturer of the tanning device.
   4-19        (c)  The tanning facility shall clean and properly sanitize
   4-20  the body contact surfaces of a tanning device after each use of the
   4-21  tanning device.
   4-22        (d)  The tanning facility shall use a timer with an accuracy
   4-23  of at least plus or minus 10 percent of the maximum timer <any
   4-24  selected time> interval of the tanning device.  The facility shall
   4-25  limit the exposure time of a customer on a tanning device to the
    5-1  maximum exposure time recommended by the manufacturer.  The
    5-2  facility shall control the <interior> temperature of a tanning
    5-3  device and the surrounding area so that it may not exceed 100
    5-4  degrees Fahrenheit.
    5-5        (e)  Before <(d)  Either each time> a customer who is 18
    5-6  years of age or older uses a tanning facility device for the first
    5-7  time and <or> each time a person executes or renews a contract to
    5-8  use a tanning facility device, the person must sign a written and
    5-9  dated statement acknowledging that the person has read and
   5-10  understood the required warnings <before using the device> and
   5-11  agrees to use <the> protective eyewear <that the tanning facility
   5-12  provides>.
   5-13        (f) <(e)>  Before any person who is at least 14 years of age
   5-14  but younger than 18 years of age uses a tanning facility device for
   5-15  the first time, the person must give the tanning facility a written
   5-16  "consent to use" statement signed and dated by the person's parent
   5-17  or legal guardian stating that the parent or legal guardian has
   5-18  read and understood the warnings given by the tanning facility,
   5-19  consents to the minor's use of a tanning device, and agrees that
   5-20  the minor will use <the> protective eyewear <that the tanning
   5-21  facility provides>.  A person younger than 14 years of age must
   5-22  give the tanning facility a written "consent to use" statement
   5-23  signed and dated by the person's parent or legal guardian.  The <be
   5-24  accompanied by a> parent or legal guardian must remain at the
   5-25  tanning facility while a person younger than 14 years of age is
    6-1  <when> using a tanning device.
    6-2        (g)  When a tanning device is being used by an individual no
    6-3  other person shall be allowed to remain in the tanning device area.
    6-4        (h)  Individual records for each customer using a tanning
    6-5  device shall be maintained at the tanning facility for at least
    6-6  three years from the date of the customer's last use of a tanning
    6-7  device.  These individual records must include the date and time of
    6-8  day of each use of a tanning device, the length of time the tanning
    6-9  device was used in minutes, any injuries or illnesses resulting
   6-10  from the use of a tanning device, and any written or "consent to
   6-11  use" statement required by Subsections (e) and (f) of this section.
   6-12        SECTION 5.  Chapter 145, Health and Safety Code, is amended
   6-13  by adding Section 145.0081 to read as follows:
   6-14        Sec. 145.0081.  CHANGE OF LOCATION OR PLACE OF BUSINESS.  Not
   6-15  less than 30 days in advance of the change, the licensee shall
   6-16  notify the commissioner or the commissioner's designee in writing
   6-17  of the licensee's intent to change the location of a licensed place
   6-18  of business.  The notice shall include the address of the new
   6-19  location and the name and residence address of the individual in
   6-20  charge of the business at the new location.  Not more than 10 days
   6-21  after the completion of the change of location, the licensee shall
   6-22  notify the commissioner or the commissioner's designee in writing
   6-23  to verify the change of location, the address of the new location,
   6-24  and the name and residence address of the individual in charge of
   6-25  the business at the new address.  Notice will be deemed adequate if
    7-1  the licensee provides the intent and verification notices to the
    7-2  commissioner or the commissioner's designee by certified mail,
    7-3  return receipt requested, mailed to the central office of the
    7-4  department.
    7-5        SECTION 6.  Section 145.009, Health and Safety Code, is
    7-6  amended to read as follows:
    7-7        Sec. 145.009.  LICENSES <PERMITS>.  (a)  A person shall <may>
    7-8  not operate a tanning facility unless the person holds a license
    7-9  <permit> issued by the department to operate the facility.  A
   7-10  separate license is required for each tanning facility.
   7-11        (b)  The license <permit> shall be displayed in an open
   7-12  public area of the tanning facility.
   7-13        (c)  The board annually shall renew licenses <permits> after
   7-14  application for renewal is made on forms provided by the department
   7-15  for this purpose and after receipt of renewal fees.
   7-16        (d)  The department by rule may adopt a system under which
   7-17  licenses <permits> expire on various dates during the year.  As
   7-18  part of this system the license fees and annual renewal fees may be
   7-19  prorated on a monthly basis to reflect the actual number of months
   7-20  the license <permit> is valid.
   7-21        (e)  The department may revoke, <cancel,> suspend, suspend on
   7-22  an emergency basis, or probate by a commissioner's emergency order
   7-23  a license <permit> to operate a tanning facility for:
   7-24              (1)  a failure to pay a license <permit> fee or an
   7-25  annual renewal fee for a license <permit>;
    8-1              (2)  an applicant's acquisition or attempted
    8-2  acquisition of a license <permit> by fraud or deception;
    8-3              (3)  a violation of this chapter; <or>
    8-4              (4)  a violation of a rule of the department adopted
    8-5  under this chapter; or
    8-6              (5)  a violation of an order issued under this chapter.
    8-7        SECTION 7.  Section 145.010, Health and Safety Code, is
    8-8  amended to read as follows:
    8-9        Sec. 145.010.  FEES.  (a)  The board shall collect fees for:
   8-10              (1)  a license that is issued or renewed;
   8-11              (2)  a license that is amended, including notification
   8-12  of a change of location of a licensed place of business under
   8-13  Section 431.0081, a change of name of an association or
   8-14  corporation, or a change in the ownership of the licensee; and
   8-15              (3)  an inspection performed to enforce this subchapter
   8-16  and rules adopted under this subchapter.
   8-17        (b)  The board may charge annual fees.
   8-18        (c)  The board by rule shall set the fees in amounts that
   8-19  allow the department to recover at least 50 percent of the annual
   8-20  expenditures of state funds by the department for:
   8-21              (1)  reviewing and acting on a license;
   8-22              (2)  amending and renewing a license;
   8-23              (3)  inspecting a licensed facility; and
   8-24              (4)  implementing and enforcing this subchapter,
   8-25  including a rule or order adopted or a license issued under this
    9-1  subchapter.
    9-2        (d)  The department shall use not less than one-half of the
    9-3  license fees collected for inspecting licensed facilities or
    9-4  enforcing this subchapter and the remainder for the administration
    9-5  of this subchapter.
    9-6        (e)  All license fees received by the department under this
    9-7  subchapter shall be deposited in the state treasury to the credit
    9-8  of the food and drug registration fee fund and may be appropriated
    9-9  to the department for the administration and enforcement of this
   9-10  chapter.  <The department shall set and collect a permit fee of $50
   9-11  and an annual permit renewal fee of $35.>
   9-12        SECTION 8.  Chapter 145, Health and Safety Code, is amended
   9-13  by amending Sections 145.012 and 145.013 and adding Sections
   9-14  145.014 through 145.018 to read as follows:
   9-15        Sec. 145.012.  EMERGENCY ORDER.  (a)  The commissioner or a
   9-16  person designated by the commissioner may issue an emergency order,
   9-17  either mandatory or prohibitory in nature, in relation to the
   9-18  operation of a tanning facility in the department's jurisdiction if
   9-19  the commissioner or the person designated by the commissioner
   9-20  determines that:
   9-21              (1)  operation of the tanning facility creates or poses
   9-22  an immediate and serious threat to human life or health; and
   9-23              (2)  other procedures available to the department to
   9-24  remedy or prevent the occurrence of the situation will result in
   9-25  unreasonable delay.
   10-1        (b)  The commissioner or a person designated by the
   10-2  commissioner may issue the emergency order without notice and
   10-3  hearing if the commissioner or a person designated by the
   10-4  commissioner determines this is practicable under the
   10-5  circumstances.
   10-6        (c)  If an emergency order is issued without a hearing, the
   10-7  department shall determine a time and place for a hearing at which
   10-8  the emergency order may be affirmed, modified, or set aside.  The
   10-9  hearing shall be held under departmental rules.  <INJUNCTION.
  10-10  (a)  If the commissioner, an authorized agent, or a health
  10-11  authority finds that a person has violated or is violating or
  10-12  threatening to violate this chapter and that the violation or
  10-13  threat of violation creates an immediate threat to the health and
  10-14  safety of the public, the commissioner, authorized agent, or health
  10-15  authority may petition the district court for a temporary
  10-16  restraining order to restrain the violation or threat of violation.>
  10-17        <(b)  If a person has violated or is violating or threatening
  10-18  to violate this chapter the commissioner, an authorized agent, or a
  10-19  health authority may petition the district court for an injunction
  10-20  to prohibit the person from continuing the violation or threat of
  10-21  violation.>
  10-22        <(c)  On application for injunctive relief and a finding that
  10-23  a person is violating or threatening to violate this chapter, the
  10-24  district court shall grant any injunctive relief warranted by the
  10-25  facts.>
   11-1        <(d)  Venue for a suit brought under this section is in the
   11-2  county in which the violation or the threat of violation is alleged
   11-3  to have occurred or in Travis County.>
   11-4        Sec. 145.013.  CIVIL PENALTY; INJUNCTION.  (a)  If it appears
   11-5  that a person has violated, is violating, or is threatening to
   11-6  violate this Act or any rule adopted or order issued under this
   11-7  Act, the commissioner may request the attorney general of this
   11-8  state or the district, county, or city attorney of the city or
   11-9  county in which the violation has occurred, is occurring, or may
  11-10  occur to institute a civil suit for:
  11-11              (1)  an order enjoining the violation or an order
  11-12  directing compliance;
  11-13              (2)  a permanent or temporary injunction, restraining
  11-14  order, or other appropriate order if the department shows that the
  11-15  person has engaged in, is engaged in, or is about to engage in any
  11-16  violation;
  11-17              (3)  the assessment and recovery of a civil penalty; or
  11-18              (4)  both the injunctive relief and civil penalty.
  11-19        (b)  The penalty may be in an amount not to exceed $25,000 a
  11-20  day for each violation.  Each day of violation constitutes a
  11-21  separate violation for purposes of penalty assessment.
  11-22        (c)  In determining the amount of the penalty, at a minimum,
  11-23  the court shall consider:
  11-24              (1)  the person's history of previous violations;
  11-25              (2)  the seriousness of the violation;
   12-1              (3)  the hazard to the health and safety of the public;
   12-2              (4)  the demonstrated good faith of the person charged;
   12-3  and
   12-4              (5)  such other matters as justice may require.
   12-5        (d)  Venue for a suit brought under this section is in the
   12-6  city or county in which the violation occurred or in Travis County.
   12-7        (e)  Any civil penalty recovered in a suit instituted by a
   12-8  local government under this Act shall be paid to that local
   12-9  government.
  12-10        (f)  The commissioner and the attorney general may each
  12-11  recover reasonable expenses incurred in obtaining injunctive relief
  12-12  or civil penalties or both under this section, including
  12-13  investigative costs, court costs, reasonable attorney fees, witness
  12-14  fees, and deposition expenses.  The expenses recovered by the
  12-15  commissioner are hereby appropriated to the department for the
  12-16  administration and enforcement of this chapter.  The expenses
  12-17  recovered by the attorney general are hereby appropriated to the
  12-18  attorney general.
  12-19        Sec. 145.014.  ADMINISTRATIVE PENALTY.  (a)  The commissioner
  12-20  may assess an administrative penalty against a person who violates
  12-21  this chapter, a rule adopted or an order issued under this chapter,
  12-22  or a permit condition thereof.
  12-23        (b)  In determining the amount of the penalty, the
  12-24  commissioner shall consider:
  12-25              (1)  the person's previous violations;
   13-1              (2)  the seriousness of the violations;
   13-2              (3)  the hazard to the health and safety of the public;
   13-3              (4)  the person's demonstrated good faith; and
   13-4              (5)  other matters as justice may require.
   13-5        (c)  The penalty may not exceed $25,000 a day for each
   13-6  violation.
   13-7        (d)  Each day of a continuing violation constitutes a
   13-8  separate violation.
   13-9        Sec. 145.015.  ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
  13-10  (a)  The commissioner may assess an administrative penalty only
  13-11  after a person charged with a violation is given an opportunity for
  13-12  a hearing.
  13-13        (b)  If a hearing is held, the commissioner shall make
  13-14  findings of fact and shall issue a written decision regarding the
  13-15  violation and the penalty.
  13-16        (c)  If the person charged with the violation does not
  13-17  request a hearing, the commissioner may assess a penalty after
  13-18  determining that a violation has occurred and the amount of the
  13-19  penalty.
  13-20        (d)  The commissioner shall issue an order requiring a person
  13-21  to pay a penalty assessed under this section.
  13-22        (e)  The commissioner may consolidate a hearing held under
  13-23  this section with another proceeding.
  13-24        Sec. 145.016.  PAYMENT OF ADMINISTRATIVE PENALTY.  (a)  Not
  13-25  later than the 30th day after the date an order is issued under
   14-1  Section 145.015, the commissioner shall notify the person against
   14-2  whom the penalty is assessed of the order.
   14-3        (b)  Not later than the 30th day after the date notice of the
   14-4  order is given to the person, the person shall:
   14-5              (1)  pay the penalty in full; or
   14-6              (2)  seek judicial review of the penalty or the
   14-7  findings of the commissioner.
   14-8        (c)  If the person seeks judicial review, the person shall:
   14-9              (1)  send the amount of the penalty to the commissioner
  14-10  for placement in an escrow account; or
  14-11              (2)  post with the commissioner a bond for the amount
  14-12  of the penalty.
  14-13        (d)  A bond posted under this section must be in a form
  14-14  approved by the commissioner and must be effective until judicial
  14-15  review of the order or decision is final.
  14-16        (e)  A person who does not send the money to the commissioner
  14-17  or post the bond within the period described by Subsection (b)
  14-18  waives all rights to contest the violation or the amount of the
  14-19  penalty.
  14-20        (f)  The attorney general, at the request of the
  14-21  commissioner, may bring a civil action to recover an administrative
  14-22  penalty assessed under this subchapter.
  14-23        Sec. 145.017.  REFUND OF ADMINISTRATIVE PENALTY.  Not later
  14-24  than the 30th day after the date of a judicial determination that
  14-25  an administrative penalty against a person should be reduced or not
   15-1  assessed, the commissioner shall:
   15-2              (1)  remit to the person the appropriate amount of any
   15-3  penalty payment plus accrued interest; or
   15-4              (2)  execute a release of the bond if the person has
   15-5  posted a bond.
   15-6        Sec. 145.018.  CRIMINAL PENALTY.  (a)  A person, other than a
   15-7  customer, commits an offense if the person <knowingly or
   15-8  recklessly> violates this chapter or a rule adopted under this
   15-9  chapter.
  15-10        (b)  An offense under this chapter is a Class A <C>
  15-11  misdemeanor.
  15-12        SECTION 9.  Fees collected under Section 145.009, Health and
  15-13  Safety Code, and deposited in the general revenue fund to the
  15-14  credit of the food and drug registration fee fund are hereby
  15-15  appropriated to the Texas Department of Health for the
  15-16  administration and enforcement of Chapter 145, Health and Safety
  15-17  Code.
  15-18        SECTION 10.  This Act takes effect September 1, 1993.
  15-19        SECTION 11.  The importance of this legislation and the
  15-20  crowded condition of the calendars in both houses create an
  15-21  emergency and an imperative public necessity that the
  15-22  constitutional rule requiring bills to be read on three several
  15-23  days in each house be suspended, and this rule is hereby suspended,
  15-24  and that this Act take effect and be in force according to its
  15-25  terms, and it is so enacted.