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.