By Nelson S.B. No. 1137
Substitute the following for S.B. No. 1137:
By Berlanga C.S.S.B. No. 1137
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of tanning facilities; providing for
1-3 fees, providing for emergency orders; providing for civil and
1-4 administrative penalties; providing for injunctive relief; raising
1-5 criminal penalties; and declaring an emergency.
1-6 SECTION 1. Tex. Health & Safety Code Ann., Sec. 145.002 is
1-7 amended to read as follows:
1-8 Sec. 145.002. Definitions. In this chapter:
1-9 (1) "Adulterated" has the meaning given in the Texas
1-10 Food, Drug, and Cosmetic Act, Chapter 431.111 of this code, as
1-11 interpreted in the rules of the board and judicial decision.
1-12 (2) <(1)> "Authorized agent" means an employee of the
1-13 department designated by the commissioner to enforce this chapter.
1-14 (3) <(2)> "Health authority" has the meaning given to
1-15 it in the Local Public Health Reorganization Act (Chapter 121,
1-16 Health and Safety Code) <means a physician designated to administer
1-17 state and local laws relating to public health>.
1-18 (4) "Misbranded" has the meaning given in the Texas
1-19 Food, Drug, and Cosmetic Act, Chapter 431.112 of this code, as
1-20 interpreted in the rules of the board of judicial decision.
1-21 (5) "Operator" means a tanning facility owner or an
1-22 agent of a tanning facility owner.
1-23 (6) <(3)> "Person" means an individual, partnership,
1-24 corporation, or association.
2-1 (7) <(4)> "Phototherapy device" means a piece of
2-2 equipment that emits ultraviolet radiation and is used by a health
2-3 care professional in the treatment of disease.
2-4 (8) <(5)> "Tanning device" is a medical device and has
2-5 the meaning given in the Texas Food, Drug, and Cosmetic Act,
2-6 Chapter 431.002 of this code and also means any equipment,
2-7 including a sunlamp, tanning booth, and tanning bed, that emits
2-8 electromagnetic radiation with wavelengths in the air between 200
2-9 and 400 nanometers and is used for the tanning of human skin. The
2-10 term includes any accompanying equipment, including protective
2-11 eyewear, timers, and handrails.
2-12 (9) <(6)> "Tanning facility" means a business that
2-13 provides a person<s> access to or use of a tanning device<s>.
2-14 SECTION 2. Tex. Health & Safety Code Ann., Sec. 145.004, is
2-15 amended to read as follows:
2-16 Sec. 145.004. Compliance with all Federal <Law> and State
2-17 Laws. (a) A tanning device used by a tanning facility must comply
2-18 with all applicable federal <laws> and state laws and regulations.
2-19 (b) If the department identifies an adulterated or
2-20 misbranded tanning device, the department may enforce the
2-21 applicable provisions of the Texas Food, Drug, and Cosmetic Act,
2-22 Chapter 431 of this code against the person or persons who
2-23 adulterated or misbranded the tanning device or who are suspected
2-24 of adulterating or misbranding the tanning device.
2-25 SECTION 2. Tex. Health & Safety Code Ann., Sec. 145.006 is
2-26 amended to read as follows:
2-27 Sec. 145.006. Warning Signs. (a) A tanning facility
3-1 operator shall post a warning sign in a conspicuous location where
3-2 it is readily visible by persons entering the establishment. The
3-3 board by rule shall specify the size, design and graphics of the
3-4 required sign. The sign must have dimensions of at least 11 by 17
3-5 <36> inches <on each side> and must contain the following wording:
3-6 DANGER: ULTRAVIOLET RADIATION
3-7 Repeated exposure to ultraviolet radiation may cause chronic
3-8 sun damage characterized by wrinkling, dryness, fragility, <and>
3-9 bruising of the skin, and skin cancer.
3-10 Failure to use protective eyewear may result in severe burns
3-11 or permanent injury to the eyes.
3-12 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 medications, have a history of skin problems, or
3-15 believe you are especially sensitive to sunlight. Pregnant women
3-16 or women taking oral contraceptives who use this product may
3-17 develop discolored skin.
3-18 IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO <WILL NOT>
3-19 TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.
3-20 (b) A tanning facility operator shall also post a warning
3-21 sign at each tanning device in a conspicuous location that is
3-22 readily visible to a person about to use the device. The board by
3-23 rule shall specify the size, design and graphics of the required
3-24 sign. The sign must have dimensions of at least 11 by 17 <24>
3-25 inches <on each side> and must contain the following wording
3-26 <language>:
3-27 DANGER: ULTRAVIOLET RADIATION
4-1 1. Follow the manufacturer's instructions for use of this
4-2 device.
4-3 2. Avoid too frequent or lengthy exposure. As with natural
4-4 sunlight, exposure can cause serious eye and skin injuries and
4-5 allergic reactions. Repeated exposure may cause skin cancer.
4-6 3. Wear protective eyewear. Failure to use protective
4-7 eyewear may result in severe burns or permanent damage to the eyes.
4-8 4. Do not sunbathe before or after exposure to ultraviolet
4-9 radiation from sunlamps.
4-10 5. Medications or cosmetics may increase your sensitivity to
4-11 ultraviolet radiation. Consult a physician before using a sunlamp
4-12 if you are using medication, have a history of skin problems, or
4-13 believe you are especially sensitive to sunlight. Pregnant women
4-14 or women using oral contraceptives who use this product may develop
4-15 discolored skin.
4-16 IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO <WILL NOT>
4-17 TAN FROM USE OF THIS DEVICE.
4-18 (c) The department shall include with the initial and
4-19 renewal license application, a notice reflecting the current
4-20 wording, design, and graphics of the warning signs.
4-21 SECTION 3. Tex. Health & Safety Code Ann., Sec. 145.007, is
4-22 amended to read as follows:
4-23 Sec. 145.007. Prohibited Claims About Safety. A tanning
4-24 facility operator shall <may> not claim or distribute promotional
4-25 materials that claim that using a tanning device is safe or free
4-26 from risk or that using the device will result in medical or health
4-27 benefits.
5-1 SECTION 4. Tex. Health & Safety Code Ann., Sec. 145.008, is
5-2 amended by amending Subsections (a) through (e) and adding
5-3 Subsections (g) and (h) to read as follows:
5-4 Sec. 145.008. Operational Requirements. (a) A tanning
5-5 facility shall have an operator present during operating hours.
5-6 The operator must:
5-7 (1) be sufficiently knowledgeable in the correct
5-8 operation of the tanning devices used at the facility <that the
5-9 operator may inform and>;
5-10 (2) instruct, inform, and assist each customer in the
5-11 proper use of the tanning devices;
5-12 (3) complete and maintain the records required by this
5-13 Act or in the board's rules; and
5-14 (4) understand, be competent to explain, and at a
5-15 minimum, inform each customer using a tanning facility for the
5-16 first time of:
5-17 (A) the potential hazards and protective
5-18 measures associated with ultraviolet radiation exposure;
5-19 (B) the requirement to wear protective eyewear
5-20 while using the tanning device;
5-21 (C) the possibility of photosensitivity and
5-22 photoallergenic reaction of some persons to drugs, medicine, and
5-23 other agents when subjected to sun and ultraviolet radiation
5-24 exposure;
5-25 (D) the correlation between skin type and
5-26 exposure time; and the maximum exposure time of the facility's
5-27 devices;
6-1 (E) the biological process of tanning;
6-2 (F) the dangers and necessity of avoiding
6-3 overexposure;
6-4 (b) Before each use of a tanning device, the operator shall
6-5 <provide the customer with> ensure that each device is accompanied
6-6 by clean and properly sanitized protective eyewear that protects
6-7 the eyes from ultraviolet radiation and allows adequate vision to
6-8 maintain balance. The protective eyewear shall be located in the
6-9 immediate proximity of each tanning device and shall be provided
6-10 without charge to each user of a tanning device. The operator may
6-11 not allow a person to use a tanning device if that person does not
6-12 use <the> protective eyewear which meets the requirements of the
6-13 United States Federal Food and Drug Administration. The operator
6-14 also shall show each customer how to use suitable physical aids,
6-15 such as handrails and markings on the floor, to maintain proper
6-16 exposure distance as recommended by the manufacturer of the tanning
6-17 device.
6-18 (c) The tanning facility operator shall clean and properly
6-19 sanitize the body contact surfaces of a tanning device after each
6-20 use of the tanning device.
6-21 (d) <(c)> The tanning facility operator shall use a timer
6-22 with an accuracy of at least plus or minus 10 percent of the
6-23 maximum timer <any selected time> interval of the tanning device.
6-24 The <facility> operator shall limit the exposure time of a customer
6-25 on a tanning device to the maximum exposure time recommended by the
6-26 manufacturer. Timers shall be located so that the customer may not
6-27 set or reset the customer's own exposure time. The operator
7-1 <facility> shall control the <interior> temperature of a tanning
7-2 device and the surrounding area so that it may not exceed 100
7-3 degrees Fahrenheit.
7-4 (e) <(d)> Before <Either each time> a customer who is 18
7-5 years of age or older uses a tanning facility device for the first
7-6 time and <or> each time a person executes or renews a contract to
7-7 use a tanning facility device, the person must sign a written, and
7-8 dated statement acknowledging that the person has read and
7-9 understood the required warnings <before using the device> and
7-10 agrees to use <the> protective eyewear <that the tanning facility
7-11 provides>.
7-12 (f) <(e)> Before any person who is <at least 14 years of age
7-13 but> younger than 18 years of age uses a tanning facility device
7-14 for the first time, the person must give the operator <tanning
7-15 facility> a written informed consent statement signed and dated by
7-16 the person's parent or legal guardian stating that the parent or
7-17 legal guardian has read and understood the warnings given by the
7-18 tanning facility, consents to the minor's use of a tanning device,
7-19 and agrees that the minor will use <the> protective eyewear. <that
7-20 the tanning facility provides.> In addition, a person younger than
7-21 14 years of age must be accompanied by a parent or legal guardian
7-22 <when> who shall remain at the tanning facility while a person
7-23 younger than 14 years of age is using a tanning device.
7-24 (g) When a tanning device is being used by an individual no
7-25 other person shall be allowed to remain in the tanning device area.
7-26 (h) Individual records for each customer using a tanning
7-27 device shall be maintained at the tanning facility for at least
8-1 three years from the date of the customer's last use of a tanning
8-2 device. The Texas Board of Health by rule shall specify the
8-3 design, size and content of these individual records which must
8-4 include the date and time of day of each use of a tanning device,
8-5 the length of time the tanning device was used in minutes, any
8-6 injuries or illnesses resulting from the use of a tanning device,
8-7 and any written or informed consent statement required by
8-8 subsection (e) and (f) of this section.
8-9 SECTION 5. Health & Safety Code Ann. Sec. 145.009, is
8-10 amended to read as follows:
8-11 Sec. 145.009. LICENSES <Permits>. (a) A person shall <may>
8-12 not operate a tanning facility unless the person holds a license
8-13 <permit> issued by the department to operate the facility. Unless
8-14 the department revokes or suspends a license as provided in
8-15 Subsection (e) of this section, the license is valid for one year
8-16 from the date of issuance and a separate license is required for
8-17 each tanning facility.
8-18 (b) The license <permit> shall be displayed in an open
8-19 public area of the tanning facility.
8-20 (c) The board annually shall renew licenses <permits> after
8-21 application for renewal is made on forms provided by the department
8-22 for this purpose and after receipt of renewal fees.
8-23 (d) The department by rule may adopt a system under which
8-24 licenses <permits> expire on various dates during the year. As
8-25 part of this system the license fees and annual renewal fees may be
8-26 prorated on a monthly basis to reflect the actual number of months
8-27 the license <permit> is valid.
9-1 (e) The department may revoke, <cancel>, suspend, suspend on
9-2 an emergency basis, or probate by a commissioner's emergency order,
9-3 a license <permit> to operate a tanning facility for:
9-4 (1) a failure to pay a license <permit> fee or an
9-5 annual renewal fee for a license <permit>;
9-6 (2) an applicant's acquisition or attempted
9-7 acquisition of a license <permit> by fraud or deception;
9-8 (3) a violation of this chapter; <or>
9-9 (4) a violation of a rule the department adopted under
9-10 this chapter;<.> or
9-11 (5) a violation of an order issued under this chapter.
9-12 (f) A license issued under this Act and the board's rules
9-13 shall be returned to the department if the tanning facility:
9-14 (1) ceases business or otherwise ceases operation on a
9-15 permanent basis;
9-16 (2) relocates; or
9-17 (3) changes ownership.
9-18 SECTION 7. Tex. Health & Safety Code Ann., Sec. 145.010, is
9-19 amended to read as follows:
9-20 Sec. 145.010. Fees. (a) The board shall collect fees for:
9-21 (1) a license that is issued or renewed; and
9-22 (2) a license that is amended, including notification
9-23 of a change of location of a licensed place of business, a change
9-24 of name of an association or corporation, or a change in the
9-25 ownership of the licensee.
9-26 (b) The board may charge prorated or annual fees.
9-27 (c) The board by rule shall set the fees in amounts that
10-1 allow the department to recover at least 50 percent of the annual
10-2 expenditures of state funds by the department in:
10-3 (1) reviewing and acting on a license;
10-4 (2) amending and renewing a license;
10-5 (3) inspecting a licensed facility; and
10-6 (4) implementing and enforcing this subchapter,
10-7 including a rule or order adopted or a license issued under this
10-8 subchapter.
10-9 (d) The department shall use not less than one-half of
10-10 license fees collected for inspecting a licensed facility or
10-11 enforcing this subchapter, and the remainder for the administration
10-12 of this subchapter.
10-13 (e) All license fees received by the department under this
10-14 subchapter shall be deposited in the state treasury to the credit
10-15 of the food and drug registration fee fund and are hereby
10-16 appropriated to the department for the administration and
10-17 enforcement of this chapter. <The department shall set and collect
10-18 a permit fee of $50 and an annual permit renewal fee of $35.>
10-19 SECTION 7. Tex. Health & Safety Code Ann., Sec. 145.011 is
10-20 amended to add Subsection (c) to read as follows:
10-21 (c) A person who is required to maintain records under this
10-22 chapter or a person who is in charge or custody of those records
10-23 shall, at the request of an authorized agent or health authority,
10-24 permit the authorized agent or the health authority at all
10-25 reasonable times access to and to copy and verify the records.
10-26 SECTION 8. Health & Safety Code Ann., Chapter 145, is
10-27 amended by amending Sections 145.012 and 145.013, and by adding
11-1 Sections 145.014 through 145.018, to read as follows:
11-2 Sec. 145.012. EMERGENCY ORDER. (a) The commissioner or a
11-3 person designated by the commissioner may issue an emergency order,
11-4 either mandatory or prohibitory in nature, in relation to the
11-5 operation of a tanning facility in the department's jurisdiction if
11-6 the commissioner or the person designated by the commissioner
11-7 determines that:
11-8 (1) operation of the tanning facility creates or poses
11-9 an immediate and serious threat to human life or health; and
11-10 (2) other procedures available to the department to
11-11 remedy or prevent the occurrence of the situation will result in
11-12 unreasonable delay.
11-13 (b) The commissioner or a person designated by the
11-14 commissioner may issue the emergency order without notice and
11-15 hearing if the commissioner or a person designated by the
11-16 commissioner determines this is practicable under the
11-17 circumstances.
11-18 (c) If an emergency order is issued without a hearing, the
11-19 department shall determine a time and place for a hearing at which
11-20 the emergency order is affirmed, modified, or set aside. The
11-21 hearing shall be held under departmental rules. <Injunction.
11-22 (a) If the commissioner, an authorized agent, or a health
11-23 authority finds that a person has violated or is threatening to
11-24 violate this chapter and that the violation or threat of violation
11-25 creates an immediate threat to the health and safety of the public,
11-26 the commissioner, authorized agent, or health authority may
11-27 petition the district court for a temporary restraining order to
12-1 restrain the violation or threat of violation.>
12-2 <(b) If a person has violated or is violating or threatening
12-3 to violate this chapter the commissioner, an authorized agent, or a
12-4 health authority may petition the district court for an injunction
12-5 to prohibit the person from continuing the violation or threat of
12-6 violation.>
12-7 <(c) On application for injunctive relief and a finding that
12-8 a person is violating or threatening to violate this chapter, the
12-9 district court shall grant any injunctive relief warranted by the
12-10 facts.>
12-11 <(d) Venue for a suit brought under this section is in the
12-12 county in which the violation or the threat of violation is alleged
12-13 to have occurred or in Travis County.>
12-14 Sec. 145.013. CIVIL PENALTY; INJUNCTION. (a) If it appears
12-15 that a person has violated, is violating, or is threatening to
12-16 violate this Act, or any rule adopted or order issued under this
12-17 Act, the commissioner may request the attorney general of this
12-18 state or district, county, or city attorney of the city or county
12-19 in which the violation has occurred, is occurring, or may occur to
12-20 institute a civil suit for:
12-21 (1) an order enjoining the violation or an order
12-22 directing compliance;
12-23 (2) a permanent or temporary injunction, restraining
12-24 order, or other appropriate order if the department shows that the
12-25 person has engaged in, is engaged in or is about to engage in any
12-26 violation;
12-27 (3) the assessment and recovery of a civil penalty; or
13-1 (4) both the injunctive relief and civil penalty.
13-2 (b) The penalty may be in a amount not to exceed $25,000 a
13-3 day for each violation. Each day of violation constitutes a
13-4 separate violation for purposes of penalty assessment.
13-5 (c) In determining the amount of the penalty, at a minimum,
13-6 the court shall consider:
13-7 (1) the person's history of previous violations;
13-8 (2) the seriousness of the violation;
13-9 (3) the hazard to the health and safety of the public;
13-10 (4) the demonstrated good faith of the person charged;
13-11 and
13-12 (5) such other matters as justice may require.
13-13 (d) Venue for a suit brought under this section is the city
13-14 or county in which the violation occurred or in Travis County.
13-15 (e) Any civil penalty recovered in a suit instituted by a
13-16 local government under this Act shall be paid to that local
13-17 government.
13-18 (f) The commissioner and the attorney general may each
13-19 recover reasonable expenses incurred in obtaining injunctive relief
13-20 or civil penalties or both under this section, including
13-21 investigative costs, court costs, reasonable attorney fees, witness
13-22 fees, and deposition expenses. The expenses recovered by the
13-23 commissioner are hereby appropriated to the department for the
13-24 administration and enforcement of this chapter. The expenses
13-25 recovered by the attorney general are hereby appropriated to the
13-26 attorney general.
13-27 Sec. 145.014. ADMINISTRATIVE PENALTY. (a) The commissioner
14-1 may assess an administrative penalty against a person who violates
14-2 this Chapter, a rule adopted, an order issued under this chapter,
14-3 or a permit condition thereof.
14-4 (b) In determining the amount of the penalty, the
14-5 commissioner shall consider:
14-6 (1) the person's previous violations;
14-7 (2) the seriousness of the violations;
14-8 (3) the hazard to the health and safety of the public;
14-9 (4) the person's demonstrated good faith; and
14-10 (5) other matters as justice may require.
14-11 (c) The penalty may not exceed $25,000 a day for each
14-12 violation.
14-13 (d) Each day of a continuing violation constitutes a
14-14 separate violation.
14-15 Sec. 145.015. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
14-16 (a) The commissioner may assess an administrative penalty only
14-17 after a person charged with a violation is given an opportunity for
14-18 a hearing.
14-19 (b) If a hearing is held, the commissioner shall make
14-20 findings of fact and shall issue a written decision regarding the
14-21 violation and the penalty.
14-22 (c) If the person charged with the violation does not
14-23 request a hearing, the commissioner may assess a penalty after
14-24 determining that a violation has occurred and the amount of the
14-25 penalty.
14-26 (d) The commissioner shall issue an order requiring a person
14-27 to pay a penalty assessed under this section.
15-1 (e) The commissioner may consolidate a hearing held under
15-2 this section with another proceeding.
15-3 Sec. 145.016. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
15-4 later than the 30th day after the date an order is issued under
15-5 Section 145.015, the commissioner shall notify the person against
15-6 whom the penalty is assessed of the order.
15-7 (b) Not later than the 30th day after the date notice of the
15-8 order is given to the person, the person shall:
15-9 (1) pay the penalty in full; or
15-10 (2) seek judicial review of the penalty or the
15-11 findings of the commissioner.
15-12 (c) If the person seeks judicial review, the person shall:
15-13 (1) send the amount of the penalty to the commissioner
15-14 for placement in an escrow account;
15-15 (2) post with the commissioner a bond for the amount
15-16 of the penalty;
15-17 (3) file with the commissioner a sworn affidavit of
15-18 the person stating that the person is financially unable to pay the
15-19 amount of the penalty and is financially unable to post the bond
15-20 for the amount of the penalty.
15-21 (d) The commissioner may contest the affidavit filed under
15-22 Subsection (c) of this section within five days of the receipt of
15-23 the affidavit in a district court in Travis County.
15-24 (1) The court shall hold a hearing on the facts
15-25 alleged in the affidavit as soon as practicable and shall stay the
15-26 enforcement of the penalty on a finding that the facts alleged in
15-27 the affidavit are true.
16-1 (2) A person who files an affidavit has the burden of
16-2 proving that the person in financially unable to pay the amount of
16-3 the penalty or is financially unable to post bond.
16-4 (e) A bond posted under this section must be in a form
16-5 approved by the commissioner and must be effective until judicial
16-6 review of the order or decision is final.
16-7 (f) A person who does not send the money to the
16-8 commissioner, post the bond, or file an affidavit of financial
16-9 inability to pay the penalty to post the bond described in this
16-10 section, waives all rights to contest the violation or the amount
16-11 of the penalty.
16-12 (e) If the person does not pay the amount of the penalty,
16-13 and the court does not stay the enforcement of the penalty, the
16-14 commissioner may request the attorney general to bring an action to
16-15 collect the administrative penalty assessed under Section 145.015.
16-16 Sec. 145.017. REFUND OF ADMINISTRATIVE PENALTY. Not later
16-17 than the 30th day after the date of a judicial determination that
16-18 an administrative penalty against a person should be reduced or not
16-19 assessed, the commissioner shall:
16-20 (1) remit to the person the appropriate amount of any
16-21 penalty payment plus accrued interest; or
16-22 (2) execute a release of the bond if the person has
16-23 posted a bond.
16-24 Sec. 145.018. <Sec. 145.013> CRIMINAL PENALTY. (a) A
16-25 person, other than a customer, commits an offense if the person
16-26 <knowingly or recklessly> violates this chapter or a rule adopted
16-27 under this chapter.
17-1 (b)) An offense under this chapter is a Class A <C>
17-2 misdemeanor.
17-3 SECTION 10. This Act takes effect September 1, 1993.
17-4 SECTION 11. (a) A change in the law made by this Act
17-5 applies only to an offense committed on or after the effective date
17-6 of this Act. For the purposes of this section, an offense is
17-7 committed before the effective date of this Act if any element of
17-8 the offense occurs before that date.
17-9 (b) An offense committed before the effective date of this
17-10 Act is covered by the law in effect when the offense was committed,
17-11 and the former law is continued in effect for this purpose.
17-12 SECTION 12. The importance of this legislation and the
17-13 crowded condition of the calendars in both houses create an
17-14 emergency and an imperative public necessity that the
17-15 constitutional rule requiring bills to be read on three several
17-16 days in each house be suspended, and this rule is hereby suspended,
17-17 and that this Act take effect and be in force according to its
17-18 terms, and it is so enacted.