By: Nelson S.B. No. 1137
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the amendment of Chapter 145, Texas Health and Safety
1-2 Code, Tanning Facilities, to amend fees; add emergency orders; add
1-3 civil and injunctive penalties; add administrative penalties; and
1-4 amend criminal penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subdivisions 3 through 7, Section 145.002, Health
1-7 and Safety Code, are amended to read as follows:
1-8 (3) "Operator" means an individual at the tanning
1-9 facility who has the responsibility of assisting and instructing
1-10 the public in the correct operation of the tanning facility.
1-11 (4) <(3)> "Person" means an individual, partnership,
1-12 corporation, or association.
1-13 (5) <(4)> "Phototherapy device" means a piece of
1-14 equipment that emits ultraviolet radiation and is used by a health
1-15 care professional in the treatment of disease.
1-16 (6) <(5)> "Tanning device" means any equipment,
1-17 including a sunlamp, tanning booth, and tanning bed, that emits
1-18 electromagnetic radiation with wavelengths in the air between 200
1-19 and 400 nanometers and is used for the tanning of human skin. The
1-20 term includes any accompanying equipment, including protective
1-21 eyewear, timers, and handrails.
1-22 (7) <(6)> "Tanning facility" means a business that
1-23 provides persons access to or use of tanning devices.
2-1 SECTION 2. Section 145.006, Health and Safety Code, is
2-2 amended to read as follows:
2-3 Sec. 145.006. WARNING SIGNS. (a) A tanning facility shall
2-4 post a warning sign in a conspicuous location where it is readily
2-5 visible by persons entering the establishment. The Texas Board of
2-6 Health by rule shall specify the design, size and graphics of the
2-7 required sign. The sign must <have dimensions of at least 36
2-8 inches on each side and must> contain the following wording:
2-9 DANGER: ULTRAVIOLET RADIATION
2-10 Repeated exposure to ultraviolet radiation may cause chronic sun
2-11 damage characterized by wrinkling, dryness, fragility, <and>
2-12 bruising of the skin, and skin cancer. Failure to use protective
2-13 eyewear may result in severe burns or permanent injury to the eyes.
2-14 Medications or cosmetics may increase your sensitivity to
2-15 ultraviolet radiation. Consult a physician before using a sunlamp
2-16 if you are using medications, have a history of skin problems, or
2-17 believe you are especially sensitive to sunlight. Pregnant women
2-18 or women taking oral contraceptives who use this product may
2-19 develop discolored skin.
2-20 IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO <WILL NOT> TAN
2-21 FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.
2-22 (b) A tanning facility shall also post a warning sign at
2-23 each tanning device in a conspicuous location that is readily
2-24 visible to a person about to use the device. The Texas Board of
2-25 Health by rule shall specify the design, size and graphics of the
3-1 required sign. The sign must <have dimensions of at least 24
3-2 inches on each side and MUST> contain the following language:
3-3 DANGER: ULTRAVIOLET RADIATION
3-4 1. Follow the manufacturer's instructions for use of this
3-5 device.
3-6 2. Avoid too frequent or lengthy exposure. As with natural
3-7 sunlight, exposure can cause serious eye and skin injuries and
3-8 allergic reactions. Repeated exposure may cause skin cancer.
3-9 3. Wear protective eyewear. Failure to use protective
3-10 eyewear may result in severe burns or permanent damage to the eyes.
3-11 4. Do not sunbathe before or after exposure to ultraviolet
3-12 radiation from sunlamps.
3-13 5. Medications or cosmetics may increase your sensitivity to
3-14 ultraviolet radiation. Consult a physician before using a sunlamp
3-15 if you are using medication, have a history of skin problems, or
3-16 believe you are especially sensitive to sunlight. Pregnant women
3-17 or women using oral contraceptives who use this product may develop
3-18 discolored skin.
3-19 IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO <WILL NOT> TAN
3-20 FROM USE OF THIS DEVICE.
3-21 SECTION 3. Section 145.007, Health and Safety Code, is
3-22 amended to read as follows:
3-23 Sec. 145.007. PROHIBITED CLAIMS ABOUT SAFETY. A tanning
3-24 facility shall <may> not claim or distribute promotional materials
3-25 that claim that using a tanning device is safe or free from risk or
4-1 will result in medical or health benefits.
4-2 SECTION 4. Section 145.008, Health and Safety Code, is
4-3 amended to amend Subsections (a) through (f), and amended to add
4-4 Subsections (g) and (h).
4-5 Sec. 145.008. OPERATIONAL REQUIREMENTS. (a) A tanning
4-6 facility shall have an operator or operators present during
4-7 operating hours. The operator must be sufficiently knowledgeable
4-8 in the correct operation of the tanning devices used at the
4-9 facility and must <that the operator may> inform and assist each
4-10 customer in the proper use of the tanning devices.
4-11 (b) Before each use of a tanning device, the operator shall
4-12 provide the customer with clean and properly sanitized protective
4-13 eyewear that protects the eyes from ultraviolet radiation and
4-14 allows adequate vision to maintain balance. The operator may not
4-15 allow a person to use a tanning device if that person does not use
4-16 <the> protective eyewear which meets the requirements of the United
4-17 States Federal Food and Drug Administration. The operator also
4-18 shall show each customer how to use suitable physical aids, such as
4-19 handrails and markings on the floor, to maintain proper exposure
4-20 distance as recommended by the manufacturer of the tanning device.
4-21 (c) The tanning facility shall clean and properly sanitize
4-22 the body contact surfaces of a tanning device after each use of the
4-23 tanning device.
4-24 (d) <(c)> The tanning facility shall use a timer with an
4-25 accuracy of at least plus or minus 10 percent of the maximum timer
5-1 <any selected time> interval of the tanning device. The facility
5-2 shall limit the exposure time of a customer on a tanning device to
5-3 the maximum exposure time recommended by the manufacturer. The
5-4 facility shall control the <interior> temperature of a tanning
5-5 device and the surrounding area so that it may not exceed 100
5-6 degrees Fahrenheit.
5-7 (e) <(d)> Before <Either each time> a customer who is 18
5-8 years of age or older uses a tanning facility device for the first
5-9 time and <or> each time a person executes or renews a contract to
5-10 use a tanning facility device, the person must sign a written, and
5-11 dated statement acknowledging that the person has read and
5-12 understood the required warnings <before using the device> and
5-13 agrees to use <the> protective eyewear <that the tanning facility
5-14 provides>.
5-15 (f) <(e)> Before any person who is at least 14 years of age
5-16 but younger than 18 years of age uses a tanning facility device for
5-17 the first time, the person must give the tanning facility a written
5-18 "consent to use" statement signed and dated by the person's parent
5-19 or legal guardian stating that the parent or legal guardian has
5-20 read and understood the warnings given by the tanning facility,
5-21 consents to the minor's use of a tanning device, and agrees that
5-22 the minor will use <the> protective eyewear <that the tanning
5-23 facility provides>. A person younger than 14 years of age must
5-24 give the tanning facility a written "consent to use" statement
5-25 signed and dated by the person's parent or legal guardian <be
6-1 accompanied by a> The parent or legal guardian <when> must remain
6-2 at the tanning facility while a person younger than 14 years of age
6-3 is using a tanning device.
6-4 (g) When a tanning device is being used by an individual no
6-5 other person shall be allowed to remain in the tanning device area.
6-6 (h) Individual records for each customer using a tanning
6-7 device shall be maintained at the tanning facility for at least
6-8 three years from the date of the customer's last use of a tanning
6-9 device. These individual records must include the date and time of
6-10 day of each use of a tanning device, the length of time the tanning
6-11 device was used in minutes, any injuries or illnesses resulting
6-12 from the use of a tanning device, and any written or "consent to
6-13 use" statement required by subsection (e) and (f) of this section.
6-14 SECTION 5. Chapter 142, Health and Safety Code, is amended
6-15 to add Section 145.0081 to read as follows:
6-16 Sec. 145.0081. CHANGE OF LOCATION OR PLACE OF BUSINESS.
6-17 (a) Not fewer than 30 days in advance of the change, the licensee
6-18 shall notify the commissioner or the commissioner's designee
6-19 writing of the licensee's intent to change the location of a
6-20 licensed place of business. The notice shall include the address
6-21 of the new location, and the name and residence address of the
6-22 individual in charge of the business at the new location. Not more
6-23 than 10 days after the completion of the change of location, the
6-24 licensee shall notify the commissioner of the commissioner's
6-25 designee in writing to verify the change of location, the address
7-1 of the new location, and the name and residence address of the
7-2 individual in charge of the business at the new address. Notice
7-3 will be deemed adequate if the licensee provides the intent and
7-4 verification notices to the commissioner or the commissioner's
7-5 designee by certified mail, return receipt requested, mailed to the
7-6 central office of the department.
7-7 SECTION 6. Subsections 145.009 (a) - (d), and (e), Health
7-8 and Safety Code, are amended to read as follows:
7-9 Sec. 145.009. LICENSES <Permits>. (a) A person shall <may>
7-10 not operate a tanning facility unless the person holds a license
7-11 <permit> issued by the department to operate the facility. A
7-12 separate license is required for each tanning facility.
7-13 (b) The license <permit> shall be displayed in an open
7-14 public area of the tanning facility.
7-15 (c) The board annually shall renew licenses <permits> after
7-16 application for renewal is made on forms provided by the department
7-17 for this purpose and after receipt of renewal fees.
7-18 (d) The department by rule may adopt a system under which
7-19 licenses <permits> expire on various dates during the year. As
7-20 part of this system the license fees and annual renewal fees may be
7-21 prorated on a monthly basis to reflect the actual number of months
7-22 the license <permit> is valid.
7-23 (e) The department may revoke, <cancel>, suspend, suspend on
7-24 an emergency basis, or probate by a commissioner's emergency order,
7-25 a license <permit> to operate a tanning facility for:
8-1 (1) a failure to pay a license <permit> fee or an
8-2 annual renewal fee for a permit;
8-3 (2) an applicant's acquisition or attempted
8-4 acquisition of a license <permit> by fraud or deception;
8-5 (3) a violation of this chapter; <or>
8-6 (4) a violation of a rule of the department adopted
8-7 under this chapter;<.> or
8-8 (5) a violation of an order issued under this chapter.
8-9 SECTION 7. Section 145.010, Health and Safety Code, is
8-10 amended to read as follows:
8-11 Sec. 145.010. FEES. (a) The board shall collect fees for:
8-12 (1) a license that is issued or renewed; and
8-13 (2) a license that is amended, including notification
8-14 of a change of location of a licensed place of business under Sec.
8-15 431.0081 of this chapter, a change of name of an association or
8-16 corporation, or a change in the ownership of the licensee.
8-17 (3) an inspection performed to enforce this subchapter
8-18 and rules adopted under this subchapter.
8-19 (b) The board may charge annual fees.
8-20 (c) The board by rule shall set fees in amounts that allow
8-21 the department to recover at least 50 percent of the annual
8-22 expenditures of state funds by the department in:
8-23 (1) reviewing an acting on a license;
8-24 (2) amending and renewing a license;
8-25 (3) inspecting a licensed facility; and
9-1 (4) implementing and enforcing this subchapter,
9-2 including a rule or order adopted or a license issued under this
9-3 subchapter.
9-4 (d) The department shall use not less than one-half of
9-5 license fees collected for inspecting a licensed facility or
9-6 enforcing this subchapter, and the remainder for the administration
9-7 of this subchapter.
9-8 (e) All license fees received by the department under this
9-9 subchapter shall be deposited in the state treasury to the credit
9-10 of the food and drug registration fee fund and may be appropriated
9-11 to the department for the administration and enforcement of this
9-12 chapter. <The department shall set and collect a permit fee of $50
9-13 and an annual permit renewal fee of $35.>
9-14 SECTION 8. Chapter 145, Health and Safety Code, is amended
9-15 to amend Sections 145.012 and 145.013, and by adding Sections
9-16 145.014 through 145.018 to read as follows:
9-17 Sec. 145.012. EMERGENCY ORDER. (a) The commissioner or a
9-18 person designated by the commissioner may issue an emergency order,
9-19 either mandatory or prohibitory in nature, in relation to the
9-20 operation of a tanning facility in the department's jurisdiction if
9-21 the commissioner or the person designated by the commissioner
9-22 determines that:
9-23 (1) operation of the tanning facility creates or poses
9-24 an immediate and serious threat to human life or health; and
9-25 (2) other procedures available to the department to
10-1 remedy or prevent the occurrence of the situation will result in
10-2 unreasonable delay.
10-3 (b) The commissioner or a person designated by the
10-4 commissioner may issue the emergency order without notice and
10-5 hearing if the commissioner or a person designated by the
10-6 commissioner determines this is practicable under the
10-7 circumstances.
10-8 (c) If an emergency order is issued without a hearing, the
10-9 department shall determine a time and place for a hearing at which
10-10 the emergency order is affirmed, modified, or set aside. The
10-11 hearing shall be held under departmental rules. <INJUNCTION.>
10-12 <(a) If the commissioner, an authorized agent, or a health
10-13 authority finds that a person has violated or is threatening to
10-14 violate this chapter and that the violation or threat of violation
10-15 creates an immediate threat to the health and safety of the public,
10-16 the commissioner, authorized agent, or health authority may
10-17 petition the district court for a temporary restraining order to
10-18 restrain the violation or threat of violation.>
10-19 <(b) If a person has violated or is violating or threatening
10-20 to violate this chapter the commissioner, an authorized agent, or a
10-21 health authority may petition the district court for an injunction
10-22 to prohibit the person from continuing the violation or threat of
10-23 violation.>
10-24 <(c) On application for injunctive relief and a finding that
10-25 a person is violating or threatening to violate this chapter, the
11-1 district court shall grant any injunctive relief warranted by the
11-2 facts.>
11-3 <(d) Venue for a suit brought under this section is in the
11-4 county in which the violation or the threat of violation is alleged
11-5 to have occurred or in Travis County.>
11-6 Sec. 145.013. CIVIL PENALTY; INJUNCTION. (a) If it appears
11-7 that a person has violated, is violating, or is threatening to
11-8 violate this Act, or any rule adopted or order issued under this
11-9 Act, the commissioner may request the attorney general of this
11-10 state or district, county, or city attorney of the city or county
11-11 in which the violation has occurred, is occurring, or may occur to
11-12 institute a civil suit for:
11-13 (1) an order enjoining the violation or an order
11-14 directing compliance;
11-15 (2) a permanent or temporary injunction, restraining
11-16 order, or other appropriate order if the department shows that the
11-17 person has engaged in, is engaged in or is about to engage in any
11-18 violation;
11-19 (3) the assessment and recovery of a civil penalty; or
11-20 (4) both the injunctive relief and civil penalty.
11-21 (b) The penalty may be in a amount not to exceed $25,000 a
11-22 day for each violation. Each day of violation constitutes a
11-23 separate violation for purposes of penalty assessment.
11-24 (c) In determining the amount of the penalty, at a minimum,
11-25 the court shall consider:
12-1 (1) the person's history of previous violations;
12-2 (2) the seriousness of the violation;
12-3 (3) the hazard to the health and safety of the public;
12-4 (4) the demonstrated good faith of the person charged;
12-5 and
12-6 (5) such other matters as justice may require.
12-7 (d) Venue for a suit brought under this section is the city
12-8 or county in which the violation occurred or in Travis County.
12-9 (e) Any civil penalty recovered in a suit instituted by a
12-10 local government under this Act shall be paid to that local
12-11 government.
12-12 (f) The commissioner and the attorney general may each
12-13 recover reasonable expenses incurred in obtaining injunctive relief
12-14 or civil penalties or both under this section, including
12-15 investigative costs, court costs, reasonable attorney fees, witness
12-16 fees, and deposition expenses. The expenses recovered by the
12-17 commissioner are hereby appropriated to the department for the
12-18 administration and enforcement of this chapter. The expenses
12-19 recovered by the attorney general are hereby appropriated to the
12-20 attorney general.
12-21 Sec. 145.014. ADMINISTRATIVE PENALTY. (a) The commissioner
12-22 may assess an administrative penalty against a person who violates
12-23 this Chapter, a rule adopted, an order issued under this chapter,
12-24 or a permit condition thereof.
12-25 (b) In determining the amount of the penalty, the
13-1 commissioner shall consider:
13-2 (1) the person's previous violations;
13-3 (2) the seriousness of the violations;
13-4 (3) the hazard to the health and safety of the public;
13-5 (4) the person's demonstrated good faith; and
13-6 (5) other matters as justice may require.
13-7 (c) The penalty may not exceed $25,000 a day for each
13-8 violation.
13-9 (d) Each day of a continuing violation constitutes a
13-10 separate violation.
13-11 Sec. 145.015. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
13-12 (a) The commissioner may assess an administrative penalty only
13-13 after a person charged with a violation is given an opportunity for
13-14 a hearing.
13-15 (b) If a hearing is held, the commissioner shall make
13-16 findings of fact and shall issue a written decision regarding the
13-17 violation and the penalty.
13-18 (c) If the person charged with the violation does not
13-19 request a hearing, the commissioner may assess a penalty after
13-20 determining that a violation has occurred and the amount of the
13-21 penalty.
13-22 (d) The commissioner shall issue an order requiring a person
13-23 to pay a penalty assessed under this section.
13-24 (e) The commissioner may consolidate a hearing held under
13-25 this section with another proceeding.
14-1 Sec. 145.016. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
14-2 later than the 30th day after the date an order is issued under
14-3 Section 145.015, the commissioner shall notify the person against
14-4 whom the penalty is assessed of the order.
14-5 (b) Not later than the 30th day after the date notice of the
14-6 order is given to the person, the person shall:
14-7 (1) pay the penalty in full; or
14-8 (2) seek judicial review of the penalty or the
14-9 findings of the commissioner.
14-10 (c) If the person seeks judicial review, the person shall:
14-11 (1) send the amount of the penalty to the commissioner
14-12 for placement in an escrow account; or
14-13 (2) post with the commissioner a bond for the amount
14-14 of the penalty.
14-15 (d) A bond posted under this section must be in a form
14-16 approved by the commissioner and must be effective until judicial
14-17 review of the order or decision is final.
14-18 (e) A person who does not send the money to the commissioner
14-19 or post the bond within the period described by Subsection (b)
14-20 waives all rights to contest the violation or the amount of the
14-21 penalty.
14-22 (f) The attorney general, at the request of the
14-23 commissioner, may bring a civil action to recover an administrative
14-24 penalty assessed under this subchapter.
14-25 Sec. 145.017. REFUND OF ADMINISTRATIVE PENALTY. Not later
15-1 than the 30th day after the date of a judicial determination that
15-2 an administrative penalty against a person should be reduced or not
15-3 assessed, the commissioner shall:
15-4 (1) remit to the person the appropriate amount of any
15-5 penalty payment plus accrued interest; or
15-6 (2) execute a release of the bond if the person has
15-7 posted a bond.
15-8 Sec. 145.018. CRIMINAL PENALTY. (a) A person, other than a
15-9 customer, commits an offense if the person <knowingly or
15-10 recklessly> violates this chapter or a rule adopted under this
15-11 chapter.
15-12 (b) An offense under this chapter is a Class A <C>
15-13 misdemeanor.
15-14 SECTION 9. Fees collected under Sec. 145.009 of this chapter
15-15 and deposited in the general revenue fund to the credit of the food
15-16 and drug registration fee fund are hereby appropriated to the
15-17 department for the administration and enforcement of this Chapter
15-18 145, Health and Safety Code.
15-19 SECTION 10. EFFECTIVE DATE. This Act takes effect September
15-20 1, 1993.
15-21 SECTION 11. The importance of this legislation and the
15-22 crowded condition of the calendars in both houses create an
15-23 emergency and an imperative public necessity that the
15-24 constitutional rule requiring bills to be read on three several
15-25 days in each house be suspended, and this rule is hereby suspended,
16-1 and that this Act take effect and be in force according to its
16-2 terms, and it is so enacted.