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.