1-1  By:  Nelson                                           S.B. No. 1137
    1-2        (In the Senate - Filed March 12, 1993; March 15, 1993, read
    1-3  first time and referred to Committee on Economic Development;
    1-4  April 22, 1993, reported favorably by the following vote:  Yeas 10,
    1-5  Nays 0; April 22, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Parker             x                               
    1-9        Lucio              x                               
   1-10        Ellis              x                               
   1-11        Haley              x                               
   1-12        Harris of Dallas   x                               
   1-13        Harris of Tarrant  x                               
   1-14        Leedom             x                               
   1-15        Madla              x                               
   1-16        Rosson             x                               
   1-17        Shapiro                                       x    
   1-18        Wentworth          x                               
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to regulation of tanning facilities; providing civil,
   1-22  administrative, and criminal penalties; appropriating certain fees
   1-23  and expenses.
   1-24        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-25        SECTION 1.  Subdivisions (3), (4), (5), and (6), Section
   1-26  145.002, Health and Safety Code, are amended to read as follows:
   1-27              (3)  "Operator" means an individual at the tanning
   1-28  facility who has the responsibility of assisting and instructing
   1-29  the public in the correct operation of the tanning facility.
   1-30              (4)  "Person" means an individual, partnership,
   1-31  corporation, or association.
   1-32              (5) <(4)>  "Phototherapy device" means a piece of
   1-33  equipment that emits ultraviolet radiation and is used by a health
   1-34  care professional in the treatment of disease.
   1-35              (6) <(5)>  "Tanning device" means any equipment,
   1-36  including a sunlamp, tanning booth, and tanning bed, that emits
   1-37  electromagnetic radiation with wavelengths in the air between 200
   1-38  and 400 nanometers and is used for the tanning of human skin.  The
   1-39  term includes any accompanying equipment, including protective
   1-40  eyewear, timers, and handrails.
   1-41              (7) <(6)>  "Tanning facility" means a business that
   1-42  provides persons access to or use of tanning devices.
   1-43        SECTION 2.  Section 145.006, Health and Safety Code, is
   1-44  amended to read as follows:
   1-45        Sec. 145.006.  WARNING SIGNS.  (a)  A tanning facility shall
   1-46  post a warning sign in a conspicuous location where it is readily
   1-47  visible by persons entering the establishment.  The board by rule
   1-48  shall specify the design, size, and graphics of the required sign.
   1-49  The sign must <have dimensions of at least 36 inches on each side
   1-50  and must> contain the following wording:
   1-51                    DANGER:  ULTRAVIOLET RADIATION
   1-52  Repeated exposure to ultraviolet radiation may cause chronic sun
   1-53  damage characterized by wrinkling, dryness, fragility, <and>
   1-54  bruising of the skin, and skin cancer.  Failure to use protective
   1-55  eyewear may result in severe burns or permanent injury to the eyes.
   1-56  Medications or cosmetics may increase your sensitivity to
   1-57  ultraviolet radiation.  Consult a physician before using a sunlamp
   1-58  if you are using medications, have a history of skin problems, or
   1-59  believe you are especially sensitive to sunlight.  Pregnant women
   1-60  or women taking oral contraceptives who use this product may
   1-61  develop discolored skin.
   1-62           IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO
   1-63      <WILL NOT> TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.
   1-64        (b)  A tanning facility shall also post a warning sign at
   1-65  each tanning device in a conspicuous location that is readily
   1-66  visible to a person about to use the device.  The board by rule
   1-67  shall specify the design, size, and graphics of the required sign.
   1-68  The sign must <have dimensions of at least 24 inches on each side
    2-1  and must> contain the following language:
    2-2                    DANGER:  ULTRAVIOLET RADIATION
    2-3        1.  Follow the manufacturer's instructions for use of this
    2-4  device.
    2-5        2.  Avoid too frequent or lengthy exposure.  As with natural
    2-6  sunlight, exposure can cause serious eye and skin injuries and
    2-7  allergic reactions.  Repeated exposure may cause skin cancer.
    2-8        3.  Wear protective eyewear.  Failure to use protective
    2-9  eyewear may result in severe burns or permanent damage to the eyes.
   2-10        4.  Do not sunbathe before or after exposure to ultraviolet
   2-11  radiation from sunlamps.
   2-12        5.  Medications or cosmetics may increase your sensitivity to
   2-13  ultraviolet radiation.  Consult a physician before using a sunlamp
   2-14  if you are using medication, have a history of skin problems, or
   2-15  believe you are especially sensitive to sunlight.  Pregnant women
   2-16  or women using oral contraceptives who use this product may develop
   2-17  discolored skin.
   2-18           IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO
   2-19                <WILL NOT> TAN FROM USE OF THIS DEVICE.
   2-20        SECTION 3.  Section 145.007, Health and Safety Code, is
   2-21  amended to read as follows:
   2-22        Sec. 145.007.  PROHIBITED CLAIMS ABOUT SAFETY.  A tanning
   2-23  facility shall <may> not claim or distribute promotional materials
   2-24  that claim that using a tanning device is safe or free from risk or
   2-25  will result in medical or health benefits.
   2-26        SECTION 4.  Section 145.008, Health and Safety Code, is
   2-27  amended to read as follows:
   2-28        Sec. 145.008.  OPERATIONAL REQUIREMENTS.  (a)  A tanning
   2-29  facility shall have an operator or operators present during
   2-30  operating hours.  The operator must be sufficiently knowledgeable
   2-31  in the correct operation of the tanning devices used at the
   2-32  facility and must <that the operator may> inform and assist each
   2-33  customer in the proper use of the tanning devices.
   2-34        (b)  Before each use of a tanning device, the operator shall
   2-35  provide the customer with clean and properly sanitized protective
   2-36  eyewear that protects the eyes from ultraviolet radiation and
   2-37  allows adequate vision to maintain balance.  The operator may not
   2-38  allow a person to use a tanning device if that person does not use
   2-39  <the> protective eyewear which meets the requirements of the United
   2-40  States Food and Drug Administration.  The operator also shall show
   2-41  each customer how to use suitable physical aids, such as handrails
   2-42  and markings on the floor, to maintain proper exposure distance as
   2-43  recommended by the manufacturer of the tanning device.
   2-44        (c)  The tanning facility shall clean and properly sanitize
   2-45  the body contact surfaces of a tanning device after each use of the
   2-46  tanning device.
   2-47        (d)  The tanning facility shall use a timer with an accuracy
   2-48  of at least plus or minus 10 percent of the maximum timer <any
   2-49  selected time> interval of the tanning device.  The facility shall
   2-50  limit the exposure time of a customer on a tanning device to the
   2-51  maximum exposure time recommended by the manufacturer.  The
   2-52  facility shall control the <interior> temperature of a tanning
   2-53  device and the surrounding area so that it may not exceed 100
   2-54  degrees Fahrenheit.
   2-55        (e)  Before <(d)  Either each time> a customer who is 18
   2-56  years of age or older uses a tanning facility device for the first
   2-57  time and <or> each time a person executes or renews a contract to
   2-58  use a tanning facility device, the person must sign a written and
   2-59  dated statement acknowledging that the person has read and
   2-60  understood the required warnings <before using the device> and
   2-61  agrees to use <the> protective eyewear <that the tanning facility
   2-62  provides>.
   2-63        (f) <(e)>  Before any person who is at least 14 years of age
   2-64  but younger than 18 years of age uses a tanning facility device for
   2-65  the first time, the person must give the tanning facility a written
   2-66  "consent to use" statement signed and dated by the person's parent
   2-67  or legal guardian stating that the parent or legal guardian has
   2-68  read and understood the warnings given by the tanning facility,
   2-69  consents to the minor's use of a tanning device, and agrees that
   2-70  the minor will use <the> protective eyewear <that the tanning
    3-1  facility provides>.  A person younger than 14 years of age must
    3-2  give the tanning facility a written "consent to use" statement
    3-3  signed and dated by the person's parent or legal guardian.  The <be
    3-4  accompanied by a> parent or legal guardian must remain at the
    3-5  tanning facility while a person younger than 14 years of age is
    3-6  <when> using a tanning device.
    3-7        (g)  When a tanning device is being used by an individual no
    3-8  other person shall be allowed to remain in the tanning device area.
    3-9        (h)  Individual records for each customer using a tanning
   3-10  device shall be maintained at the tanning facility for at least
   3-11  three years from the date of the customer's last use of a tanning
   3-12  device.  These individual records must include the date and time of
   3-13  day of each use of a tanning device, the length of time the tanning
   3-14  device was used in minutes, any injuries or illnesses resulting
   3-15  from the use of a tanning device, and any written or "consent to
   3-16  use" statement required by Subsections (e) and (f) of this section.
   3-17        SECTION 5.  Chapter 145, Health and Safety Code, is amended
   3-18  by adding Section 145.0081 to read as follows:
   3-19        Sec. 145.0081.  CHANGE OF LOCATION OR PLACE OF BUSINESS.  Not
   3-20  less than 30 days in advance of the change, the licensee shall
   3-21  notify the commissioner or the commissioner's designee in writing
   3-22  of the licensee's intent to change the location of a licensed place
   3-23  of business.  The notice shall include the address of the new
   3-24  location and the name and residence address of the individual in
   3-25  charge of the business at the new location.  Not more than 10 days
   3-26  after the completion of the change of location, the licensee shall
   3-27  notify the commissioner or the commissioner's designee in writing
   3-28  to verify the change of location, the address of the new location,
   3-29  and the name and residence address of the individual in charge of
   3-30  the business at the new address.  Notice will be deemed adequate if
   3-31  the licensee provides the intent and verification notices to the
   3-32  commissioner or the commissioner's designee by certified mail,
   3-33  return receipt requested, mailed to the central office of the
   3-34  department.
   3-35        SECTION 6.  Section 145.009, Health and Safety Code, is
   3-36  amended to read as follows:
   3-37        Sec. 145.009.  LICENSES <PERMITS>.  (a)  A person shall <may>
   3-38  not operate a tanning facility unless the person holds a license
   3-39  <permit> issued by the department to operate the facility.  A
   3-40  separate license is required for each tanning facility.
   3-41        (b)  The license <permit> shall be displayed in an open
   3-42  public area of the tanning facility.
   3-43        (c)  The board annually shall renew licenses <permits> after
   3-44  application for renewal is made on forms provided by the department
   3-45  for this purpose and after receipt of renewal fees.
   3-46        (d)  The department by rule may adopt a system under which
   3-47  licenses <permits> expire on various dates during the year.  As
   3-48  part of this system the license fees and annual renewal fees may be
   3-49  prorated on a monthly basis to reflect the actual number of months
   3-50  the license <permit> is valid.
   3-51        (e)  The department may revoke, <cancel,> suspend, suspend on
   3-52  an emergency basis, or probate by a commissioner's emergency order
   3-53  a license <permit> to operate a tanning facility for:
   3-54              (1)  a failure to pay a license <permit> fee or an
   3-55  annual renewal fee for a license <permit>;
   3-56              (2)  an applicant's acquisition or attempted
   3-57  acquisition of a license <permit> by fraud or deception;
   3-58              (3)  a violation of this chapter; <or>
   3-59              (4)  a violation of a rule of the department adopted
   3-60  under this chapter; or
   3-61              (5)  a violation of an order issued under this chapter.
   3-62        SECTION 7.  Section 145.010, Health and Safety Code, is
   3-63  amended to read as follows:
   3-64        Sec. 145.010.  FEES.  (a)  The board shall collect fees for:
   3-65              (1)  a license that is issued or renewed;
   3-66              (2)  a license that is amended, including notification
   3-67  of a change of location of a licensed place of business under
   3-68  Section 431.0081, a change of name of an association or
   3-69  corporation, or a change in the ownership of the licensee; and
   3-70              (3)  an inspection performed to enforce this subchapter
    4-1  and rules adopted under this subchapter.
    4-2        (b)  The board may charge annual fees.
    4-3        (c)  The board by rule shall set the fees in amounts that
    4-4  allow the department to recover at least 50 percent of the annual
    4-5  expenditures of state funds by the department for:
    4-6              (1)  reviewing and acting on a license;
    4-7              (2)  amending and renewing a license;
    4-8              (3)  inspecting a licensed facility; and
    4-9              (4)  implementing and enforcing this subchapter,
   4-10  including a rule or order adopted or a license issued under this
   4-11  subchapter.
   4-12        (d)  The department shall use not less than one-half of the
   4-13  license fees collected for inspecting licensed facilities or
   4-14  enforcing this subchapter and the remainder for the administration
   4-15  of this subchapter.
   4-16        (e)  All license fees received by the department under this
   4-17  subchapter shall be deposited in the state treasury to the credit
   4-18  of the food and drug registration fee fund and may be appropriated
   4-19  to the department for the administration and enforcement of this
   4-20  chapter.  <The department shall set and collect a permit fee of $50
   4-21  and an annual permit renewal fee of $35.>
   4-22        SECTION 8.  Chapter 145, Health and Safety Code, is amended
   4-23  by amending Sections 145.012 and 145.013 and adding Sections
   4-24  145.014 through 145.018 to read as follows:
   4-25        Sec. 145.012.  EMERGENCY ORDER.  (a)  The commissioner or a
   4-26  person designated by the commissioner may issue an emergency order,
   4-27  either mandatory or prohibitory in nature, in relation to the
   4-28  operation of a tanning facility in the department's jurisdiction if
   4-29  the commissioner or the person designated by the commissioner
   4-30  determines that:
   4-31              (1)  operation of the tanning facility creates or poses
   4-32  an immediate and serious threat to human life or health; and
   4-33              (2)  other procedures available to the department to
   4-34  remedy or prevent the occurrence of the situation will result in
   4-35  unreasonable delay.
   4-36        (b)  The commissioner or a person designated by the
   4-37  commissioner may issue the emergency order without notice and
   4-38  hearing if the commissioner or a person designated by the
   4-39  commissioner determines this is practicable under the
   4-40  circumstances.
   4-41        (c)  If an emergency order is issued without a hearing, the
   4-42  department shall determine a time and place for a hearing at which
   4-43  the emergency order may be affirmed, modified, or set aside.  The
   4-44  hearing shall be held under departmental rules.  <INJUNCTION.
   4-45  (a)  If the commissioner, an authorized agent, or a health
   4-46  authority finds that a person has violated or is violating or
   4-47  threatening to violate this chapter and that the violation or
   4-48  threat of violation creates an immediate threat to the health and
   4-49  safety of the public, the commissioner, authorized agent, or health
   4-50  authority may petition the district court for a temporary
   4-51  restraining order to restrain the violation or threat of violation.>
   4-52        <(b)  If a person has violated or is violating or threatening
   4-53  to violate this chapter the commissioner, an authorized agent, or a
   4-54  health authority may petition the district court for an injunction
   4-55  to prohibit the person from continuing the violation or threat of
   4-56  violation.>
   4-57        <(c)  On application for injunctive relief and a finding that
   4-58  a person is violating or threatening to violate this chapter, the
   4-59  district court shall grant any injunctive relief warranted by the
   4-60  facts.>
   4-61        <(d)  Venue for a suit brought under this section is in the
   4-62  county in which the violation or the threat of violation is alleged
   4-63  to have occurred or in Travis County.>
   4-64        Sec. 145.013.  CIVIL PENALTY; INJUNCTION.  (a)  If it appears
   4-65  that a person has violated, is violating, or is threatening to
   4-66  violate this Act or any rule adopted or order issued under this
   4-67  Act, the commissioner may request the attorney general of this
   4-68  state or the district, county, or city attorney of the city or
   4-69  county in which the violation has occurred, is occurring, or may
   4-70  occur to institute a civil suit for:
    5-1              (1)  an order enjoining the violation or an order
    5-2  directing compliance;
    5-3              (2)  a permanent or temporary injunction, restraining
    5-4  order, or other appropriate order if the department shows that the
    5-5  person has engaged in, is engaged in, or is about to engage in any
    5-6  violation;
    5-7              (3)  the assessment and recovery of a civil penalty; or
    5-8              (4)  both the injunctive relief and civil penalty.
    5-9        (b)  The penalty may be in a amount not to exceed $25,000 a
   5-10  day for each violation.  Each day of violation constitutes a
   5-11  separate violation for purposes of penalty assessment.
   5-12        (c)  In determining the amount of the penalty, at a minimum,
   5-13  the court shall consider:
   5-14              (1)  the person's history of previous violations;
   5-15              (2)  the seriousness of the violation;
   5-16              (3)  the hazard to the health and safety of the public;
   5-17              (4)  the demonstrated good faith of the person charged;
   5-18  and
   5-19              (5)  such other matters as justice may require.
   5-20        (d)  Venue for a suit brought under this section is in the
   5-21  city or county in which the violation occurred or in Travis County.
   5-22        (e)  Any civil penalty recovered in a suit instituted by a
   5-23  local government under this Act shall be paid to that local
   5-24  government.
   5-25        (f)  The commissioner and the attorney general may each
   5-26  recover reasonable expenses incurred in obtaining injunctive relief
   5-27  or civil penalties or both under this section, including
   5-28  investigative costs, court costs, reasonable attorney fees, witness
   5-29  fees, and deposition expenses.  The expenses recovered by the
   5-30  commissioner are hereby appropriated to the department for the
   5-31  administration and enforcement of this chapter.  The expenses
   5-32  recovered by the attorney general are hereby appropriated to the
   5-33  attorney general.
   5-34        Sec. 145.014.  ADMINISTRATIVE PENALTY.  (a)  The commissioner
   5-35  may assess an administrative penalty against a person who violates
   5-36  this chapter, a rule adopted or an order issued under this chapter,
   5-37  or a permit condition thereof.
   5-38        (b)  In determining the amount of the penalty, the
   5-39  commissioner shall consider:
   5-40              (1)  the person's previous violations;
   5-41              (2)  the seriousness of the violations;
   5-42              (3)  the hazard to the health and safety of the public;
   5-43              (4)  the person's demonstrated good faith; and
   5-44              (5)  other matters as justice may require.
   5-45        (c)  The penalty may not exceed $25,000 a day for each
   5-46  violation.
   5-47        (d)  Each day of a continuing violation constitutes a
   5-48  separate violation.
   5-49        Sec. 145.015.  ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
   5-50  (a)  The commissioner may assess an administrative penalty only
   5-51  after a person charged with a violation is given an opportunity for
   5-52  a hearing.
   5-53        (b)  If a hearing is held, the commissioner shall make
   5-54  findings of fact and shall issue a written decision regarding the
   5-55  violation and the penalty.
   5-56        (c)  If the person charged with the violation does not
   5-57  request a hearing, the commissioner may assess a penalty after
   5-58  determining that a violation has occurred and the amount of the
   5-59  penalty.
   5-60        (d)  The commissioner shall issue an order requiring a person
   5-61  to pay a penalty assessed under this section.
   5-62        (e)  The commissioner may consolidate a hearing held under
   5-63  this section with another proceeding.
   5-64        Sec. 145.016.  PAYMENT OF ADMINISTRATIVE PENALTY.  (a)  Not
   5-65  later than the 30th day after the date an order is issued under
   5-66  Section 145.015, the commissioner shall notify the person against
   5-67  whom the penalty is assessed of the order.
   5-68        (b)  Not later than the 30th day after the date notice of the
   5-69  order is given to the person, the person shall:
   5-70              (1)  pay the penalty in full; or
    6-1              (2)  seek judicial review of the penalty or the
    6-2  findings of the commissioner.
    6-3        (c)  If the person seeks judicial review, the person shall:
    6-4              (1)  send the amount of the penalty to the commissioner
    6-5  for placement in an escrow account; or
    6-6              (2)  post with the commissioner a bond for the amount
    6-7  of the penalty.
    6-8        (d)  A bond posted under this section must be in a form
    6-9  approved by the commissioner and must be effective until judicial
   6-10  review of the order or decision is final.
   6-11        (e)  A person who does not send the money to the commissioner
   6-12  or post the bond within the period described by Subsection (b)
   6-13  waives all rights to contest the violation or the amount of the
   6-14  penalty.
   6-15        (f)  The attorney general, at the request of the
   6-16  commissioner, may bring a civil action to recover an administrative
   6-17  penalty assessed under this subchapter.
   6-18        Sec. 145.017.  REFUND OF ADMINISTRATIVE PENALTY.  Not later
   6-19  than the 30th day after the date of a judicial determination that
   6-20  an administrative penalty against a person should be reduced or not
   6-21  assessed, the commissioner shall:
   6-22              (1)  remit to the person the appropriate amount of any
   6-23  penalty payment plus accrued interest; or
   6-24              (2)  execute a release of the bond if the person has
   6-25  posted a bond.
   6-26        Sec. 145.018.  CRIMINAL PENALTY.  (a)  A person, other than a
   6-27  customer, commits an offense if the person <knowingly or
   6-28  recklessly> violates this chapter or a rule adopted under this
   6-29  chapter.
   6-30        (b)  An offense under this chapter is a Class A <C>
   6-31  misdemeanor.
   6-32        SECTION 9.  Fees collected under Section 145.009, Health and
   6-33  Safety Code, and deposited in the general revenue fund to the
   6-34  credit of the food and drug registration fee fund are hereby
   6-35  appropriated to the Texas Department of Health for the
   6-36  administration and enforcement of Chapter 145, Health and Safety
   6-37  Code.
   6-38        SECTION 10.  This Act takes effect September 1, 1993.
   6-39        SECTION 11.  The importance of this legislation and the
   6-40  crowded condition of the calendars in both houses create an
   6-41  emergency and an imperative public necessity that the
   6-42  constitutional rule requiring bills to be read on three several
   6-43  days in each house be suspended, and this rule is hereby suspended,
   6-44  and that this Act take effect and be in force according to its
   6-45  terms, and it is so enacted.
   6-46                               * * * * *
   6-47                                                         Austin,
   6-48  Texas
   6-49                                                         April 22, 1993
   6-50  Hon. Bob Bullock
   6-51  President of the Senate
   6-52  Sir:
   6-53  We, your Committee on Economic Development to which was referred
   6-54  S.B. No. 1137, have had the same under consideration, and I am
   6-55  instructed to report it back to the Senate with the recommendation
   6-56  that it do pass and be printed.
   6-57                                                         Parker,
   6-58  Chairman
   6-59                               * * * * *
   6-60                               WITNESSES
   6-61                                                  FOR   AGAINST  ON
   6-62  ___________________________________________________________________
   6-63  Name:  James Britton                             x
   6-64  Representing:  Tanning
   6-65  City:  San Antonio
   6-66  -------------------------------------------------------------------
   6-67  Name:  Tom Brinck                                              x
   6-68  Representing:  Texas Dept. of Health
   6-69  City:  Austin
   6-70  -------------------------------------------------------------------
    7-1  Name:  Robert A. MacLean, M.D.                                 x
    7-2  Representing:  Texas Dept. of Health
    7-3  City:  Austin
    7-4  -------------------------------------------------------------------
    7-5  Name:  Alfred Gilchrist                          x
    7-6  Representing:  Texas Medical Association
    7-7  City:  Austin
    7-8  -------------------------------------------------------------------