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 -------------------------------------------------------------------