BILL ANALYSIS C.S.H.B. 2027 By: Yarbrough (Sponsor) Health and Human Services 5-11-95 Senate Committee Report (Substituted) BACKGROUND Tanning facilities are regulated under the Tanning Facility Regulation Act through the Texas Department of Health (TDH). TDH experiences continued noncompliance with these regulations. In addition, due to the minimal regulations currently specified by the Act, problems have arisen with establishments that call themselves tanning facilities but do not have operational tanning beds and use the facilities for other purposes. PURPOSE As proposed, C.S.H.B. 2027 establishes licensing laws for tanning facilities and authorizes the Texas Board of Health to set and collect fees necessary to fund monitoring and inspection of the facilities; provides penalties. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the Texas Board of Health under SECTION 3 (Sections 145.006(a) and (b), Health and Safety Code), SECTION 5 (Section 145.007(h), Health and Safety Code), and SECTION 8 (Section 145.010(c), Health and Safety Code); and to the Texas Department of Health under SECTION 6 (Section 145.009(d), Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 145.002, Health and Safety Code, to define "operator." Redefines "health authority," "tanning device," and "tanning facility." SECTION 2. Amends Section 145.004, Health and Safety Code, as follows: Sec. 145.004. New heading: COMPLIANCE WITH LAW. (a) Requires a tanning device used by a tanning facility to comply with all applicable state laws and regulations. (b) Authorizes the Texas Department of Health (TDH) to enforce Chapter 431 against a person who adulterates or misbrands a tanning device. Authorizes TDH to investigate a person accused of adulterating or misbranding a tanning device. Describes an adulterated or misbranded tanning device. SECTION 3. Amends Section 145.006, Health and Safety Code, as follows: (a) Requires the Texas Board of Health (board), by rule, to specify the size, design, and graphic design of the warning sign that a tanning facility is required to post. Requires the sign to be at least 11 inches by 17 inches and contain wording that includes IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP. (b) Requires the board, by rule, to specify the size, design, and graphic design of the warning sign that a tanning facility operator is required to post. Requires the sign to be at least 11 inches by 17 inches and contain wording that includes IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP. (c) Requires TDH to include with a license application and an application for renewal of a license a description of the design standards required for signs under this section. SECTION 4. Amends Section 145.007, Health and Safety Code, to prohibit a tanning facility operator from claiming that using a tanning device will result in medical or health benefits. SECTION 5. Amends Section 145.008, Health and Safety Code, as follows: (a) Requires a tanning facility operator, among other actions, to instruct each customer in the proper use of the tanning devices, complete and maintain records required by this chapter, and explain or otherwise inform each customer initially using the tanning facility of certain information. (b) Requires the operator, before each use of a tanning device, to provide with each device clean, sanitized eyewear that protects the eyes from ultraviolet radiation and allows adequate vision to maintain balance. Requires the protective eyewear to be located in the immediate area of each tanning device and to be provided without charge to each tanning device user. Prohibits the operator from allowing a person to use a tanning device if that person does not use protective eyewear that meets the requirements of the U.S. Food and Drug Administration. (c) Requires the tanning facility operator to clean and properly sanitize the body contact surfaces of a tanning device after each use of the tanning device. (d) Redesignates existing Subsection (c). Requires the tanning facility to use a timer with an accuracy of at least plus or minus 10 percent of the maximum timer interval of the tanning device. Requires the operator, rather than the facility, to limit the exposure time of a customer on a tanning device. Requires a timer to be located so that a customer cannot set or reset the customer's exposure time. Requires the operator, rather than the facility, to control the temperature of the customer contact surfaces of a tanning device and the surrounding area. (e) Requires a person, before a customer who is 18 years of age or older uses a tanning facility device for the first time and each time a person executes or renews a contract to use a tanning facility device, to sign a statement that the person has read and understood the required warnings and agrees to use protective eyewear. (f) Redesignates existing Subsection (e). Requires the person, before any person younger than 18 years of age uses a tanning facility device for the first time, to give the operator a written informed consent statement signed and dated by the person's parent or legal guardian. Requires a person younger than 14 years of age to be accompanied by a parent or legal guardian who must remain at the tanning facility while the person younger than 14 years of age is using a tanning device. Makes a conforming change. (g) Prohibits another person, when a person is using a tanning device, from being allowed in the area of the tanning device. (h) Requires a record of each person using a tanning device to be maintained at the tanning facility at least until the third anniversary of the date of the customer's last use of a tanning device. Requires the board, by rule, to prescribe the form and content of the records, and sets forth certain information to be included in the record. SECTION 6. Amends Section 145.009, Health and Safety Code, as follows: Sec. 145.009. New heading: LICENSES. (a) Prohibits a person from operating a tanning facility unless the person holds a license, rather than a permit, issued by TDH to operate the facility. Makes a license valid until the first anniversary of the date the license was issued, unless revoked or suspended. Requires a separate license for each tanning facility. (b)-(c) Make conforming changes. (d) Authorizes the license fees to be prorated on a monthly basis. Makes conforming changes. (e) Authorizes TDH to revoke, suspend on an emergency basis, or probate by an emergency order of the commissioner of health (commissioner) or a designee a license to operate a tanning facility for certain violations including a violation of an order issued under this chapter. Makes conforming changes. (f) Sets forth circumstances under which a license issued under this chapter shall be returned to TDH. SECTION 7. Amends Section 145.010, Health and Safety Code, as follows: (a) Requires the board to collect a fee, except as provided by Subsection (b)(1), for a license issued or renewed or a license that is modified. (b) Authorizes the board to charge prorated or annual fees. (c) Requires the board, by rule, to set the fees in amounts that allow TDH to recover not less than 50 percent of the costs to TDH in reviewing and acting on a license application, modifying or renewing a license, inspecting a licensed facility, and implementing and enforcing this chapter or rules relating to this chapter. (d) Requires TDH to use not less than 50 percent of the license fees collected for inspecting a licensed facility or enforcement of this chapter or a rule relating to this chapter. Requires the remainder of the license fees collected to be used to administer this chapter. (e) Requires a license fee received by TDH to be deposited to the credit of the food and drug registration fund in the state treasury. Declares that the fees are dedicated to TDH for the administration and enforcement of this chapter. SECTION 8. Amends Section 145.011, Health and Safety Code, by adding Subsection (c), to require a person required to maintain records under this chapter or a person in charge of the custody of those records, at the request of an authorized agent or health authority, to permit the authorized agent or health authority access to the records at reasonable times. SECTION 9. Amends Section 145.012, Health and Safety Code, as follows: Sec. 145.012. New heading: EMERGENCY ORDER. Authorizes the commissioner or a designee to issue an emergency order relating to the operation of a tanning facility in TDH's jurisdiction if the commissioner or designee determines that operation of the tanning facility creates or poses an immediate threat to human life or health, and other procedure available to TDH to remedy or prevent the threat will result in unreasonable delay. (b) Authorizes the commissioner or a designee to issue an emergency order without notice or a hearing if the commissioner or designee determines that notice or hearing is not practical under the circumstances. (c) Requires TDH, if an emergency order is issued without a hearing, to determine a time and place for a hearing, to be held under TDH rules, at which the emergency order is affirmed, modified, or set aside. Deletes existing Subsections (a)-(d) regarding a violation of this chapter. SECTION 10. Amends Chapter 145, Health and Safety Code, by adding Sections 145.0121-145.0122, as follows: Sec. 145.0121. CIVIL PENALTY; INJUNCTION. (a) Authorizes the commissioner, if it appears that a person is in violation of this chapter, to request the attorney general or the county or district attorney or the municipal attorney of a municipality in the jurisdiction where the violation is alleged to have occurred or may occur to institute certain civil suits. (b) Prohibits a civil penalty from exceeding $25,000 a day for each violation. Provides that each day the violation occurs constitutes a separate violation. (c) Requires the court hearing the matter, in determining the amount of the civil penalty, to make certain considerations. (d) Declares that venue for a suit brought under this section is the municipality or county in which the violation occurred or in Travis County. (e) Requires a civil penalty recovered in a suit instituted by a local government under this chapter to be paid to the local government. (f) Authorizes the commissioner or attorney general to each recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section. Requires the expenses recovered by the commissioner under this section to be used for the administration and enforcement of this chapter, and requires the expenses recovered by the attorney general to be used by the attorney general. Sec. 145.0122. ADMINISTRATIVE PENALTY. (a) Authorizes the board or a designee to impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter. (b) Authorizes the penalty to be in an amount not to exceed $25,000. Provides that each day a violation continues or occurs is a separate violation. (c) Sets forth the factors on which the amount of the penalty shall be based. (d) Authorizes the commissioner or a designee, if the commissioner or designee determines a violation has occurred, to issue to the board or board's designee a report stating the facts on which the determination is based and the recommendation on a penalty. (e) Requires the commissioner or a designee to give written notice of the report to the person within 14 days after the date the report is issued. Authorizes the report to be given by certified mail, and sets forth requirements for the contents of the notice. (f) Authorizes the person, within 20 days after the date the person receives the notice, to accept the determination and recommendation or make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both. (g) Requires the board, by order, to approve the determination and impose the recommended penalty if the person accepts the determination and recommendation. (h) Requires the commissioner or a designee to set a hearing and give notice of the hearing to the person, if the person requests a hearing or fails to respond timely to the notice. Sets forth requirements for a hearing. (i) Requires the notice of the board's order under Chapter 2001, Government Code, to include a statement of the person's right to judicial review of the order. (j) Requires the person, within 30 days after the date the board's order becomes final, to pay the amount of the penalty, or, with or without paying the penalty, to file a petition for judicial review. (k) Authorizes a person who acts under Subsection (j)(3), within the 30-day period, to stay enforcement of the penalty or request the court to stay enforcement of the penalty. (l) Authorizes the commissioner, if the commissioner receives a copy of an affidavit under Subsection (k)(2), to file with the court a contest to the affidavit by a certain date. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable, and to stay enforcement of the penalty in finding that the alleged facts are true. Places the burden of proving financial inability to pay the penalty or give a supersedeas bond on the person who files an affidavit. (m) Authorizes the commissioner, if the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, to refer the matter to the attorney general for collection of the penalty. (n) Declares that judicial review of the board order is instituted by filing a petition under Chapter 2001G, Government Code, and is under the substantial evidence rule. (o) Authorizes the court, if it sustains the occurrence of the violation, to uphold or reduce the amount of the penalty. Requires the court, if it does not sustain the occurrence of the violation, to order that no penalty is owed. (p) Sets forth guidelines for the court when the judgment of the court becomes final. (q) Requires a penalty collected under this subsection to be remitted to the comptroller for deposit in the general revenue fund. (r) Subjects all proceedings under this section to Chapter 2001, Government Code. Sec. 145.0123. RESTRICTIONS ON ADULT TANNING FACILITIES. (a) Subjects an adult tanning facility to the requirements of this chapter and any other provision of law regulating the operation of an adult tanning facility. (b) Defines "adult tanning facility." SECTION 11. Amends Section 145.013, Health and Safety Code, to provide that a person, other than a customer, commits a Class A, rather than a Class C, misdemeanor, if the person violates, rather than knowingly or recklessly violates, this chapter. SECTION 12. Effective date: September 1, 1995. SECTION 13. Makes application of this Act prospective. SECTION 14. Emergency clause. Effective date: 90 days after adjournment.