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.