1-1  By:  Yarbrough (Senate Sponsor - Gallegos)            H.B. No. 2027
    1-2        (In the Senate - Received from the House April 28, 1995;
    1-3  May 1, 1995, read first time and referred to Committee on Health
    1-4  and Human Services; May 12, 1995, reported adversely, with
    1-5  favorable Committee Substitute by the following vote:  Yeas 7, Nays
    1-6  0; May 12, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR H.B. No. 2027                By:  Gallegos
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the regulation of tanning facilities; providing civil
   1-11  and administrative penalties.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Section 145.002, Health and Safety Code, is
   1-14  amended to read as follows:
   1-15        Sec. 145.002.  DEFINITIONS. In this chapter:
   1-16              (1)  "Authorized agent" means an employee of the
   1-17  department designated by the commissioner to enforce this chapter.
   1-18              (2)  "Health authority" has the meaning assigned by
   1-19  Section 121.021 <means a physician designated to administer state
   1-20  and local laws relating to public health>.
   1-21              (3)  "Operator" means an owner of a tanning facility or
   1-22  an agent of an owner of a tanning facility.
   1-23              (4) <(3)>  "Person" means an individual, partnership,
   1-24  corporation, or association.
   1-25              (5) <(4)>  "Phototherapy device" means a piece of
   1-26  equipment that emits ultraviolet radiation and is used by a health
   1-27  care professional in the treatment of disease.
   1-28              (6) <(5)>  "Tanning device" means a device under
   1-29  Section 431.002 and includes any equipment, including a sunlamp,
   1-30  tanning booth, and tanning bed, that emits electromagnetic
   1-31  radiation with wavelengths in the air between 200 and 400
   1-32  nanometers and is used for the tanning of human skin.  The term
   1-33  also includes any accompanying equipment, including protective
   1-34  eyewear, timers, and handrails.
   1-35              (7) <(6)>  "Tanning facility" means a business that
   1-36  provides persons access to or use of tanning devices.
   1-37        SECTION 2.  Section 145.004, Health and Safety Code, is
   1-38  amended to read as follows:
   1-39        Sec. 145.004.  COMPLIANCE WITH <FEDERAL> LAW.  (a)  A tanning
   1-40  device used by a tanning facility must comply with all applicable
   1-41  federal and state laws and regulations.
   1-42        (b)  The Texas Department of Health may enforce Chapter 431
   1-43  against a person who adulterates or misbrands a tanning device. The
   1-44  department may investigate a person accused of adulterating or
   1-45  misbranding a tanning device.  For the purposes of this subsection,
   1-46  a tanning device is adulterated or misbranded if the tanning device
   1-47  would be an adulterated or misbranded device under Section 431.111
   1-48  or 431.112.
   1-49        SECTION 3.  Section 145.006, Health and Safety Code, is
   1-50  amended to read as follows:
   1-51        Sec. 145.006.  WARNING SIGNS.  (a)  A tanning facility shall
   1-52  post a warning sign in a conspicuous location where it is readily
   1-53  visible by persons entering the establishment.  The board by rule
   1-54  shall specify the size, design, and graphic design of the sign.
   1-55  The sign must have dimensions of at least 11 inches by 17 <36>
   1-56  inches <on each side> and must contain the following wording:
   1-57                    DANGER:  ULTRAVIOLET RADIATION
   1-58        Repeated exposure to ultraviolet radiation may cause chronic
   1-59  sun damage characterized by wrinkling, dryness, fragility, <and>
   1-60  bruising of the skin, and skin cancer.
   1-61        Failure to use protective eyewear may result in severe burns
   1-62  or permanent injury to the eyes.
   1-63        Medications or cosmetics may increase your sensitivity to
   1-64  ultraviolet radiation.  Consult a physician before using a sunlamp
   1-65  if you are using medications, have a history of skin problems, or
   1-66  believe you are especially sensitive to sunlight.  Pregnant women
   1-67  or women taking oral contraceptives who use this product may
   1-68  develop discolored skin.
    2-1     IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO <WILL NOT>
    2-2            TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.
    2-3        (b)  A tanning facility operator shall also post a warning
    2-4  sign at each tanning device in a conspicuous location that is
    2-5  readily visible to a person about to use the device.  The board by
    2-6  rule shall specify the size, design, and graphic design of the
    2-7  sign.  The sign must have dimensions of at least 11 inches by 17
    2-8  <24> inches <on each side> and must contain the following wording
    2-9  <language>:
   2-10                    DANGER:  ULTRAVIOLET RADIATION
   2-11        1.  Follow the manufacturer's instructions for use of this
   2-12  device.
   2-13        2.  Avoid too frequent or lengthy exposure.  As with natural
   2-14  sunlight, exposure can cause serious eye and skin injuries and
   2-15  allergic reactions.  Repeated exposure may cause skin cancer.
   2-16        3.  Wear protective eyewear.  Failure to use protective
   2-17  eyewear may result in severe burns or permanent damage to the eyes.
   2-18        4.  Do not sunbathe before or after exposure to ultraviolet
   2-19  radiation from sunlamps.
   2-20        5.  Medications or cosmetics may increase your sensitivity to
   2-21  ultraviolet radiation.  Consult a physician before using a sunlamp
   2-22  if you are using medication, have a history of skin problems, or
   2-23  believe you are especially sensitive to sunlight.  Pregnant women
   2-24  or women using oral contraceptives who use this product may develop
   2-25  discolored skin.
   2-26     IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO <WILL NOT>
   2-27                     TAN FROM USE OF THIS DEVICE.
   2-28        (c)  The Texas Department of Health shall include with a
   2-29  license application and an application for renewal of a license a
   2-30  description of the design standards required for signs under this
   2-31  section.
   2-32        SECTION 4.  Section 145.007, Health and Safety Code, is
   2-33  amended to read as follows:
   2-34        Sec. 145.007.  PROHIBITED CLAIMS ABOUT SAFETY. A tanning
   2-35  facility operator may not claim or distribute promotional materials
   2-36  that claim that using a tanning device is safe or free from risk or
   2-37  that using a tanning device will result in medical or health
   2-38  benefits.
   2-39        SECTION 5.  Section 145.008, Health and Safety Code, is
   2-40  amended to read as follows:
   2-41        Sec. 145.008.  OPERATIONAL REQUIREMENTS.  (a)  A tanning
   2-42  facility shall have an operator present during operating hours.
   2-43  The operator must:
   2-44              (1)  be sufficiently knowledgeable in the correct
   2-45  operation of the tanning devices used at the facility;
   2-46              (2)  instruct, <that the operator may> inform, and
   2-47  assist each customer in the proper use of the tanning devices;
   2-48              (3)  complete and maintain records required by this
   2-49  chapter; and
   2-50              (4)  explain or otherwise inform each customer
   2-51  initially using the tanning facility of:
   2-52                    (A)  the potential hazards of and protective
   2-53  measures necessary for ultraviolet radiation;
   2-54                    (B)  the requirement that protective eyewear be
   2-55  worn while using a tanning device;
   2-56                    (C)  the possibility of photosensitivity or of a
   2-57  photoallergic reaction to certain drugs, medicine, or other agents
   2-58  when a person is subjected to the sun or ultraviolet radiation;
   2-59                    (D)  the correlation between skin type and
   2-60  exposure time;
   2-61                    (E)  the maximum exposure time to the facility's
   2-62  devices;
   2-63                    (F)  the biological process of tanning; and
   2-64                    (G)  the dangers of and the necessity to avoid
   2-65  overexposure to ultraviolet radiation.
   2-66        (b)  Before each use of a tanning device, the operator shall
   2-67  provide with each device clean and <provide the customer with>
   2-68  properly sanitized protective eyewear that protects the eyes from
   2-69  ultraviolet radiation and allows adequate vision to maintain
   2-70  balance.  The protective eyewear shall be located in the immediate
    3-1  area of each tanning device and shall be provided without charge to
    3-2  each user of a tanning device.  The operator may not allow a person
    3-3  to use a tanning device if that person does not use <the>
    3-4  protective eyewear that meets the requirements of the United States
    3-5  Food and Drug Administration.  The operator also shall show each
    3-6  customer how to use suitable physical aids, such as handrails and
    3-7  markings on the floor, to maintain proper exposure distance as
    3-8  recommended by the manufacturer of the tanning device.
    3-9        (c)  The tanning facility operator shall clean and properly
   3-10  sanitize the body contact surfaces of a tanning device after each
   3-11  use of the tanning device.
   3-12        (d) <(c)>  The tanning facility shall use a timer with an
   3-13  accuracy of at least plus or minus 10 percent of the maximum timer
   3-14  <any selected time> interval of the tanning device.  The operator
   3-15  <facility> shall limit the exposure time of a customer on a tanning
   3-16  device to the maximum exposure time recommended by the
   3-17  manufacturer.  A timer shall be located so that a customer cannot
   3-18  set or reset the customer's exposure time.  The operator <facility>
   3-19  shall control the <interior> temperature of the customer contact
   3-20  surfaces of a tanning device and the surrounding area so that it
   3-21  may not exceed 100 degrees Fahrenheit.
   3-22        (e)  Before <(d)  Either each time> a customer who is 18
   3-23  years of age or older uses a tanning facility device for the first
   3-24  time and <or> each time a person executes or renews a contract to
   3-25  use a tanning facility device, the person must sign a written
   3-26  statement acknowledging that the person has read and understood the
   3-27  required warnings before using the device and agrees to use <the>
   3-28  protective eyewear <that the tanning facility provides>.
   3-29        (f) <(e)>  Before any person who is <at least 14 years of age
   3-30  but> younger than 18 years of age uses a tanning facility device
   3-31  for the first time, the person must give the operator <tanning
   3-32  facility> a written informed consent statement signed and dated by
   3-33  the person's parent or legal guardian stating that the parent or
   3-34  legal guardian has read and understood the warnings given by the
   3-35  tanning facility, consents to the minor's use of a tanning device,
   3-36  and agrees that the minor will use <the> protective eyewear <that
   3-37  the tanning facility provides>.  In addition, a <A> person younger
   3-38  than 14 years of age must be accompanied by a parent or legal
   3-39  guardian who must remain at the tanning facility while the person
   3-40  younger than 14 years of age is <when> using a tanning device.
   3-41        (g)  When a tanning device is in use by a person, another
   3-42  person may not be allowed in the area of the tanning device.
   3-43        (h)  A record of each customer using a tanning device shall
   3-44  be maintained at the tanning facility at least until the third
   3-45  anniversary of the date of the customer's last use of a tanning
   3-46  device. The board by rule shall prescribe the form and content of
   3-47  the records. The record shall include:
   3-48              (1)  the date and time of the customer's use of a
   3-49  tanning device;
   3-50              (2)  the length of time the tanning device was used;
   3-51              (3)  any injury or illness resulting from the use of a
   3-52  tanning device; and
   3-53              (4)  any written informed consent statement required to
   3-54  be signed under Subsection (e) or (f).
   3-55        SECTION 6.  Section 145.009, Health and Safety Code, is
   3-56  amended to read as follows:
   3-57        Sec. 145.009.  LICENSES <PERMITS>.  (a)  A person may not
   3-58  operate a tanning facility unless the person holds a license
   3-59  <permit> issued by the department to operate the facility. Unless
   3-60  revoked or suspended, a license is valid until the first
   3-61  anniversary of the date the license was issued. A separate license
   3-62  is required for each tanning facility.
   3-63        (b)  The license <permit> shall be displayed in an open
   3-64  public area of the tanning facility.
   3-65        (c)  The board annually shall renew licenses <permits> after
   3-66  application for renewal is made on forms provided by the department
   3-67  for this purpose and after receipt of renewal fees.
   3-68        (d)  The department by rule may adopt a system under which
   3-69  licenses <permits> expire on various dates during the year.  As
   3-70  part of this system the license fees and the annual renewal fees
    4-1  may be prorated on a monthly basis to reflect the actual number of
    4-2  months the license <permit> is valid.
    4-3        (e)  The department may revoke, <cancel,> suspend, suspend on
    4-4  an emergency basis, or probate by an emergency order of the
    4-5  commissioner, or the commissioner's designee a license <permit> to
    4-6  operate a tanning facility for:
    4-7              (1)  a failure to pay a license <permit> fee or an
    4-8  annual renewal fee for a license <permit>;
    4-9              (2)  an applicant's acquisition or attempted
   4-10  acquisition of a license <permit> by fraud or deception;
   4-11              (3)  a violation of this chapter; <or>
   4-12              (4)  a violation of a rule of the department adopted
   4-13  under this chapter; or
   4-14              (5)  a violation of an order issued under this chapter.
   4-15        (f)  A license issued under this chapter shall be returned to
   4-16  the department if the tanning facility:
   4-17              (1)  ceases to operate as a business permanently;
   4-18              (2)  changes the ownership of the tanning facility;
   4-19              (3)  changes the location of the tanning facility; or
   4-20              (4)  changes the name of the business under which the
   4-21  tanning facility operates.
   4-22        SECTION 7.  Section 145.010, Health and Safety Code, is
   4-23  amended to read as follows:
   4-24        Sec. 145.010.  FEES.  (a)  The board shall collect a fee,
   4-25  except as provided by Subsection (f), for:
   4-26              (1)  a license issued or renewed; or
   4-27              (2)  a license that is modified  <The department shall
   4-28  set and collect a permit fee of $50 and an annual permit renewal
   4-29  fee of $35>.
   4-30        (b)  The board may charge prorated or annual fees.
   4-31        (c)  The board by rule shall set the fees in amounts that
   4-32  allow the department to recover not less than 50 percent of the
   4-33  costs to the department in:
   4-34              (1)  reviewing and acting on a license application;
   4-35              (2)  modifying or renewing a license;
   4-36              (3)  inspecting a licensed facility; and
   4-37              (4)  implementing and enforcing this chapter or rules
   4-38  relating to this chapter.
   4-39        (d)  The department shall use not less than 50 percent of the
   4-40  license fees collected for inspecting a licensed facility or
   4-41  enforcement of this chapter or a rule relating to this chapter.
   4-42  The remainder of the license fees collected shall be used to
   4-43  administer this chapter.
   4-44        (e)  A license fee received by the department shall be
   4-45  deposited in the state treasury to the credit of the food and drug
   4-46  registration fund.  The fees are dedicated to the department for
   4-47  the administration and enforcement of this chapter.
   4-48        (f)  The department shall set and collect a permit fee of
   4-49  $1,500 and an annual permit renewal fee of $750 for a tanning
   4-50  facility that operates as a sexually oriented business under
   4-51  license or permit issued in accordance with Section 243.007, Local
   4-52  Government Code.
   4-53        SECTION 8.  Section 145.011, Health and Safety Code, is
   4-54  amended by adding Subsection (c) to read as follows:
   4-55        (c)  A person who is required to maintain records under this
   4-56  chapter or a person in charge of the custody of those records
   4-57  shall, at the request of an authorized agent or health authority,
   4-58  permit the authorized agent or health authority access to copy or
   4-59  verify the records at reasonable times.
   4-60        SECTION 9.  Section 145.012, Health and Safety Code, is
   4-61  amended to read as follows:
   4-62        Sec. 145.012.  EMERGENCY ORDER <INJUNCTION>.  (a)  The
   4-63  commissioner or the commissioner's designee may issue an emergency
   4-64  order relating to the operation of a tanning facility in the
   4-65  department's jurisdiction if the commissioner or the commissioner's
   4-66  designee determines that:
   4-67              (1)  operation of the tanning facility creates or poses
   4-68  an immediate and serious threat to human life or health; and
   4-69              (2)  other procedures available to the department to
   4-70  remedy or prevent the threat will result in unreasonable delay.
    5-1        (b)  The commissioner or the commissioner's designee may
    5-2  issue an emergency order without notice or a hearing if the
    5-3  commissioner or the designee determines notice or a hearing is not
    5-4  practical under the circumstances.
    5-5        (c)  If an emergency order is issued without a hearing, the
    5-6  department shall determine a time and place for a hearing at which
    5-7  the emergency order is affirmed, modified, or set aside. The
    5-8  hearing shall be held under rules of the department  <If the
    5-9  commissioner, an authorized agent, or a health authority finds that
   5-10  a person has violated or is violating or threatening to violate
   5-11  this chapter and that the violation or threat of violation creates
   5-12  an immediate threat to the health and safety of the public, the
   5-13  commissioner, authorized agent, or health authority may petition
   5-14  the district court for a temporary restraining order to restrain
   5-15  the violation or threat of violation>.
   5-16        <(b)  If a person has violated or is violating or threatening
   5-17  to violate this chapter the commissioner, an authorized agent, or a
   5-18  health authority may petition the district court for an injunction
   5-19  to prohibit the person from continuing the violation or threat of
   5-20  violation.>
   5-21        <(c)  On application for injunctive relief and a finding that
   5-22  a person is violating or threatening to violate this chapter, the
   5-23  district court shall grant any injunctive relief warranted by the
   5-24  facts.>
   5-25        <(d)  Venue for a suit brought under this section is in the
   5-26  county in which the violation or the threat of violation is alleged
   5-27  to have occurred or in Travis County.>
   5-28        SECTION 10.  Chapter 145, Health and Safety Code, is amended
   5-29  by adding Sections 145.0121-145.0123 to read as follows:
   5-30        Sec. 145.0121. CIVIL PENALTY; INJUNCTION.  (a)  If it appears
   5-31  that a person has violated or is violating this chapter or an order
   5-32  issued or a rule adopted under this chapter, the commissioner may
   5-33  request the attorney general or the district or county attorney or
   5-34  the municipal attorney of a municipality in the jurisdiction where
   5-35  the violation is alleged to have occurred or may occur to institute
   5-36  a civil suit for:
   5-37              (1)  an order enjoining the violation;
   5-38              (2)  a permanent or temporary injunction, a temporary
   5-39  restraining order, or other appropriate remedy if the department
   5-40  shows that the person has engaged in or is engaging in a violation;
   5-41              (3)  the assessment and recovery of a civil penalty; or
   5-42              (4)  both injunctive relief and a civil penalty.
   5-43        (b)  A civil penalty may not exceed $25,000 a day for each
   5-44  violation. Each day the violation occurs constitutes a separate
   5-45  violation for the purposes of the assessment of a civil penalty.
   5-46        (c)  In determining the amount of the civil penalty, the
   5-47  court hearing the matter shall consider:
   5-48              (1)  the person's history of previous violations;
   5-49              (2)  the seriousness of the violation;
   5-50              (3)  the hazard to the health and safety of the public;
   5-51              (4)  the demonstrated good faith of the person charged;
   5-52  and
   5-53              (5)  any other matter as justice may require.
   5-54        (d)  Venue for a suit brought under this section is the
   5-55  municipality or county in which the violation occurred or in Travis
   5-56  County.
   5-57        (e)  A civil penalty recovered in a suit instituted by a
   5-58  local government under this chapter shall be paid to the local
   5-59  government.
   5-60        (f)  The commissioner or the attorney general may each
   5-61  recover reasonable expenses incurred in obtaining injunctive relief
   5-62  or a civil penalty under this section, including investigation and
   5-63  court costs, reasonable attorney's fees, witness fees, and other
   5-64  expenses. The expenses recovered by the commissioner under this
   5-65  section shall be used for the administration and enforcement of
   5-66  this chapter. The expenses recovered by the attorney general shall
   5-67  be used by the attorney general.
   5-68        Sec. 145.0122.  ADMINISTRATIVE PENALTY.  (a)  The board or
   5-69  the board's designee may impose an administrative penalty against a
   5-70  person licensed or regulated under this chapter who violates this
    6-1  chapter or a rule or order adopted under this chapter.
    6-2        (b)  The penalty for a violation may be in an amount not to
    6-3  exceed $25,000.  Each day a violation continues or occurs is a
    6-4  separate violation for purposes of imposing an administrative
    6-5  penalty.
    6-6        (c)  The amount of the penalty shall be based on:
    6-7              (1)  the person's history of previous violations;
    6-8              (2)  the seriousness of the violation;
    6-9              (3)  the hazard the violation caused or will cause to
   6-10  the health and safety of the public;
   6-11              (4)  the demonstrated good faith of the person charged
   6-12  with a violation; and
   6-13              (5)  any other matter that justice may require.
   6-14        (d)  If the commissioner or the commissioner's designee
   6-15  determines a violation has occurred, the commissioner or the
   6-16  commissioner's designee may issue to the board or the board's
   6-17  designee a report that states the facts on which the determination
   6-18  is based and the commissioner's or the designee's recommendation on
   6-19  the imposition of a penalty, including a recommendation on the
   6-20  amount of the penalty.
   6-21        (e)  Within 14 days after the date the report is issued, the
   6-22  commissioner or the commissioner's designee shall give written
   6-23  notice of the report to the person.  The notice may be given by
   6-24  certified mail.  The notice must include a brief summary of the
   6-25  alleged violation and a statement of the amount of the recommended
   6-26  penalty and must inform the person that the person has a right to a
   6-27  hearing on the occurrence of the violation, the amount of the
   6-28  penalty, or both the occurrence of the violation and the amount of
   6-29  the penalty.
   6-30        (f)  Within 20 days after the date the person receives the
   6-31  notice, the person in writing may accept the determination and
   6-32  recommended penalty of the commissioner or the commissioner's
   6-33  designee or may make a written request for a hearing on the
   6-34  occurrence of the violation, the amount of the penalty, or both the
   6-35  occurrence of the violation and the amount of the penalty.
   6-36        (g)  If the person accepts the determination and recommended
   6-37  penalty of the commissioner or the commissioner's designee, the
   6-38  board by order shall approve the determination and impose the
   6-39  recommended penalty.
   6-40        (h)  If the person requests a hearing or fails to respond
   6-41  timely to the notice, the commissioner or the commissioner's
   6-42  designee shall set a hearing and give notice of the hearing to the
   6-43  person.  The hearing shall be held by an administrative law judge
   6-44  of the department.  The administrative law judge shall make
   6-45  findings of fact and conclusions of law and promptly issue to the
   6-46  board a proposal for a decision about the occurrence of the
   6-47  violation and the amount of a proposed penalty.  Based on the
   6-48  findings of fact, conclusions of law, and proposal for a decision,
   6-49  the board by order may find that a violation has occurred and
   6-50  impose a penalty or may find that no violation occurred.
   6-51        (i)  The notice of the board's order given to the person
   6-52  under Chapter 2001, Government Code, must include a statement of
   6-53  the right of the person to judicial review of the order.
   6-54        (j)  Within 30 days after the date the board's order becomes
   6-55  final as provided by Section 2001.144, Government Code, the person
   6-56  shall:
   6-57              (1)  pay the amount of the penalty;
   6-58              (2)  pay the amount of the penalty and file a petition
   6-59  for judicial review contesting the occurrence of the violation, the
   6-60  amount of the penalty, or both the occurrence of the violation and
   6-61  the amount of the penalty; or
   6-62              (3)  without paying the amount of the penalty, file a
   6-63  petition for judicial review in a district court in Travis County
   6-64  contesting the occurrence of the violation, the amount of the
   6-65  penalty, or both the occurrence of the violation and the amount of
   6-66  the penalty.
   6-67        (k)  Within the 30-day period, a person who acts under
   6-68  Subsection (j)(3) may:
   6-69              (1)  stay enforcement of the penalty by:
   6-70                    (A)  paying the amount of the penalty to the
    7-1  court for placement in an escrow account; or
    7-2                    (B)  giving to the court a supersedeas bond that
    7-3  is approved by the court for the amount of the penalty and that is
    7-4  effective until all judicial review of the board's order is final;
    7-5  or
    7-6              (2)  request the court to stay enforcement of the
    7-7  penalty by:
    7-8                    (A)  filing with the court a sworn affidavit of
    7-9  the person stating that the person is financially unable to pay the
   7-10  amount of the penalty and is financially unable to give the
   7-11  supersedeas bond; and
   7-12                    (B)  giving a copy of the affidavit to the
   7-13  commissioner by certified mail.
   7-14        (l)  If the commissioner receives a copy of an affidavit
   7-15  under Subsection (k)(2), the commissioner may file with the court,
   7-16  not later than the fifth day after the date the copy is received, a
   7-17  contest to the affidavit.  The court shall hold a hearing on the
   7-18  facts alleged in the affidavit as soon as practicable and shall
   7-19  stay the enforcement of the penalty on finding that the alleged
   7-20  facts are true.  The person who files an affidavit has the burden
   7-21  of proving that the person is financially unable to pay the amount
   7-22  of the penalty and give a supersedeas bond.
   7-23        (m)  If the person does not pay the amount of the penalty and
   7-24  the enforcement of the penalty is not stayed, the commissioner may
   7-25  refer the matter to the attorney general for collection of the
   7-26  amount of the penalty.
   7-27        (n)  Judicial review of the order of the board:
   7-28              (1)  is instituted by filing a petition as provided by
   7-29  Subchapter G, Chapter 2001, Government Code; and
   7-30              (2)  is under the substantial evidence rule.
   7-31        (o)  If the court sustains the occurrence of the violation,
   7-32  the court may uphold or reduce the amount of the penalty and order
   7-33  the person to pay the full or reduced amount of the penalty.  If
   7-34  the court does not sustain the occurrence of the violation, the
   7-35  court shall order that no penalty is owed.
   7-36        (p)  When the judgment of the court becomes final, the court
   7-37  shall proceed under this subsection.  If the person paid the amount
   7-38  of the penalty and if that amount is reduced or is not upheld by
   7-39  the court, the court shall order that the appropriate amount plus
   7-40  accrued interest be remitted to the person.  The rate of the
   7-41  interest is the rate charged on loans to depository institutions by
   7-42  the New York Federal Reserve Bank, and the interest shall be paid
   7-43  for the period beginning on the date the penalty was paid and
   7-44  ending on the date the penalty is remitted.  If the person gave a
   7-45  supersedeas bond and if the amount of the penalty is not upheld by
   7-46  the court, the court shall order the release of the bond.  If the
   7-47  person gave a supersedeas bond and if the amount of the penalty is
   7-48  reduced, the court shall order the release of the bond after the
   7-49  person pays the amount.
   7-50        (q)  A penalty collected under this section shall be remitted
   7-51  to the comptroller for deposit in the general revenue fund.
   7-52        (r)  All proceedings under this section are subject to
   7-53  Chapter 2001, Government Code.
   7-54        Sec. 145.0123.  RESTRICTIONS ON ADULT TANNING FACILITIES.
   7-55  (a)  An adult tanning facility is subject to the requirements of
   7-56  this chapter and any other provision of law regulating the
   7-57  operation of an adult tanning facility.
   7-58        (b)  In this section, "adult tanning facility" means a
   7-59  tanning facility whose primary business is offering a service or
   7-60  the sale, rental, or exhibition of a device or other item intended
   7-61  to provide sexual stimulation or sexual gratification to a
   7-62  customer.
   7-63        SECTION 11.  Section 145.013, Health and Safety Code, is
   7-64  amended to read as follows:
   7-65        Sec. 145.013.  CRIMINAL PENALTY.  (a)  A person, other than a
   7-66  customer, commits an offense if the person <knowingly or
   7-67  recklessly> violates this chapter or a rule adopted under this
   7-68  chapter.
   7-69        (b)  An offense under this chapter is a Class A <Class C>
   7-70  misdemeanor.
    8-1        SECTION 12.  This Act takes effect September 1, 1995.
    8-2        SECTION 13.  (a)  A change in law made by this Act applies
    8-3  only to an offense committed on or after the effective date of this
    8-4  Act.  For the purposes of this section, an offense is committed
    8-5  before the effective date of this Act if any element of the offense
    8-6  occurs before that date.
    8-7        (b)  An offense committed before the effective date of this
    8-8  Act is governed by the law in effect when the offense is committed,
    8-9  and the former law is continued in effect for that purpose.
   8-10        (c)  The change in law made by this Act regarding the
   8-11  imposition of a civil or administrative penalty applies only to a
   8-12  violation that occurs on or after the effective date of this Act.
   8-13  A violation that occurs before the effective date of this Act is
   8-14  covered by the law in effect when the violation was committed, and
   8-15  the former law is continued in effect for that purpose.
   8-16        SECTION 14.  The importance of this legislation and the
   8-17  crowded condition of the calendars in both houses create an
   8-18  emergency and an imperative public necessity that the
   8-19  constitutional rule requiring bills to be read on three several
   8-20  days in each house be suspended, and this rule is hereby suspended.
   8-21                               * * * * *