By Madla S.B. No. 932
76R2029 CMR-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation of tattoo studios; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 146.003(b), Health and Safety Code, is
1-5 amended to read as follows:
1-6 (b) [On receipt of a tattoo studio license application, the
1-7 department shall inspect the proposed tattoo studio to determine
1-8 compliance with this chapter and rules adopted by the board under
1-9 this chapter. In addition, the department shall request
1-10 confirmation from the appropriate building and zoning officials in
1-11 the municipality or county in which the studio is proposed to be
1-12 located to determine compliance with existing building and zoning
1-13 codes applicable to the studio.] The department may issue a
1-14 license or temporary location license for a tattoo studio after
1-15 determining that the studio is in compliance with applicable
1-16 statutes and[,] rules[, and building and zoning codes].
1-17 SECTION 2. Section 146.007, Health and Safety Code, is
1-18 amended to read as follows:
1-19 Sec. 146.007. COMPLIANCE WITH CHAPTER AND RULES. (a) A
1-20 person who owns, operates, or maintains a tattoo studio or
1-21 practices tattooing at a temporary location shall comply with this
1-22 chapter, Chapter 431, and rules adopted under this chapter and
1-23 Chapter 431.
1-24 (b) The board, commissioner, and department may enforce
2-1 Chapter 431 in relation to a drug, cosmetic, or device that is used
2-2 in tattooing and that is not otherwise subject to that chapter as
2-3 if the drug, cosmetic, or device satisfied the definitions assigned
2-4 those terms under Section 431.002.
2-5 SECTION 3. Section 146.011(c), Health and Safety Code, is
2-6 amended to read as follows:
2-7 (c) Tools and equipment shall be sterilized by:
2-8 (1) the use of a dry heat sterilizer [heating in an
2-9 oven at 320 degrees Fahrenheit for at least one hour]; or
2-10 (2) steam pressure treatment in an autoclave.
2-11 SECTION 4. Section 146.017(b), Health and Safety Code, is
2-12 amended to read as follows:
2-13 (b) The refusal to issue a license, the suspension or
2-14 revocation of a license, and any appeals are governed by the
2-15 board's formal hearing procedures and the procedures for a
2-16 contested case hearing under Chapter 2001, Government Code. A
2-17 person may appeal a final decision of the department as provided by
2-18 that chapter [the Administrative Procedure and Texas Register Act
2-19 (Article 6252-13a, Vernon's Texas Civil Statutes)].
2-20 SECTION 5. Section 146.018(b), Health and Safety Code, is
2-21 amended to read as follows:
2-22 (b) An offense under this section is a Class A [C]
2-23 misdemeanor.
2-24 SECTION 6. Section 146.019, Health and Safety Code, is
2-25 amended to read as follows:
2-26 Sec. 146.019. ADMINISTRATIVE PENALTY. (a) The commissioner
2-27 may impose an administrative penalty against a person who violates
3-1 a rule adopted under this chapter or Chapter 431 [Section 146.007]
3-2 or an order adopted or license issued under this chapter or Chapter
3-3 431.
3-4 (b) The penalty for a violation may be in an amount not to
3-5 exceed $5,000. Each day a violation continues or occurs is a
3-6 separate violation for purposes of imposing a penalty.
3-7 (c) The amount of the penalty shall be based on:
3-8 (1) the seriousness of the violation, including the
3-9 nature, circumstances, extent, and gravity of any prohibited acts,
3-10 and the hazard or potential hazard created to the health, safety,
3-11 or economic welfare of the public;
3-12 (2) the economic harm to property or the environment
3-13 caused by the violation;
3-14 (3) the history of previous violations;
3-15 (4) the amounts necessary to deter future violations;
3-16 (5) efforts to correct the violation; and
3-17 (6) any other matter that justice may require.
3-18 (d) [The commissioner who determines that a violation has
3-19 occurred shall issue an order that states the facts on which the
3-20 determination is based, including an assessment of the penalty.]
3-21 [(e)] The department [Within 14 days after the date the
3-22 report is issued, the commissioner] shall give written notice of
3-23 alleged violations [the report] to the person. The notice may be
3-24 given by certified mail. The notice must include a brief summary
3-25 of the alleged violation and a statement of the amount of the
3-26 recommended penalty and must inform the person that the person has
3-27 a right to a hearing on the occurrence of the violation, the amount
4-1 of the penalty, or both the occurrence of the violation and the
4-2 amount of the penalty.
4-3 (e) [(f)] Within 20 days after the date the person receives
4-4 the notice, the person in writing may accept the determination and
4-5 recommended penalty [of the commissioner] or may make written
4-6 request for a hearing on the occurrence of the violation, the
4-7 amount of the penalty, or both the occurrence of the violation and
4-8 the amount of the penalty.
4-9 (f) [(g)] If the person accepts the determination and
4-10 recommended penalty [of the commissioner], the commissioner by
4-11 order shall approve the determination and impose the recommended
4-12 penalty.
4-13 (g) [(h)] If the person requests a hearing [or fails to
4-14 respond timely to the notice], the department [commissioner] shall
4-15 set a hearing and give notice of the hearing to the person. The
4-16 hearing shall be held by an administrative law judge of the State
4-17 Office of Administrative Hearings. The administrative law judge
4-18 shall make findings of fact and conclusions of law and promptly
4-19 issue to the commissioner a proposal for a decision about the
4-20 occurrence of the violation and the amount of a proposed penalty.
4-21 Based on the findings of fact, conclusions of law, and proposal for
4-22 a decision, the commissioner by order may find that a violation has
4-23 occurred and impose a penalty or may find that no violation
4-24 occurred.
4-25 (h) [(i)] The notice of the commissioner's order given to
4-26 the person under Chapter 2001, Government Code, must include a
4-27 statement of the right of the person to judicial review of the
5-1 order.
5-2 (i) [(j)] Within 30 days after the date the commissioner's
5-3 order is final as provided by Subchapter F, Chapter 2001,
5-4 Government Code, the person shall:
5-5 (1) pay the amount of the penalty;
5-6 (2) pay the amount of the penalty and file a petition
5-7 for judicial review contesting the occurrence of the violation, the
5-8 amount of the penalty, or both the occurrence of the violation and
5-9 the amount of the penalty; or
5-10 (3) without paying the amount of the penalty, file a
5-11 petition for judicial review contesting the occurrence of the
5-12 violation, the amount of the penalty, or both the occurrence of the
5-13 violation and the amount of the penalty.
5-14 (j) [(k)] Within the 30-day period, a person who acts under
5-15 Subsection (i)(3) [(j)(3) of this section] may:
5-16 (1) stay enforcement of the penalty by:
5-17 (A) paying the amount of the penalty to the
5-18 court for placement in an escrow account; or
5-19 (B) giving to the court a supersedeas bond
5-20 approved by the court for the amount of the penalty and that is
5-21 effective until all judicial review of the commissioner's order is
5-22 final; or
5-23 (2) request the court to stay enforcement of the
5-24 penalty by:
5-25 (A) filing with the court a sworn affidavit of
5-26 the person stating that the person is financially unable to pay the
5-27 amount of the penalty and is financially unable to give the
6-1 supersedeas bond; and
6-2 (B) giving a copy of the affidavit to the
6-3 commissioner by certified mail.
6-4 (k) [(l)] The commissioner who receives a copy of an
6-5 affidavit under Subsection (j)(2) [(k)(2) of this section] may
6-6 file, with the court within five days after the date the copy is
6-7 received, a contest to the affidavit. The court shall hold a
6-8 hearing on the facts alleged in the affidavit as soon as
6-9 practicable and shall stay the enforcement of the penalty on
6-10 finding that the alleged facts are true. The person who files an
6-11 affidavit has the burden of proving that the person is financially
6-12 unable to pay the amount of the penalty and to give a supersedeas
6-13 bond.
6-14 (l) [(m)] If the person does not pay the amount of the
6-15 penalty and the enforcement of the penalty is not stayed, the
6-16 commissioner may refer the matter to the attorney general for
6-17 collection of the amount of the penalty.
6-18 (m) [(n)] Judicial review of the order of the commissioner:
6-19 (1) is instituted by filing a petition as provided by
6-20 Subchapter G, Chapter 2001, Government Code [and its subsequent
6-21 amendments]; and
6-22 (2) is under the substantial evidence rule.
6-23 (n) [(o)] If the court sustains the occurrence of the
6-24 violation, the court may uphold or reduce the amount of the penalty
6-25 and order the person to pay the full or reduced amount of the
6-26 penalty. If the court does not sustain the occurrence of the
6-27 violation, the court shall order that no penalty is owed.
7-1 (o) [(p)] When the judgment of the court becomes final, the
7-2 court shall proceed under this subsection. If the person paid the
7-3 amount of the penalty and if that amount is reduced or is not
7-4 upheld by the court, the court shall order that the appropriate
7-5 amount plus accrued interest be remitted to the person. The rate
7-6 of the interest is the rate charged on loans to depository
7-7 institutions by the New York Federal Reserve Bank, and the interest
7-8 shall be paid for the period beginning on the date the penalty was
7-9 paid and ending on the date the penalty is remitted. If the person
7-10 gave a supersedeas bond and if the amount of the penalty is not
7-11 upheld by the court, the court shall order the release of the bond.
7-12 If the person gave a supersedeas bond and if the amount of the
7-13 penalty is reduced, the court shall order the release of the bond
7-14 after the person pays the amount.
7-15 (p) [(q)] A penalty collected under this section shall be
7-16 remitted to the comptroller for deposit in the general revenue
7-17 fund.
7-18 (q) [(r)] All proceedings under this section are subject to
7-19 Chapter 2001, Government Code.
7-20 SECTION 7. Chapter 146, Health and Safety Code, is amended
7-21 by adding Section 146.020 to read as follows:
7-22 Sec. 146.020. CIVIL PENALTY; INJUNCTION. (a) If it appears
7-23 that a person has violated, is violating, or is threatening to
7-24 violate this chapter or an order issued or a rule adopted under
7-25 this chapter, the commissioner may request the attorney general or
7-26 the district attorney, county attorney, or municipal attorney in
7-27 the jurisdiction where the violation is alleged to have occurred,
8-1 is occurring, or may occur to institute a civil suit for:
8-2 (1) an order enjoining the violation;
8-3 (2) a permanent or temporary injunction, a temporary
8-4 restraining order, or other appropriate remedy, if the department
8-5 shows that the person has engaged in or is engaging in a violation;
8-6 (3) the assessment and recovery of a civil penalty; or
8-7 (4) both injunctive relief and a civil penalty.
8-8 (b) A civil penalty may not exceed $5,000 a day for each
8-9 violation. Each day the violation occurs constitutes a separate
8-10 violation for the purposes of the assessment of a civil penalty.
8-11 (c) In determining the amount of the civil penalty, the
8-12 court hearing the matter shall consider:
8-13 (1) the person's history of previous violations;
8-14 (2) the seriousness of the violation;
8-15 (3) the hazard to the health and safety of the public;
8-16 (4) the demonstrated good faith of the person charged;
8-17 and
8-18 (5) any other matter as justice may require.
8-19 (d) Venue for a suit brought under this section is in the
8-20 county in which the violation occurred or in Travis County.
8-21 (e) A civil penalty recovered in a suit instituted by a
8-22 local government under this chapter shall be paid to the local
8-23 government.
8-24 (f) The commissioner or the attorney general may each
8-25 recover reasonable expenses incurred in obtaining injunctive relief
8-26 or a civil penalty under this section, including investigation and
8-27 court costs, reasonable attorney's fees, witness fees, and other
9-1 expenses. The expenses recovered by the commissioner under this
9-2 section may be used for the administration and enforcement of this
9-3 chapter. The expenses recovered by the attorney general may be
9-4 used by the attorney general for any purpose.
9-5 SECTION 8. The following laws are repealed:
9-6 (1) Section 146.003(c), Health and Safety Code;
9-7 (2) Section 146.009, Health and Safety Code; and
9-8 (3) Section 146.016(c), Health and Safety Code.
9-9 SECTION 9. This Act takes effect September 1, 1999.
9-10 SECTION 10. (a) The change in law made by this Act to
9-11 Section 146.018 applies only to an offense committed on or after
9-12 the effective date of this Act. For the purposes of this section,
9-13 an offense is committed before the effective date of this Act if
9-14 any element of the offense occurs before that date.
9-15 (b) An offense committed before the effective date of this
9-16 Act is covered by the law in effect when the offense was committed,
9-17 and the former law is continued in effect for that purpose.
9-18 SECTION 11. Section 146.019, Health and Safety Code, as
9-19 amended by this Act, and Section 146.020, Health and Safety Code,
9-20 as added by this Act, apply only to conduct occurring on or after
9-21 the effective date of this Act.
9-22 SECTION 12. The importance of this legislation and the
9-23 crowded condition of the calendars in both houses create an
9-24 emergency and an imperative public necessity that the
9-25 constitutional rule requiring bills to be read on three several
9-26 days in each house be suspended, and this rule is hereby suspended.