80R10098 T

By: Zedler H.B. No. 2435

A BILL TO BE ENTITLED

AN ACT

relating to the regulation and oversight of public and occupational health risks related to the operation of sexually oriented businesses; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. LEGISLATIVE FINDING. The Legislature has determined that the operation of sexually oriented businesses presents a large number of public health and occupational health risks, including the transmission and spread of sexually transmitted diseases and other communicable diseases, alcohol and drug abuse, and domestic violence. It is therefore appropriate for the Legislature to adopt a method of regulation, under the oversight of the Department of State Health Services, that seeks to eliminate or minimize these public health and occupational health risks to the owners, operators, employees, and patrons of sexually oriented businesses and to the communities in which these sexually oriented businesses are located. The Legislature finds that a method of licensure of operators and employees of sexually oriented businesses that includes regulations designed to minimize public and occupational health risks, screening for public health and occupational health risks, continuing education on public health and occupational health risks, and warnings of public health and occupational health risks to employees and members of the public, is necessary to protect the public health of citizens of this state.

SECTION 2. The Department of State Health Services shall, not later than the 90th day after the adoption of this Act, review and report to the Legislature its initial finding regarding public health and occupational health risks associated with the operation of sexually oriented businesses, including the transmission and spread of sexually transmitted diseases and other communicable diseases, alcohol and drug abuse, and domestic violence. The report shall be forwarded to the chair of the House Committee on Public Health and Senate Committee on Health and Human Services.

SECTION 2. Subtitle G, Title 2, Health and Safety Code, is amended by adding Chapter 148 to read as follows: CHAPTER 148. REGULATION OF PUBLIC AND OCCUPATIONAL HEALTH RISKS RELATED TO THE OPERATION OF SEXUALLY ORIENTED BUSINESSES SUBCHAPTER A. GENERAL PROVISIONS

Sec. 148.0005. PUBLIC HEALTH AND OCCUPATIONAL HEALTH DUTIES OF SEXUALLY ORIENTED BUSINESSES. An operator or employee of a sexually oriented businesses shall provide employees, patrons, and members of the community with conditions that are free from recognized public health and occupational health hazards.

Sec. 148.001. DEFINITIONS. In this chapter:

(1) "Department" means the Department of State Health Services.

(2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(3) "License holder" means a person who holds a license issued under this chapter.

Sec. 148.002. SEXUALLY ORIENTED BUSINESSES DEFINED. (a) In this chapter, a "sexually oriented business" means:

(1) a sex parlor, sexually oriented arcade, sexually oriented bookstore, sexually oriented video store, sexually oriented cabaret, sexually oriented motel, sexually oriented novelty store, sexually oriented theater, sexually oriented motion picture theater, sexually oriented service establishment, nude model business, or sexual encounter center; or

(2) any other commercial enterprise:

(A) that devotes a significant or substantial portion of its business to the offering of a service or to the selling, renting, or exhibiting of a device or any other item intended to provide sexual stimulation or sexual gratification to its customers;

(B) that is distinguished by or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas; or

(C) whose employees or customers appear in a state of nudity.

(b) As used in Subsection (a), "significant or substantial portion" refers to all relevant factors, including:

(1) whether the business uses advertising or a sign identifying the business as having sexually explicit merchandise or services for sale, rental, or viewing, including the use of terms such as "adult," "sex," or "XXX";

(2) the percentage of the business's overall sales or revenues attributable to sexually explicit content; and

(3) the percentage of sales or revenues attributable to sexually explicit content within each category of merchandise, including books, magazines, movies for rent, movies for sale, movies for on-site viewing, performances, sexual paraphernalia, and other similar products or services.

(c) As used in Subsection (a), "state of nudity" means:

(1) the appearance of a human bare buttock, a vulva, an anus, an anal cleft with less than a full opaque covering, male genitals, female genitals, or a female breast; or

(2) a state of dress that fails to completely and opaquely cover a human buttock, a vulva, an anus, male genitals, or female genitals or a part of the female breast that is situated below a point immediately above the top of the areola of the female breast.

Sec. 148.003. ADMINISTRATION BY DEPARTMENT OF STATE HEALTH SERVICES. The department shall administer this chapter.

Sec. 148.004. MUNICIPAL AND COUNTY REGULATION. This chapter is in addition to any municipal or county regulation. To the extent of a conflict between this chapter and a municipal or county regulation, this chapter controls.

Sec. 148.005. EXEMPTIONS. (a) This chapter does not apply to:

(1) a business operated by or employing a licensed psychologist, licensed physical therapist, licensed masseuse, licensed vocational nurse, registered nurse, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing the normal and customary functions authorized under the license;

(2) a business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts;

(3) a retail establishment whose principal business is the offering of wearing apparel for sale to customers and that does not exhibit merchandise on live models;

(4) an activity conducted or sponsored:

(A) by a proprietary school licensed by this state or a state-supported junior college or institution of higher education; or

(B) by a private institution of higher education that maintains or operates educational programs in which credits are transferable to a state-supported junior college or institution of higher education;

(5) a person licensed as an occupational therapist under Chapter 454; or

(6) a person who is providing a repair, maintenance, air conditioning, or delivery service on the premises of a sexually oriented business.

(b) An activity conducted or sponsored by an entity identified in Subsection (a)(4):

(1) must be in a structure that does not have a sign or other advertising visible from the exterior of the structure indicating that a nude person is available for viewing;

(2) must require that, in order to participate in the activity or conduct of a class, a student must enroll in the class at least three days in advance of the class; and

(3) may not have more than one nude model on the premises at any time. [Sections 148.006-148.050 reserved for expansion] SUBCHAPTER B. POWERS AND DUTIES

Sec. 148.051. FEES. The department shall set fees in an amount sufficient to cover the cost of administering this chapter.

Sec. 148.052. RULES. The executive commissioner shall adopt rules necessary to administer and enforce this chapter.

Sec. 148.053. RULES RELATING TO PUBLIC HEALTH AND OCCUPATIONAL HEALTH ISSUES RELATED TO THE OPERATION OF A SEXUALLY ORIENTED BUSINESS. (a) The executive commissioner shall adopt rules that establish public and occupational health standards for sexually oriented businesses. The standards may relate to:

(1) adequate and proper supervision of public health and occupational health risks at all times during the operation of a sexually oriented business;

(2) proper safeguards for sanitation, public health and occupational health in the operation of a sexually oriented business or in the conduct of an employee on the premises of a sexually oriented business;

(3) dissemination of public health and occupational health information to operators or employees of sexually oriented businesses, including information relating to the transmission and spread of sexually transmitted diseases or other communicable diseases;

(4) dissemination of public health and occupational health information to patrons of sexually oriented businesses, including information relating to the transmission and spread of sexually transmitted diseases or other communicable diseases;

(5) dissemination of public health and occupational health information to operators, employees, and patrons of sexually oriented businesses regarding public health and occupational risks related to alcohol abuse, drug abuse, and domestic violence;

(6) screening requirements for operators and employees of sexually oriented businesses, including testing and surveillance of public and occupational health risks, including testing for sexually transmitted diseases, other communicable diseases, and alcohol or drug use;

(7) warning signs that are posted in conspicuous location, readily visible by persons entering a sexually oriented business, of the public and occupational health risks associated with sexually oriented businesses; and

(8) inspections of sexually oriented businesses for public health and occupational health risks.

Sec. 148.054. RECORDS DISCLOSURE; CONFIDENTIALITY. (a) The department shall immediately disclose to appropriate public health agencies any information necessary to prevent or halt public health or occupational health risks, including the spread of sexually transmitted or other communicable diseases.

(b) The department shall disclose to a criminal justice agency or a public health or occupational health agency information contained in its files and records regarding whether a named individual is licensed under this chapter.

(c) Except as otherwise provided by this section, all records maintained under this chapter regarding an applicant or license holder are confidential and are not subject to mandatory disclosure under the open records law, Chapter 552, Government Code, except that an applicant or license holder may be furnished a copy of disclosable records regarding that applicant or license holder on request and the payment of a reasonable fee. [Sections 148.055-148.100 reserved for expansion] SUBCHAPTER C. LICENSE REQUIREMENTS

Sec. 148.101. LICENSE REQUIRED. (a) A person may not own, operate, or work at a sexually oriented business unless the person holds a license under this chapter and complies with all public health and occupational health requirements or other requirements adopted by the Executive Commissioner and the Department.

(b) A person may not employ or hire a person to work at, or contract with an independent contractor to work at, a sexually oriented business unless the person employed or the independent contractor entering into the contract holds a license under this chapter.

Sec. 148.102. ISSUANCE OF LICENSE. (a) The department shall issue a sexually oriented business license to an applicant that meets the requirements of this chapter.

(b) The department shall establish separate categories of licenses issued under this chapter for:

(1) an owner or operator of a sexually oriented business; and

(2) an employee of or independent contractor for a sexually oriented business.

Sec. 148.103. FORM OF LICENSE. The department shall determine the form and content of the license.

Sec. 148.104. LICENSE APPLICATION. (a) A license applicant must apply to the department on a form and in the manner the department prescribes. The applicant shall be asked about the applicant's knowledge of public health and occupational health risks known to the applicant or which are relevant to the applicant

(b) The application must be accompanied by a nonrefundable application fee and any other appropriate fees.

Sec. 148.105. ELIGIBILITY FOR LICENSE; INELIGIBILITY FOR CERTAIN PUBLIC HEALTH AND OCCUPATIONAL HEALTH RISKS. (a) To be eligible for a license under this chapter, an applicant must be at least 18 years of age and meet any other requirements approved by the department.

(b) A person is ineligible to be issued a license under this chapter if the person, in the determination of the department, is a public health or occupational health risk. In addition, a person is ineligible to be issued a license if the person has been convicted of a crime of moral turpitude.

Sec. 148.106. LICENSE EXPIRATION AND RENEWAL. (a) The department shall determine the length of a license and the methods and terms of renewal of a license. [Sections 148.107-148.150 reserved for expansion] SUBCHAPTER D. PUBLIC AND OCCUPATIONAL HEALTH PRACTICES BY LICENSE HOLDER

Sec. 148.151. PUBLIC AND OCCUPATIONAL HEALTH CONTINUING EDUCATION. (a) The department shall administer continuing public health and occupational health education programs for its license holders under this chapter. A license holder may not renew the person's license unless the person meets 10 hours of continuing education requirements during each license period.

(b) The continuing education requirements shall include:

(1) information relating to public health and occupational health risks associated with sexually oriented businesses, including the transmission and spread of sexually transmitted and other communicable disease, alcohol abuse, drug abuse, and domestic violence; and

(2) information, presented in the aggregate, relating to current public health and occupational health risks associated with sexually oriented businesses, including the result of relating to the department's most recent finding related to testing and surveillance of public and occupational health risks, including testing for sexually transmitted diseases, other communicable diseases, and alcohol or drug use;

(c) The department shall:

(1) provide to a license applicant, with the application form on which the person is to apply for a license, information describing the continuing education requirements; and

(2) notify each license holder of any change in the continuing education requirements at least one year before the date the change takes effect. [Sections 148.152-148.200 reserved for expansion] SUBCHAPTER E. LICENSE DENIAL AND DISCIPLINARY PROCEDURES

Sec. 148.201. ADMINISTRATIVE SANCTIONS. (a) The department shall revoke, suspend, or refuse to issue or renew a license or shall reprimand a license holder for a violation of this chapter or a rule adopted under this chapter.

(b) The department may place on probation a person whose license is suspended. If a license suspension is probated, the department may require the person:

(1) to report regularly to the department on matters that are the basis of the probation;

(2) to limit business activities to the areas prescribed by the department; or

(3) to continue or review professional education until the person attains a degree of skill satisfactory to the department in those areas that are the basis of the probation.

Sec. 148.202. COMPLAINTS. Any person may file a complaint with the department alleging a violation of this chapter or a rule adopted under this chapter.

Sec. 148.203. PROHIBITED ACTIONS. A license holder may not:

(1) obtain a license by means of fraud, misrepresentation, or concealment of a material fact; or

(3) engage in unprofessional conduct that endangers or is likely to endanger the public health, welfare, or safety of the public as defined by an executive commissioner rule.

Sec. 148.204. MONITORING OF LICENSE HOLDER; RULES. The executive commissioner by rule may develop a system for monitoring a license holder's compliance with this chapter.

Sec. 148.205. PUBLIC HEALTH OR OCCUPATIONAL HEALTH EMERGENCY SUSPENSION. (a) The department or a three-member committee of members designated by the department shall temporarily suspend the license of a license holder if the department or committee determines from the evidence or information presented to it that continued practice by the license holder would constitute a continuing and imminent threat to the public health. [Sections 148.206-148.250 reserved for expansion] SUBCHAPTER F. PENALTIES AND OTHER ENFORCEMENT PROCEDURES

Sec. 148.251. INJUNCTION. The department may apply to a district court in any county for an injunction or another order to restrain the violation of this chapter by a person other than a license holder under this chapter.

Sec. 148.252. CRIMINAL OFFENSE. (a) A person commits an offense if the person violates Section 148.101.

(b) An offense under this section is a Class A misdemeanor.

Sec. 148.253. CIVIL PENALTY. A person who violates Section 148.101 is liable to the state for a civil penalty in an amount not to exceed $1,000 for each violation. Each day a violation occurs is a separate violation.

(b) The department or the attorney general may institute an action in a district court in Travis County or in the county in which the person who is alleged to have violated Section 148.101 resides. [Sections 148.254-148.300 reserved for expansion]

SECTION 2. Except as required by Sections 2 and 3 of this Act, this Act takes effect September 1, 2007.

SECTION 3. Section 148.101 and Subchapters E and F Chapter 148, Health and Safety Code, as added by this Act, take effect September 1, 2008.