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2005 Texas Health & Safety Code CHAPTER 145. TANNING FACILITIES
HEALTH & SAFETY CODE CHAPTER 145. TANNING FACILITIES § 145.001. SHORT TITLE. This chapter may be cited as the Tanning Facility Regulation Act. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. § 145.002. DEFINITIONS. In this chapter: (1) "Authorized agent" means an employee of the department designated by the commissioner to enforce this chapter. (2) "Fitzpatrick scale" means the following scale for classifying a skin type, based on the skin's reaction to the first 10 to 45 minutes of sun exposure after the winter season:Skin Type Sunburning and Tanning History 1 Always burns easily; never tans 2 Always burns easily; tans minimally 3 Burns moderately; tans gradually 4 Burns minimally; always tans well 5 Rarely burns; tans profusely 6 Never burns; deeply pigmented. (4) "Operator" means an owner of a tanning facility or an agent of an owner of a tanning facility. (5) "Person" means an individual, partnership, corporation, or association. (6) "Phototherapy device" means a piece of equipment that emits ultraviolet radiation and is used by a health care professional in the treatment of disease. (7) "Tanning device" means a device under Section 431.002 and includes any equipment, including a sunlamp, tanning booth, and tanning bed, that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers and is used for the tanning of human skin. The term also includes any accompanying equipment, including protective eyewear, timers, and handrails. (8) "Tanning facility" means a business that provides persons access to or use of tanning devices. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 1, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, § 1, eff. Sept. 1, 2001. § 145.003. EXEMPTION. This chapter does not apply to a phototherapy device used by or under the supervision of a licensed physician trained in the use of phototherapy devices. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. § 145.004. COMPLIANCE WITH LAW. (a) A tanning device used by a tanning facility must comply with all applicable federal and state laws and regulations. (b) The Texas Department of Health may enforce Chapter 431 against a person who adulterates or misbrands a tanning device. The department may investigate a person accused of adulterating or misbranding a tanning device. For the purposes of this subsection, a tanning device is adulterated or misbranded if the tanning device would be an adulterated or misbranded device under Section 431.111 or 431.112, Health and Safety Code. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 2, eff. June 15, 1995. § 145.005. CUSTOMER NOTICE; LIABILITY. (a) A tanning facility shall give each customer a written statement warning that: (1) failure to use the eye protection provided to the customer by the tanning facility may result in damage to the eyes; (2) overexposure to ultraviolet light causes burns; (3) repeated exposure may result in premature aging of the skin and skin cancer; (4) abnormal skin sensitivity or burning may be caused by reactions of ultraviolet light to certain: (A) foods; (B) cosmetics; or (C) medications, including: (i) tranquilizers; (ii) diuretics; (iii) antibiotics; (iv) high blood pressure medicines; or (v) birth control pills; (5) any person taking a prescription or over-the-counter drug should consult a physician before using a tanning device; (6) a person with skin that always burns easily and never tans should avoid a tanning device; and (7) a person with a family or past medical history of skin cancer should avoid a tanning device. (b) Compliance with the notice requirement does not affect the liability of a tanning facility operator or a manufacturer of a tanning device. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 473, § 2, eff. Sept. 1, 2001. § 145.006. WARNING SIGNS. (a) A tanning facility shall post a warning sign in a conspicuous location where it is readily visible by persons entering the establishment. The board by rule shall specify the size, design, and graphic design of the sign. The sign must have dimensions of at least 11 inches by 17 inches and must contain the following wording: Repeated exposure to ultraviolet radiation may cause chronic sun damage characterized by wrinkling, dryness, fragility, bruising of the skin, and skin cancer.DANGER: ULTRAVIOLET RADIATION Failure to use protective eyewear may result in severe burns or permanent injury to the eyes. Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medications, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women taking oral contraceptives who use this product may develop discolored skin. A customer may call the Texas Department of Health at (insert toll-free telephone number) to report an alleged injury regarding this tanning facility.IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP. (b) A tanning facility operator shall also post a warning sign at each tanning device in a conspicuous location that is readily visible to a person about to use the device. The board by rule shall specify the size, design, and graphic design of the sign. The sign must have dimensions of at least 11 inches by 17 inches and must contain the following wording:DANGER: ULTRAVIOLET RADIATION 1. Follow the manufacturer's instructions for use of this device. 2. Avoid too frequent or lengthy exposure. As with natural sunlight, exposure can cause serious eye and skin injuries and allergic reactions. Repeated exposure may cause skin cancer. 3. Wear protective eyewear. Failure to use protective eyewear may result in severe burns or permanent damage to the eyes. 4. Do not sunbathe before or after exposure to ultraviolet radiation from sunlamps. 5. Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medication, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women using oral contraceptives who use this product may develop discolored skin. A customer may call the Texas Department of Health at (insert toll-free telephone number) to report an alleged injury regarding this tanning device.IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF THIS DEVICE. (c) The Texas Department of Health shall 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. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 3, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, § 3, eff. Sept. 1, 2001. § 145.007. PROHIBITED CLAIMS ABOUT SAFETY. A tanning facility operator may not claim or distribute promotional materials that claim that using a tanning device is safe or free from risk or that using a tanning device will result in medical or health benefits. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 4, eff. June 15, 1995. § 145.008. OPERATIONAL REQUIREMENTS. (a) A tanning facility shall have an operator present during operating hours. The operator must: (1) be sufficiently knowledgeable in the correct operation of the tanning devices used at the facility; (2) instruct, inform, and assist each customer in the proper use of the tanning devices; (3) complete and maintain records required by this chapter; and (4) explain or otherwise inform each customer initially using the tanning facility of: (A) the potential hazards of and protective measures necessary for ultraviolet radiation; (B) the requirement that protective eyewear be worn while using a tanning device; (C) the possibility of photosensitivity or of a photoallergic reaction to certain drugs, medicine, or other agents when a person is subjected to the sun or ultraviolet radiation; (D) the correlation between skin type and exposure time; (E) the maximum exposure time to the facility's devices; (F) the biological process of tanning; and (G) the dangers of and the necessity to avoid overexposure to ultraviolet radiation. (b) Before each use of a tanning device, the operator shall provide with each device clean and properly sanitized protective eyewear that protects the eyes from ultraviolet radiation and allows adequate vision to maintain balance. The protective eyewear shall be located in the immediate area of each tanning device and shall be provided without charge to each user of a tanning device. The operator may not allow a person to use a tanning device if that person does not use protective eyewear that meets the requirements of the United States Food and Drug Administration. The operator also shall show each customer how to use suitable physical aids, such as handrails and markings on the floor, to maintain proper exposure distance as recommended by the manufacturer of the tanning device. (c) The tanning facility operator shall clean and properly sanitize the body contact surfaces of a tanning device after each use of the tanning device. (d) The tanning facility shall use a timer with an accuracy of at least plus or minus 10 percent of the maximum timer interval of the tanning device. The operator shall limit the exposure time of a customer on a tanning device to the maximum exposure time recommended by the manufacturer. A timer shall be located so that a customer cannot set or reset the customer's exposure time. The operator shall control the temperature of the customer contact surfaces of a tanning device and the surrounding area so that it may not exceed 100 degrees Fahrenheit. (e) Before a customer who is 18 years of age or older uses a tanning facility's tanning device for the first time and each time a person executes or renews a contract to use a tanning facility, the person must provide photo identification and sign a written statement acknowledging that the person has read and understood the required warnings before using the device and agrees to use protective eyewear. (f) To ensure the proper operation of the tanning equipment, a tanning facility may not allow a person younger than 13 years of age to use a tanning device unless: (1) the facility receives written permission from the person's physician allowing the person to use the device; and (2) the person's parent or legal guardian remains at the tanning facility while the person uses the device. (g) Before any person 16 or 17 years of age uses a tanning facility device for the first time, the person must give the operator a written informed consent statement signed and dated by the person's parent or legal guardian stating that the parent or legal guardian has read and understood the warnings given by the tanning facility, consents to the minor's use of a tanning device, and agrees that the minor will use protective eyewear. In addition, a person 13, 14, or 15 years of age must be accompanied by a parent or legal guardian who must remain at the tanning facility while the person uses the tanning device. (h) When a tanning device is in use by a person, another person may not be allowed in the area of the tanning device. (i) A record of each customer using a tanning device shall 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. The board by rule shall prescribe the form and content of the records. The record shall include: (1) the date and time of the customer's use of a tanning device; (2) the length of time the tanning device was used; (3) any injury or illness resulting from the use of a tanning device; (4) any written informed consent statement required to be signed under Subsection (e); (5) the customer's skin type, as determined by the customer by using the Fitzpatrick scale for classifying a skin type; (6) whether the customer has a family history of skin cancer; and (7) whether the customer has a past medical history of skin cancer. (j) An operator shall keep an incident log at each tanning facility. The log shall be maintained at the tanning facility at least until the third anniversary of the date of an incident. The board by rule shall prescribe the form and content of the log. The log shall include each: (1) alleged injury; (2) use of a tanning device by a customer not wearing protective eyewear; (3) mechanical problem with a tanning device; and (4) customer complaint. (k) The Texas Department of Health shall provide to each applicant for an original or renewal license a written copy of the Fitzpatrick scale. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 5, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, § 4, eff. Sept. 1, 2001. § 145.009. LICENSES. (a) A person may not operate a tanning facility unless the person holds a license issued by the department to operate the facility. Unless revoked or suspended, a license is valid until the first anniversary of the date the license was issued. A separate license is required for each tanning facility. (b) The license shall be displayed in an open public area of the tanning facility. (c) The board annually shall renew licenses after application for renewal is made on forms provided by the department for this purpose and after receipt of renewal fees. (d) The department by rule may adopt a system under which licenses expire on various dates during the year. As part of this system the license fees and the annual renewal fees may be prorated on a monthly basis to reflect the actual number of months the license is valid. (e) The department may revoke, suspend, suspend on an emergency basis, or probate by an emergency order of the commissioner, or the commissioner's designee a license to operate a tanning facility for: (1) a failure to pay a license fee or an annual renewal fee for a license; (2) an applicant's acquisition or attempted acquisition of a license by fraud or deception; (3) a violation of this chapter; (4) a violation of a rule of the department adopted under this chapter; or (5) a violation of an order issued under this chapter. (f) A license issued under this chapter shall be returned to the department if the tanning facility: (1) ceases to operate as a business permanently; (2) changes the ownership of the tanning facility; (3) changes the location of the tanning facility; or (4) changes the name of the business under which the tanning facility operates. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 6, eff. June 15, 1995. § 145.0095. ISSUANCE OF LICENSE FOR CERTAIN FACILITIES PROHIBITED. (a) The department may not issue or renew a license under Section 145.009 with respect to a facility that: (1) is operated under a license or permit as a sexually oriented business issued in accordance with Section 243.007, Local Government Code; (2) offers, as its primary business, a service or the sale, rental, or exhibition of a device or other item that is intended to provide sexual stimulation or sexual gratification to a customer; or (3) is owned or operated by a person who has been convicted of an offense under Chapter 21 or 43, Penal Code, or Section 71.02(a)(3), Penal Code. (b) The department shall revoke a license issued with respect to a facility if the license may not be renewed under Subsection (a). (c) For purposes of this section, a person has been convicted of an offense if the person receives community supervision for the offense after sentence is imposed or after the person enters a plea of guilty or nolo contendere and is placed on deferred adjudication. Added by Acts 1995, 74th Leg., ch. 684, § 7, eff. June 15, 1995. § 145.0096. CERTAIN ADVERTISING PROHIBITED. (a) A business described by Section 145.0095(a)(1) or (2) may not use the word "tan" or "tanning" in a sign or any other form of advertising. (b) A person commits an offense if the person violates Subsection (a). Except as provided by Subsection (c), an offense under this subsection is a Class C misdemeanor. (c) If it is shown on the trial of an offense under Subsection (b) that the person has previously been convicted of an offense under that subsection, the offense is a Class A misdemeanor. Added by Acts 1995, 74th Leg., ch. 684, § 7, eff. June 15, 1995. § 145.010. FEES. (a) The board shall collect a fee for: (1) a license issued or renewed; or (2) a license that is modified. (b) The board may charge prorated or annual fees. (c) The board by rule shall set the fees in amounts that allow the department to recover not less than 50 percent of the costs to the department in: (1) reviewing and acting on a license application; (2) modifying or renewing a license; (3) inspecting a licensed facility; and (4) implementing and enforcing this chapter or rules relating to this chapter. (d) The department shall 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. The remainder of the license fees collected shall be used to administer this chapter. (e) A license fee received by the department shall be deposited in the state treasury to the credit of the food and drug registration fund. The fees are dedicated to the department for the administration and enforcement of this chapter. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 8, eff. June 15, 1995. § 145.011. RULES; INSPECTION. (a) The board may adopt rules as necessary to implement this chapter. (b) The commissioner or an authorized agent may inspect a tanning facility at any reasonable time to determine compliance with this chapter. (c) A person who is required to maintain records under this chapter or a person in charge of the custody of those records shall, at the request of an authorized agent or health authority, permit the authorized agent or health authority access to copy or verify the records at reasonable times. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 9, eff. June 15, 1995. § 145.012. EMERGENCY ORDER. (a) The commissioner or the commissioner's designee may issue an emergency order relating to the operation of a tanning facility in the department's jurisdiction if the commissioner or the commissioner's designee determines that: (1) operation of the tanning facility creates or poses an immediate and serious threat to human life or health; and (2) other procedures available to the department to remedy or prevent the threat will result in unreasonable delay. (b) The commissioner or the commissioner's designee may issue an emergency order without notice or a hearing if the commissioner or the designee determines notice or a hearing is not practical under the circumstances. (c) If an emergency order is issued without a hearing, the department shall determine a time and place for a hearing at which the emergency order is affirmed, modified, or set aside. The hearing shall be held under rules of the department. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 10, eff. June 15, 1995. § 145.0121. CIVIL PENALTY; INJUNCTION. (a) If it appears that a person has violated or is violating this chapter or an order issued or a rule adopted under this chapter, the commissioner may request the attorney general or the district or county attorney or the municipal attorney of a municipality in the jurisdiction where the violation is alleged to have occurred or may occur to institute a civil suit for: (1) an order enjoining the violation; (2) a permanent or temporary injunction, a temporary restraining order, or other appropriate remedy if the department shows that the person has engaged in or is engaging in a violation; (3) the assessment and recovery of a civil penalty; or (4) both injunctive relief and a civil penalty. (b) A civil penalty may not exceed $25,000 a day for each violation. Each day the violation occurs constitutes a separate violation for the purposes of the assessment of a civil penalty. (c) In determining the amount of the civil penalty, the court hearing the matter shall consider: (1) the person's history of previous violations; (2) the seriousness of the violation; (3) the hazard to the health and safety of the public; (4) the demonstrated good faith of the person charged; and (5) any other matter as justice may require. (d) Venue for a suit brought under this section is the municipality or county in which the violation occurred or in Travis County. (e) A civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to the local government. (f) The commissioner or the attorney general may each recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the commissioner under this section shall be used for the administration and enforcement of this chapter. The expenses recovered by the attorney general shall be used by the attorney general. Added by Acts 1995, 74th Leg., ch. 684, § 11, eff. June 15, 1995. § 145.0122. ADMINISTRATIVE PENALTY. (a) The board or the board's designee may impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (b) The penalty for a violation may be in an amount not to exceed $25,000. Each day a violation continues or occurs is a separate violation for purposes of imposing an administrative penalty. (c) The amount of the penalty shall be based on: (1) the person's history of previous violations; (2) the seriousness of the violation; (3) the hazard the violation caused or will cause to the health and safety of the public; (4) the demonstrated good faith of the person charged with a violation; and (5) any other matter that justice may require. (d) If the commissioner or the commissioner's designee determines a violation has occurred, the commissioner or the commissioner's designee may issue to the board or the board's designee a report that states the facts on which the determination is based and the commissioner's or the designee's recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty. (e) Within 14 days after the date the report is issued, the commissioner or the commissioner's designee shall give written notice of the report to the person. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (f) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the commissioner or the commissioner's designee or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (g) If the person accepts the determination and recommended penalty of the commissioner or the commissioner's designee, the board by order shall approve the determination and impose the recommended penalty. (h) If the person requests a hearing or fails to respond timely to the notice, the commissioner or the commissioner's designee shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the department. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may find that a violation has occurred and impose a penalty or may find that no violation occurred. (i) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (j) Within 30 days after the date the board's order becomes final as provided by Section 2001.144, Government Code, the person shall: (1) pay the amount of the penalty; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or (3) without paying the amount of the penalty, file a petition for judicial review in a district court in Travis County contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (k) Within the 30-day period, a person who acts under Subsection (j)(3) may: (1) stay enforcement of the penalty by: (A) paying the amount of the penalty to the court for placement in an escrow account; or (B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the board's order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the commissioner by certified mail. (l) If the commissioner receives a copy of an affidavit under Subsection (k)(2), the commissioner may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and give a supersedeas bond. (m) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the commissioner may refer the matter to the attorney general for collection of the amount of the penalty. (n) Judicial review of the order of the board: (1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and (2) is under the substantial evidence rule. (o) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed. (p) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount. (q) A penalty collected under this section shall be remitted to the comptroller for deposit in the general revenue fund. (r) All proceedings under this section are subject to Chapter 2001, Government Code. Added by Acts 1995, 74th Leg., ch. 684, § 11, eff. June 15, 1995. § 145.013. CRIMINAL PENALTY. (a) A person, other than a customer, commits an offense if the person violates this chapter or a rule adopted under this chapter. (b) An offense under this chapter is a Class A misdemeanor. Added by Acts 1991, 72nd Leg., ch. 14, § 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, § 12, eff. June 15, 1995. § 145.015. TOLL-FREE NUMBER. The department shall maintain a toll-free telephone number that a customer may call to report an alleged injury regarding a tanning device or incurred at a tanning facility. Added by Acts 2001, 77th Leg., ch. 473, § 5, eff. Sept. 1, 2001. § 145.016. DISCLOSURE OF RECORD PROHIBITED; EXCEPTION. (a) Except as provided by Subsection (b), an operator or other person may not disclose a customer record required by Section 145.008(i). (b) An operator or other person may disclose a customer record: (1) if the customer, or a person authorized to act on behalf of the customer, requests the record; (2) if the commissioner or an authorized agent or health authority requests the record under Section 145.011; (3) if the customer consents in writing to the disclosure to another person; (4) in a criminal proceeding in which the customer is a victim, witness, or defendant; (5) if the record is requested in a criminal or civil proceeding by court order or subpoena; or (6) as otherwise required by law. Added by Acts 2001, 77th Leg., ch. 473, § 6, eff. Sept. 1, 2001.
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