Senate Bill No. 383
(By Senators Blatnik, Dittmar and Macnaughtan)
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[Introduced March 17, 1993; referred to the Committee
on Government Organization.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-five,
relating to creating the "West Virginia Tanning Facility
Permit Act"; short title; definitions; authorizing the
secretary of the department of health and human resources to
promulgate rules and issue permits; requiring posted warning
concerning ultraviolet radiation; requiring inspections;
revoking permits; administrative hearings; and civil
penalties.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-five, to
read as follows:
ARTICLE 35. WEST VIRGINIA TANNING FACILITY PERMIT ACT.
§16-35-1. Short title.
This act may be cited as the "West Virginia Tanning Facility
Permit Act."
§16-35-2. Definitions.
In this article:
"Commissioner" means the commissioner of the bureau of
public health.
"Consumer" means any member of the public who is provided
access to a tanning facility in exchange for a fee or other
compensation, or any individual who, in exchange for a fee or
other compensation, is afforded use of a tanning facility as a
condition or benefit of membership or access.
"Department" means the West Virginia department of health
and human resources.
"Fee" means the payment or exchange of goods, or anything of
value for use of the tanning facility or facilities.
"Operator" means the person designated by the licensee for
the facility to assist and instruct the public in the correct
operation of the tanning facility.
"Other compensation" means the payment or exchange of goods,
or anything of value for use of the tanning facility or
facilities.
"Tanning equipment" means sunlamp products and ultraviolet
lamps intended to induce skin tanning through the irradiation of
any part of the living body.
"Tanning facility" or "tanning facilities" means a room or
a booth or group of rooms or booths that houses ultraviolet lampsor products containing lamps intended for the irradiation of any
part of the living human body for cosmetic or nonmedical related
purposes.
"Ultraviolet radiation" for purposes of this article will be
referred to as follows:
(a) UVA (Ultraviolet A) radiation means radiation in the
wavelength between 320 to 400 nanometers (one billionth).
(b) UVB (Ultraviolet B) radiation means radiation in the
wavelength between 260 to 320 nanometers (one billionth).
(b) UVC (Ultraviolet C) radiation means radiation in the
wavelength between 180 to 260 nanometers (one billionth).
§16-35-3. Permit; fees; application.
(a) Prior to the operation of any tanning facility used by
the public for a fee or other compensation, the owner or operator
shall file an application with the department for a permit to
operate the facility. The application shall be on a form
prescribed by the department and shall include the following
information:
(1) Applicant's (owner) name, address, telephone number;
(2) Name of the tanning facility, address, telephone number;
(3) Type and year of manufacture of equipment proposed to be
used for such tanning devices;
(4) Primary function of the business in which the tanning
facility is located;
(5) Operating procedures to be used in the facility.
(b) A fee of two hundred fifty dollars shall be submittedwith the application to the department.
(c) If the owner or operator owns or operates more than one
tanning facility, the owner or operator shall file a separate
application for each facility owned or operated.
(d) Within ninety days of receipt of an application, the
department shall complete the initial inspection of the premises
of the tanning facility and ensure that the premises and the
tanning facilities are installed and will be operated in
accordance with this article.
(e) Upon submission of the application and the required fee,
and if the initial inspection of the premises indicates that the
premises and the tanning facilities are installed and will be
operated in accordance with this article, the department shall
issue a permit to the owner or operator.
(f) The permit issued by the department shall be effective
for one year following the date of issuance. The department may
stagger permit renewal dates on a quarterly basis with an initial
permit being effective from nine months to fifteen months. The
permit is valid only for the location stated on the permit and is
not transferable.
(g) The permit shall be displayed in a place within sight of
the public when entering the premises of the tanning facility.
(h) In the event of a change of ownership, the new owner
will be required to apply for a permit to own and operate a
tanning facility within thirty days after taking possession of
the property.
§16-35-4. Permit renewal procedures; inspection.
(a) All permits issued by the department under this article
shall expire on a specified date and may be renewed by submission
to the department, at least thirty days before the expiration
date, a permit renewal application and the annual renewal fee of
one hundred fifty dollars.
(b) The department may refuse to renew the permit of any
owner or operator who has been found to be in violation of this
article for the safe operation of tanning facilities.
(c) Each tanning facility shall be inspected at least once
each year after the initial year in which the facility was
granted a permit.
§16-35-5. Requirements for permit.
(a) No sunlamp product or ultraviolet lamp intended for use
in any sunlamp product may be installed in any tanning facility,
the use of which is offered to the public for a fee or any other
consideration, unless the products or facilities have been found
to be in compliance with the standards established by the
department by rule. Tanning units and all the component parts
thereof manufactured on or after the seventh day of May, one
thousand nine hundred eighty, shall meet the provisions of
federal regulations. Other performance standards shall apply for
units manufactured before the seventh day of May, one thousand
nine hundred eighty.
(b) For each sunlamp product and ultraviolet lamp, the ratio
of the irradiance within the wavelength range of greater than 200nanometers through 260 nanometers to the irradiance within the
wavelength range of greater than 260 nanometers through 400
nanometers shall not exceed 0.003 at any distance or direction
from the product or lamp.
(c) Each sunlamp shall incorporate a timing device with
multiple timer settings adequate for the manufacturer's
recommended exposure intervals to produce the expected results.
The timing device shall not provide a timing interval in excess
of the product's recommended maximum exposure time, or ten
minutes. This requirement does not preclude the ability of the
user to reset the time. The timer may not automatically reset
and cause radiation emission to resume for a period greater than
the unused portion of the timer cycle when emission from the
sunlamp product has been terminated.
(d) Each sunlamp product shall incorporate a control on the
product to enable the user to manually terminate radiation
without pulling the electrical plug or coming in contact with the
ultraviolet lamp.
(e) Each sunlamp product shall be accompanied by the number
of sets of protective eyewear that is equal to the maximum number
of persons intended to be exposed simultaneously to product
radiation. The eyewear shall be provided by the manufacturer and
shall meet or exceed his product recommendations.
(f) Each ultraviolet lamp contained within the sunlamp
product shall be shielded so as to not come into contact with the
user. A screen or transparent cover shall be used for thispurpose.
(g) Each sunlamp product in which the person is in a
standing position shall provide a handrail for the user to hold
onto during operation of tanning facility. Each tanning facility
shall have, clearly marked, the appropriate position the user is
to assume prior to operation.
(h) Each sunlamp product shall prominently display the
following warning label. "DANGER - Ultraviolet radiation.
Follow instructions. As with natural sunlight, overexposure can
cause eye injury and sunburn, repeated exposure may cause
premature aging of the skin and skin cancer. Medications or
cosmetics applied to the skin may increase your sensitivity to
ultraviolet light. Consult a physician before using lamp if
taking any medication or if you believe yourself especially
sensitive to sunlight."
(i) Each tanning facility shall be so equipped to dissipate
heat that the interior temperature does not exceed 100 degrees
fahrenheit or 34 degrees centigrade.
§16-35-6. Operating requirements; rules.
(a) Each tanning facility shall have on hand at all times an
operator adequately trained in the correct operation of the
facility so as to be able to inform and assist the public in its
proper use. Each operator shall perform the following functions
as a precondition to the public having access to the tanning
facility being made to the public:
(1) The operator shall require each person desiring to usethe facility to fill out a form specifying any and all
prescription medicines and over-the-counter medications they are
presently taking. The form shall be kept as a permanent record
of the individual's attendance and progress;
(2) The operator shall require each person desiring to use
a tanning facility to use protective eyewear;
(3) The operator shall instruct the user in the proper
position to maintain in relation to the tanning lamps within the
facility; the position of the safety railing, if applicable; the
manual switching device to terminate the radiation in case of
emergency; and a recommended time of exposure;
(4) The operator shall monitor the use of the facility to
ensure that the interior temperature does not exceed 100 degrees
fahrenheit or 34 degrees centigrade;
(5) The operator shall inspect the facility to ensure that
the floors are dry. The floors are to be made dry prior to each
individual's use;
(6) The operator shall post signs warning consumers of the
potential effects of radiation on persons taking medication and
the possible relationship of radiation to skin cancer;
(7) The operator shall be responsible for proper sanitizing
procedures for all sunlamp equipment between every user.
(b) The department shall promulgate standards for tanning
facilities operated in the state. The department shall issue
rules considered necessary for the proper regulation of tanning
facilities.
§16-35-7. Denial; suspension; revocation; nonrenewal of permits.
A permit may be denied, suspended, revoked, or the renewal
of a permit may be denied for any of the following reasons:
(a) Violation of any of the provisions of this article or
the rules adopted by the department hereunder;
(b) Conviction of an applicant or permit holder of an
offense arising from false, fraudulent, deceptive or misleading
advertising. The record of conviction or a certified copy shall
be conclusive evidence of the conviction;
(c) Revocation of a permit during the previous five years,
or surrender or expiration of the permit during the pendency of
action by the department to revoke or suspend the permit during
the previous five years, if before the permit was issued to the
individual applicant, a controlling owner or controlling
combination of owners of the applicant; or any affiliate of the
individual applicant or controlling owner of the applicant or
affiliate of the applicant was a controlling owner of the prior
permit.
§16-35-8. Investigation; hearing; notice.
The department may, upon its own motion, and shall upon the
verified complaint in writing of any person setting forth facts
which if proven would constitute grounds for the denial of an
application for a permit, or refusal to renew a permit, or
revocation of a permit, or suspension of a permit, investigate
the applicant or permit holder. The department, after notice and
opportunity for hearing, may deny any application for or suspendor revoke a permit or may refuse to renew a permit. Before
denying an application, or refusing to renew a permit, suspending
or revoking a permit, the department shall notify the applicant
in writing. The notice shall specify the charges or reasons for
the department's contemplated action. The applicant or permit
holder must require a hearing within ten days of receipt of the
notice. Failure to request a hearing within ten days shall
constitute a waiver of the right to a hearing.
§16-35-9. Conduct of hearing.
(a) The hearing shall be conducted by the commissioner, or
an individual designated in writing by the commissioner as a
hearing officer. The commissioner or hearing officer may compel
by subpoena or subpoena duces tecum the attendance and testimony
of witnesses and the production of books and papers, and
administer oaths to witnesses. The hearing shall be conducted at
a place designated by the department. The procedures governing
hearings and the issuance of final orders under this article
shall be in accordance with rules adopted by the department.
(b) All subpoenas issued by the commissioner or hearing
officer may be served as provided in civil actions. The fees of
witnesses for attendance and travel shall be the same as the fees
for witnesses before the circuit court and shall be paid by the
party to the proceedings at whose request the subpoena is issued.
If a subpoena is issued at the request of the department, the
witness fee shall be paid as an administrative expense.
(c) In cases of refusal of a witness to attend or testify,or to produce books or papers, concerning any matter upon which
he might be lawfully examined, the circuit court of the county
wherein the hearing is held, upon application of any party to the
proceedings, may compel obedience by proceeding as for contempt
as in cases of a like refusal to obey a similar order of the
court.
§16-35-10. Findings of fact; conclusions of laws; decision.
The commissioner or hearing officer shall make findings of
fact and conclusions of law in a hearing, and the commissioner
shall render his decision, or the hearing officer his proposal
for decision within forty-five days after the termination of the
hearing unless additional time is required by him or her for a
proper disposition of the matter. A copy of the final decision
of the director shall be served upon the applicant or permit
holder in person or by certified mail.
§16-35-11. Surrender of permit.
Upon the revocation of a permit, a permit holder shall be
required to surrender the permit to the department, and, upon his
or her failure or refusal to do so, the department has the right
to seize the same.
§16-35-12. Review under state administrative procedures law;
venue; costs.
All final administrative decisions of the department under
this article are subject to judicial review under the provisions
of chapter twenty-nine-a of this code.
Proceedings for judicial review shall be commenced in thecircuit court of the county in which the party applying for
review resides: Provided, That if the party is not a resident of
this state, the venue shall be in Kanawha County.
The department shall not be required to certify any record
or file any answer or otherwise appear in any proceeding for
judicial review unless the party filing the complaint deposits
with the clerk of the court the sum of ninety-five cents per page
representing costs of certification of the record or file.
Failure on the part of the plaintiff to make the deposit shall be
grounds for dismissal of the action.
§16-35-13. Administrative procedure act; application.
The provisions of the West Virginia state administrative
procedure act are hereby expressly adopted and shall apply to all
administrative rules and procedure of the department under this
article, except that in case of conflict between the state
administrative procedure act and this article the provisions of
this article shall control, and except that article three of the
state administrative procedure act relating to procedures for
rule making does not apply to the adoption of any rules required
by federal law in connection with which the department is
precluded by law from exercising any discretion.
§16-35-14. Penalties; fines.
The department is empowered to establish and assess
penalties or fines against a permit holder for violations of this
article or rules adopted under this article. In no circumstance
may any penalties or fines exceed one thousand dollars per dayfor each day the permit holder remains in violation.
NOTE: This bill creates the "West Virginia Tanning Facility
Permit Act" and authorizes the department of health and human
resources to regulate tanning facilities.
This article is new; therefore, strike-throughs and
underscoring have been omitted.