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.