H. B. 2709
(By Delegates Love and Prezioso)
[Introduced February 24, 1995; referred to the
Committee on Health and Human Resources
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 the "West Virginia Tanning Facility Permit Act";
defining terms, equipment requirements and operating
standards; requiring inspections and permits for each
tanning facility location; enumerating noncompliance
violations and sanctions; and empowering the department of
health and human resources to promulgate rules, further
define penalties and extend due process to aggrieved
applicants or permit holders.
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 article may be cited as the "West Virginia Tanning
Facility Permit Act."
In this article:
"Commissioner" means the commissioner of the bureau of
"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 any payment, by cash, check or otherwise, 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 payment by exchange of goods or
services or anything of value for use of the tanning facility or
"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
lamps or products containing lamps intended for the irradiation
of any part of the living human body for cosmetic or nonmedical
"Ultraviolet radiation" for purposes of this article will be
referred to as follows:
(a) UVA (Ultraviolet A) radiation means radiation in the
wavelength between three hundred twenty to four hundred
nanometers (i.e., one billionth of a meter).
(b) UVB (Ultraviolet B) radiation means radiation in the
wavelength between two hundred sixty to three hundred twenty
(c) UVC (Ultraviolet C) radiation means radiation in the
wavelength between one hundred eighty to two hundred sixty
§16-35-3. Operating permits; fees.
(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
(1) Name, address and telephone number of the owner and of
the operator, if the two identities differ.
(2) Name, address and telephone number of each tanning
(3) Type and year of manufacture of all equipment proposed
to be used as tanning devices.
(4) Primary function of the business in which the tanning facility is located.
(5) A description of operating procedures to be used in the
(6) Any other information required by the department.
(b) A fee of seventy-five dollars shall be submitted with
each facility's initial application to the department.
(c) If the owner or operator owns or operates more than one
tanning facility, which includes ownership or operation at more
than one location, the owner or operator shall file a separate
application for each facility.
(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 and any other standards set by the
(e) Upon submission of the application and the required fee,
and if the department determines from an initial inspection that
the premises and the tanning facilities are installed and will be
operated in accordance with the requirements of 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
(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 owner or operator, the new
owner or operator shall apply for a facility permit within thirty
days after taking possession of the property. A fee of
seventy-five dollars shall accompany the new owner or operator's
initial application for a permit.
(i) In the event that a current permit holder changes the
location of a permitted facility, the owner or operator shall
file a new application with the department accompanied by a fee
of fifty dollars.
§16-35-4. Permit renewals; fees; 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, of a permit renewal application and an annual renewal fee
of 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 is granted
§16-35-5. Equipment standards.
(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 this
article and by the department by rule. Tanning units and all
their component parts which are 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 two
hundred nanometers through two hundred sixty nanometers to the
irradiance within the wavelength range of greater than two
hundred sixty nanometers through four hundred nanometers may not
exceed three one-thousandths 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.
Such timing device shall be accessible only by the operator and
not by the consumer and may not provide a timing interval in
excess of the manufacturer's recommended maximum exposure time.
This requirement does not preclude the ability of the consumer to
request the operator 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 consumer to manually terminate radiation
without pulling the electrical plug or coming in contact with the
(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. Owners or operators are required to provide eyewear
for consumers that meet or exceed the manufacturer's
(f) Each ultraviolet lamp contained within the sunlamp
product shall be shielded so as to not come into contact with the
consumer. A screen or transparent cover shall be used for this
(g) Each sunlamp product in which a person is in a standing
position shall provide a handrail for the consumer to hold onto
during operation or use of tanning facility. Each tanning
facility shall have, clearly marked, the appropriate position the
consumer is to assume prior to operation.
(h) Each sunlamp product shall prominently display the following warnings: "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." The following informational lists also shall be
posted on, or within three feet of, each sunlamp product: (1)
"PHOTOSENSITIZERS - Agents which may cause photosensitivity
reactions" and (2) "SUN REACTIVE SKIN TYPES."
(i) The bulb in each sunlamp product must be replaced
according to the manufacturer's specifications including, but not
limited to, bulbs that are defective, damaged or exceed the
manufacturer's recommended hour usage.
(j) Each tanning facility shall be equipped to dissipate
heat so that the interior temperature does not exceed one hundred
degrees fahrenheit or thirty-four degrees centigrade.
§16-35-6. Operating requirements; rule making.
(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
(1) The operator shall require each person desiring to use
the 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 not permit any person under the age
of eighteen years to use the tanning facility without having a
signed and dated written consent of a parent or guardian on file.
Such written consent, which must be newly signed and dated
annually, shall be kept as a permanent record of the individual's
attendance and progress.
(3) The operator shall require each person desiring to use
a tanning facility to use protective eyewear.
(4) The operator shall instruct the consumer 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.
(5) The operator shall monitor the use of the facility to
ensure that the interior temperature does not exceed one hundred
degrees fahrenheit or thirty-four degrees centigrade.
(6) The operator shall inspect the facility to ensure that
the floors are dry. The floors are to be made dry prior to each
(7) 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.
(8) The operator shall be responsible for proper sanitizing
procedures for all sunlamp equipment between every consumer.
(b) The department shall promulgate standards for tanning
facilities operated in the state and 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 and revoked, or a permit
renewal 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 or consumer information which may include, but not be
limited to, claiming that the use of a tanning device is safe or
free from risk. The record of conviction, or a certified copy
thereof, shall be conclusive evidence of such a 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 a permit during the
previous five years, where a controlling owner or controlling
combination of owners or any other associate of the current
applicant was affiliated with 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 that sets forth facts
which, if proven, constitute grounds for denial, nonrenewal,
revocation or suspension of a permit, investigate an applicant or
permit holder. The department, after notice in writing and opportunity for hearing, may effect the denial of any initial or
renewal application or the suspension or revocation or any
permit. The written notice shall specify the charges or reasons
for the department's contemplated action. The applicant or
permit holder must request 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) A hearing on the department's decision to deny any
initial or renewal application or to suspend or revoke any permit
shall be conducted by the commissioner, or by 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 may 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 standards required by chapter twenty-nine-a of
(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
§16-35-10. Findings of fact; conclusions of law; 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 a decision, within forty-five days after the termination of
the hearing unless additional time is required 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 suspension or 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, or any law-enforcement agency acting at the request
of the commissioner, has the right to seize the same.
§16-35-12. Due process; 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 the
circuit 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 procedures act; conflict resolution.
The provisions of the West Virginia state administrative
procedures act are hereby expressly adopted and shall apply to
all administrative rules and procedure of the department under
this article, except that in the case of any conflict between the
state administrative procedures act and this article, the
provisions of this article shall control, and except that article
three of the state administrative procedures act relating to
procedures for rule making does not apply to the adoption of any
rules required by federal law in which the department is
precluded from exercising discretion.
§16-35-14. Administrative penalties; fines.
The department is empowered to establish and assess
administrative 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 fine be less than fifty dollars nor more than five thousand dollars.
NOTE: This bill creates the "West Virginia Tanning Facility
Permit Act"; defines equipment and operating standards; requires
owners and operators to obtain permits for each tanning facility
location; details permit application procedures, fees and
sanctions; authorizes the department of health and human
resources to promulgate rules for and regulate tanning
facilities; and delineates due process procedures for aggrieved
applicants and permit holders.
This article is new; therefore, strike-throughs and
underscoring have been omitted.