Senate Bill No. 59

(By Senators Blatnik, Dittmar, Sharpe, Macnaughtan and Craigo)

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[Introduced January 19, 1995; referred to the Committee
on Health and Human Resources; and then to the Committee on Finance.]
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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 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."
§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 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 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 lamps or 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 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 nanometers.
(c) UVC (Ultraviolet C) radiation means radiation in the wavelength between one hundred eighty to two hundred sixty nanometers.
§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 information:
(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 facility.
(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 facility.
(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 department.
(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 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 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 a permit.
§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 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. Owners or operators are required to provide eyewear for consumers that meet or exceed the manufacturer's recommendations.
(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 purpose.
(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 facility:
(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 individual's use.
(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 this code.
(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 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.