Bill Text: GA HB853 | 2009-2010 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Tanning Facilities Regulation Act; enact

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Engrossed - Dead) 2010-03-30 - Senate Read and Referred [HB853 Detail]

Download: Georgia-2009-HB853-Comm_Sub.html

---

10 LC 33 3710ERS

The House Committee on Health and Human Services offers the following substitute to HB 853:

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 38 of Title 31 of the Official Code of Georgia Annotated, relating to tanning facilities, so as to add and revise certain definitions; to provide for warnings posted in tanning facilities; to provide for licensure and inspection of tanning facilities; to provide for rules for operation of tanning facilities; to provide for inspections by county boards of health; to provide for inspection fees; to provide for penalties; to provide for other related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 38 of Title 31 of the Official Code of Georgia Annotated, relating to tanning facilities, is amended by revising Code Section 31-38-1, relating to definitions relative to tanning facilities, as follows:

"31-38-1.

As used in this chapter, the term:

(1) 'CFR' means Code of Federal Regulations.

(1.1) 'Consumer' means any individual who is provided access to a tanning facility as defined in this chapter.

(1.2) 'Fitzpatrick Scale' means a scale based on skin types and sunburning and tanning history for classifying a skin type based on the skin's reaction to the first ten to 45 minutes of sun exposure after the winter season as follows:

(A) Always burns easily, never tans: I;

(B) Always burns easily, tans minimally: II;

(C) Burns moderately, tans gradually: III;

(D) Burns minimally, always tans well: IV;

(E) Rarely burns, tans profusely: V; and

(F) Never burns, deeply pigmented: VI.

(2) 'Individual' means any human being.

(3) 'Operator' means any individual designated by the tanning facility owner or tanning equipment lessee to operate or to assist and instruct the consumer in the operation and use of the tanning facility or tanning equipment.

(4) 'Person' means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, political subdivision of this state, any other state, or political subdivision or agency thereof, and any legal successor, representative, agent, or agency of these entities.

(4.1) 'Tanning booth' means any enclosed or semi-enclosed structure, whether vertical or horizontal, that is or contains a tanning device.

(4.2) 'Tanning device' means ultraviolet or other lamps and equipment containing such lamps intended to induce skin tanning through the irradiation of any part of the living human body with ultraviolet radiation.

(5) 'Tanning equipment' means ultraviolet or other lamps and equipment containing such lamps intended to induce skin tanning through the irradiation of any part of the living human body with ultraviolet radiation. any tanning device and any accompanying equipment, such as protective eyewear, timers, and handrails. The term shall not include any of the following:

(A) Phototherapy devices utilized by appropriate health care professionals under the direct supervision of a physician who is trained in the use of phototherapy devices;

(B) Devices used for personal use in a private residence; and

(C) Devices intended for purposes other than the irradiation of human skin.

(6) 'Tanning facility' means any location, place, area, structure, or business or a part thereof which provides consumers access to tanning equipment. 'Tanning facility' includes, but is not limited to, tanning salons, health clubs, apartments, or condominiums regardless of whether a fee is charged for access to the tanning equipment.

(7) 'Ultraviolet radiation' means electromagnetic radiation with wavelengths in air between 200 nanometers and 400 nanometers."

SECTION 2.

Said chapter is further amended by revising Code Section 31-38-4, relating to warning sign to be posted and contents of warning sign, as follows:

"31-38-4.

(a) The facility owner or operator shall conspicuously post the warning sign described in subsection (b) of this Code section within three feet of each tanning station and in such a manner that the sign is clearly visible, not obstructed by any barrier, equipment, or other object, and can be easily viewed by the consumer before energizing the tanning equipment.

(b) The warning sign required in subsection (a) of this Code section shall use upper and lower case letters which are at least two inches and one inch in height, respectively, and shall have the following wording:

'DANGER - ULTRAVIOLET RADIATION

-Follow instruction.

-Avoid overexposure. As with natural sunlight, overexposure can cause eye and skin injury and allergic reactions. Repeated exposure may cause premature aging of the skin and skin cancer.

-Wear protective eyewear.

FAILURE TO USE PROTECTIVE EYEWEAR MAY RESULT IN SEVERE BURNS OR LONG-TERM INJURY TO THE EYES.

-Medications or cosmetics may increase your sensitivity to the ultraviolet radiation. Consult a physician before using sunlamp or tanning equipment if you are using medications or have a history of skin problems or believe yourself to be especially sensitive to sunlight.

-If you do not tan in the sun, you are unlikely to tan from the use of this product.

MAXIMUM EXPOSURE AT ANY ONE
SESSION SHOULD NEVER EXCEED 15 MINUTES.

According to the research and clinical experience of the American Academy of Dermatology, excessive or improper exposure to ultraviolet light can cause harmful changes in the skin and other organs, including skin cancer, cataracts, impairment of the immune system, premature aging, and photosensitivity. These are virtually the same risks associated with outdoor tanning. Do not sunbathe before or after exposure to ultraviolet radiation from sunlamps. Women who are pregnant or are taking oral contraceptives who use this device may develop discolored skin.

A consumer may call the Department of Community Health at (insert telephone number) to report an alleged injury regarding this tanning facility.'

(c) Each consumer shall be provided with a written warning statement requiring his or her signature prior to initial exposure and before renewals of contracts. The warning statement shall include all of the following information:

(1) Failure to use the eye protection provided to the consumer by the tanning facility may result in damage to the eyes;

(2) Overexposure to ultraviolet radiation produced by the tanning devices causes burns;

(3) Repeated exposure to the ultraviolet radiation produced by the tanning devices may result in premature aging of the skin, skin cancer, or both;

(4) Abnormal skin sensitivity to ultraviolet radiation or burning may be caused by reactions to certain foods, cosmetics, or medication. Such medication includes, but is not limited to, tranquilizers, diuretics, antibiotics, high blood pressure medicine, and 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 or never tans should avoid using a tanning device; and

(7) A person with a family or past medical history of skin cancer should avoid using a tanning device.

(d) Not later than September 1, 2010, the department shall post an approved example of the warning statement required by subsection (c) of this Code section on the department's Internet website in a form that is easily downloaded and printed by a tanning facility owner or operator.

(e) A record of each consumer using a tanning device shall be maintained at the tanning facility for at least three years after the date of the consumer's last use of a tanning device. The department by rule shall prescribe the form and content of the record. The record shall include:

(1) Any injury or illness resulting from the use of a tanning device; and

(2) The consumer's skin type, as determined by the consumer by using the Fitzpatrick Scale for classifying a skin type."

SECTION 3.

Said chapter is further amended by adding new Code sections to read as follows:

"31-38-4.1.

(a) No person shall establish, maintain, or operate a tanning facility without first having obtained a license issued by the department.

(b) A person may apply for a license required under subsection (a) of this Code section by submitting an application to the department on a form prescribed by the department. The form shall require all of the following information:

(1) The name, address, and telephone number of the tanning facility and owner;

(2) The manufacturer, model number, and type of each ultraviolet lamp or tanning device used in the tanning facility;

(3) The name of the equipment supplier, installer, and service agent of each ultraviolet lamp or tanning device used in the tanning facility;

(4) A signed and dated certification that the applicant has read and understands the requirements of this chapter;

(5) A copy of the operating and safety procedures of the tanning facility; and

(6) Any additional information required by the department.

(c) The department shall issue a license to an applicant upon determination that the applicant meets all of the requirements of this chapter.

(d) An applicant shall be required to pay an annual license fee of $25.00 per tanning facility and an additional license fee of $15.00 per tanning device owned, leased, or otherwise used by the tanning facility.

(e) A licensee shall post its license in a location clearly visible to its consumers.

(f) A license shall expire annually on the date specified in the license.

(g) A licensee shall file an application for renewal on a form prescribed by the department prior to expiration of its current license.

(h) The department may conduct an initial inspection, after receipt of an application for a license under this chapter and before the license is granted, of a tanning facility and may inspect such facility annually thereafter. Inspections conducted by the department pursuant to this subsection may encompass any or all of the following matters:

(1) The operation of the tanning facility;

(2) Review of required records and training documentation;

(3) Operator understanding and competency; and

(4) Any other area concerning a requirement of this chapter.

31-38-4.2.

(a)(1) Except as provided in paragraph (2) of this subsection, an operator shall be present when tanning equipment is operated.

(2) The presence of an operator shall not be required when tanning equipment is operated if:

(A) Access to the tanning equipment is controlled by security measures designed to permit access only by persons 18 years of age or older who:

(i) Have been previously instructed, examined, and advised of maximum exposures pursuant to subsections (c) and (d) of this Code section;

(ii) Have used a tanning device at the facility on at least three prior occasions with an operator on the premises; and

(iii) Have access to an intercom or buzzer attended by an operator remotely or to an emergency response device such that emergency assistance and personnel can be summoned promptly; and

(B) The absence of an on-premises operator is clearly indicated by warning signs posted at the entrance to the tanning facility and in each tanning booth.

(b) The tanning equipment shall have a control that enables the consumer to manually terminate radiation without pulling the electrical plug or coming in contact with the ultraviolet lamp or other tanning device.

(c) Operators shall instruct consumers in all of the following:

(1) The proper position to maintain relative to the equipment;

(2) The position of the safety railing, if applicable;

(3) The operation of the manual switching device to terminate radiation; and

(4) The maximum time of exposure.

(d) Operators must be able to recognize the skin type of the consumer based on the Fitzpatrick Scale and advise the customer accordingly regarding maximum time of exposure.

(e) Contact surfaces of tanning devices shall be cleansed by the tanning facility or by the consumer when an operator is not present between uses with a cleansing agent approved by the department. After cleansing each time, a visible sign shall be placed on the bed or booth indicating that it has been properly cleansed. Bathrooms and dressing rooms shall also be properly sanitized and consumers shall be provided with clean towels and washcloths. The department shall promulgate rules and regulations related to the sanitation standards to be met in each tanning facility. These standards shall meet the minimum standards established for beauty salons.

(f) The tanning facility shall limit session duration and frequency to maximums recommended by the manufacturer of the tanning device."

SECTION 4.

Said chapter is further amended by revising Code Section 31-38-8, relating to written report of injury requirement, use of tanning equipment by minors, and equipment maintenance requirements, as follows:

"31-38-8.

(a) The tanning facility owner or operator shall compile a written report of actual or alleged injury from use of tanning equipment within five working days after occurrence or notice thereof and send the report to the department within five working days. Such report shall be maintained by the tanning facility for a period of not less than three years and shall be available for inspection and copying by any consumer. The report shall include:

(1) The name of the affected individual;

(2) The name and location of the tanning facility and identification of the specific tanning equipment involved;

(3) The nature of the actual or alleged injury; and

(4) Any other information relevant to the actual or alleged injury to include the date and duration of exposure.

The department shall send reports of all injuries to the United States Food and Drug Administration.

(b) The tanning facility owner or operator shall not allow minors under 14 years of age to use tanning equipment. The tanning facility owner or operator shall not allow minors 14 years of age or over but under 18 years of age to use tanning equipment unless the minor's parent or legal guardian signs a written consent form meeting the requirements of this Code section. Such consent form shall be signed by the parent or legal guardian at the tanning facility before the minor may use the equipment or facility.

(c) The tanning facility owner or operator shall replace defective or burned out lamps, bulbs, or filters with a type intended for use in the affected tanning equipment as specified on the product label and having the same spectral distribution.

(d) The tanning facility owner or operator shall replace ultraviolet lamps and bulbs, which are not otherwise defective or damaged, at such frequency or after such duration of use as may be recommended by the manufacturer of such lamps and bulbs.

(e) A tanning facility shall not advertise or distribute promotional materials that claim that using a tanning device is safe or free from risk or that the use of a tanning device will result in medical or health benefits. Violation of the provisions of this subsection shall constitute an unfair or deceptive act pursuant to the terms of Part 2 of Article 15 of Chapter 1 of Title 10, the Georgia Fair Business Practices Act."

SECTION 5.

Said chapter is further amended by revising Code Section 31-38-9, relating to noncompliance with chapter, as follows:

"31-38-9.

(a) The department shall have access to any tanning facility during the hours the tanning facility is open to consumers to inspect such facility and its records and determine whether a violation of this chapter has occurred.

(b) A license may be denied, suspended, or revoked by the department for any violation of this chapter, including but not limited to:

(1) Submission of false statements in an application, reports, plans, or specifications;

(2) Maintenance of conditions which violate this chapter;

(3) Operation of the tanning facility in a manner that threatens public health or safety;

(4) Failure to allow representatives of the department to enter the tanning facility at reasonable hours for inspection or investigation; or

(5) Failure to pay license fees imposed by this chapter.

The department shall, prior to suspension or revocation of a license, provide written notice to the licensee of the facts or conduct which may warrant suspension or revocation and shall provide the licensee with an opportunity to demonstrate or achieve compliance. The licensee may request an administrative hearing upon receipt of the written notice.

(c) Notwithstanding the provisions of subsection (b) of this Code section, if the department determines that an emergency exists that presents an immediate threat to the health and safety of the public, the department may immediately suspend the license of the tanning facility pending a hearing in accordance with the time frames and requirements for emergency hearings under Title 50 through the Office of State Administrative Hearings to determine whether cancellation, revocation, or other disciplinary action should be imposed on the licensee.

(d) Any person who leases tanning equipment or who owns a tanning facility as defined by this chapter who operates or permits to be operated that equipment or facility in noncompliance with the requirements of this chapter shall be guilty of a misdemeanor."

SECTION 6.

Said chapter is further amended by adding a new Code section to read as follows:

"31-38-9.1.

(a) The appropriate staff of the county board of health may conduct inspection activities on behalf of the department in the manner and subject to the terms and conditions provided by this chapter. The county board of health shall provide a report of the results and findings of such inspections to the department.

(b) The department shall notify any county board of health of any application for a license required by this chapter made by a tanning facility within the board of health's jurisdiction and shall provide a copy of such application. The department shall take action based upon the report and results of such inspections as prescribed by this chapter.

(c) The county board of health may levy an annual inspection fee as provided by paragraph (6) of Code Section 31-3-4."

SECTION 7.

Said chapter is further amended by revising Code Section 31-38-11, relating to a permitted variance, as follows:

"31-38-11.

(a) Any tanning facility which finds that it is not possible to comply with Code Section 31-38-4 may apply to the administrator appointed pursuant to subsection (a) of Code Section 10-1-395 for a variance from the requirements of Code Section 31-38-4. Any such variance granted by the administrator shall be in writing and shall be drawn as narrowly as possible.

(b) On or after January 1, 2011, the administrator shall not grant any variances pursuant to this Code section. Any variance granted pursuant to this Code section prior to January 1, 2011, shall no longer be valid and shall not relieve any tanning facility from complying with the provisions of Code Section 31-38-4."

SECTION 8.

Said chapter is further amended by revising Code Section 31-38-12, relating to effect of chapter on administrator and administrator's immunity, as follows:

"31-38-12.

Nothing contained in this chapter shall be construed as imposing any duty, requirement, or enforcement authority upon the administrator appointed pursuant to Code Section 10-1-395 except as described in Code Section 31-38-11, provided that nothing contained in this chapter shall be construed in any manner as limiting the administrator from exercising any of his the administrator's duties, powers, or authority under any other law. The administrator shall not be liable to any person for any reason as a result of granting or failing to grant any variance under Code Section 31-38-11 prior to January 1, 2011."

SECTION 9.

This Act shall become effective on January 1, 2011.

SECTION 10.

All laws and parts of laws in conflict with this Act are repealed.