THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY SWANGER, COHEN, DeLUCA, GINGRICH, KILLION, McGEEHAN, MURT, REICHLEY, K. SMITH AND YOUNGBLOOD, OCTOBER 24, 2011

REFERRED TO COMMITTEE ON HEALTH, OCTOBER 24, 2011  

AN ACT

Providing for the regulation of tanning facilities and for

penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Tanning

Facility Regulation Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Customer."  A 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."  The Department of Health of the Commonwealth.

"Fitzpatrick scale."  A scale 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:

"Operator."  An individual designated by a licensee to

control operation of the tanning facility of the licensee and to

instruct and assist the customer in the proper operation of the

tanning equipment.

"Person."  An individual, partnership, corporation or

association.

"Phototherapy device."  Equipment that emits ultraviolet

radiation and is used by health care professionals in the

treatment of disease. The term shall not include any of the

following:

(1)  Devices utilized by appropriate health care

professionals under the direct supervision of a physician who

is trained in the use of phototherapy devices.

(2)  Devices used for personal use in a private

residence.

(3)  Devices intended for purposes other than the

irradiation of human skin.

"Tanning equipment or device."  Equipment that emits

radiation used for tanning of the skin, such as a sunlamp,

tanning booth or tanning bed that emits electromagnetic

radiation with wavelengths in the air between 200 and 400

nanometers. The term includes any accompanying equipment, such

as protective eyewear, timers and handrails.

"Tanning facility."  Any place where a tanning device is used

for a fee, membership dues or any other compensation.

"Ultraviolet radiation."  Electromagnetic radiation with

wavelengths between 200 and 400 nanometers.

Section 3.  Licensing and fees.

(a)  Requirement.--No person shall establish, maintain,

operate or hold itself out as authorized to establish, maintain

or operate a tanning facility without first having obtained a

license issued by the department.

(b)  Application.--A person may apply for a license required

under subsection (a) 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 act.

(5)  A copy of the operating and safety procedures of the

tanning facility.

(6)  Any additional information required by the

department.

(c)  Determination.--The department shall issue a license to

an applicant upon determination that the applicant meets all of

the requirements of this act.

(d)  Fee.--An applicant shall be required to pay a license

fee of $300 per salon, including ten devices, and $20 per

additional bed. The department may increase fees by regulation

in an amount sufficient to cover the cost of annual inspection

and administration of this act.

(e)  Posting.--A licensee shall post its license in a

location clearly visible to its customers.

(f)  Expiration.--A license shall expire annually on the date

specified in the license.

(g)  Renewal.--A licensee must file an application for

renewal on a form prescribed by the department prior to

expiration of its current license.

(h)  Transfer.--A license shall not be transferable from one

person or one tanning facility to another.

(i)  Denial, suspension or revocation.--The following shall

apply to the denial, suspension or revocation of a license:

(1)  The department shall have the authority to deny,

suspend or revoke licensure for any of the following reasons:

(i)  Submission of false statements in application,

reports, plans or specifications.

(ii)  For conditions which violate this act.

(iii)  Operation of the tanning facility in a manner

that threatens public health or safety.

(iv)  Failure to allow the department to enter the

tanning facility at reasonable hours for inspection or

investigation.

(v)  Failure to pay license fees.

(2)  Except in cases involving an immediate threat to

public health and safety under section 10(c), 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.

Section 4.  Inspection.

(a)  Time.--The department shall conduct an initial

inspection, after receipt of an application for a license under

section 3, of a tanning facility and may inspect each year

thereafter.

(b)  Conduct.--Inspections conducted by the department under

this section shall encompass 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.

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

Section 5.  Warning signs and statements.

(a)  Warning signs and statements describing hazards.--A

tanning facility shall post a warning sign in a place readily

visible to persons entering the establishment. The sign shall

have dimensions not less than 11 inches by 17 inches. Lettering

must be clear, legible and at least 0.25 inches high, with all

of the following provisions on the sign:

(1)  The wording, "DANGER--ULTRAVIOLET RADIATION," in

letters at least 0.5 inches high.

(2)  Follow the manufacturer's instructions for use of

this device.

(3)  Avoid overexposure. As with natural sunlight,

overexposure can cause eye and skin injury and allergic

reactions. Repeated exposure to ultraviolet radiation may

cause chronic sun damage characterized by wrinkling, dryness,

fragility, bruising of the skin and skin cancer.

(4)  Do not sunbathe before or after exposure to

ultraviolet radiation from sunlamps.

(5)  Wear protective eyewear. Failure to use protective

eyewear may result in severe burns or permanent injury to the

eyes.

(6)  Medications or cosmetics may increase your

sensitivity to the ultraviolet radiation. Consult a physician

before using a sunlamp if you are using medications, have a

history of skin problems or believe you are especially

sensitive to sunlight. Women who are pregnant or are taking

oral contraceptives who use this product may develop

discolored skin.

(7)  A customer may call the Department of Health to

report an alleged injury regarding this tanning facility.

(8)  The wording, "IF YOU DO NOT TAN IN THE SUN, YOU ARE

UNLIKELY TO TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP."

(b)  Written warning statement.--Each customer shall be

provided with a written warning statement requiring a signature

prior to initial exposure. The warning statement shall include

all of the following:

(1)  Failure to use the eye protection provided to the

customer by the tanning facility may result in damage to the

eyes.

(2)  Overexposure to ultraviolet light causes burns.

(3)  Repeated exposure may result in premature aging of

the skin and skin cancer.

(4)  Abnormal skin sensitivity or burning may be caused

by reactions of ultraviolet light to certain:

(i)  foods;

(ii)  cosmetics; or

(iii)  medications, including:

(A)  tranquilizers;

(B)  diuretics;

(C)  antibiotics;

(D)  high blood pressure medicines; or

(E)  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 and

never tans should avoid a tanning device.

(7)  A person with a family or past medical history of

skin cancer should avoid a tanning device.

(c)  Liability.--The warning statement provided under

subsection (b) shall not affect the liability of the owner,

manager or operator of a tanning facility in the event that a

customer fails to follow the warning statement and incurs

damages.

Section 6.  Tanning devices.

(a)  Federal certification.--Only tanning devices

manufactured and certified under 21 CFR 1040.20 (relating to

sunlamp products and ultraviolet lamps intended for use in

sunlamp products) may be used in tanning facilities.

(b)  Condition.--All tanning devices shall do all of the

following:

(1)  Meet the National Fire Protection Association's

National Electrical Code and any other State or local

electrical codes.

(2)  Have physical barriers to protect customers from

injury due to touching or breaking lamps.

(3)  Be maintained in good repair.

(c)  Stand-up booths.--Stand-up booths shall meet all of the

following conditions:

(1)  Have physical barriers or other means to indicate

proper exposure distance.

(2)  Be constructed rigidly enough to withstand stress of

use and impact of a falling person.

(3)  Access shall be of rigid construction, doors must

open outwardly and handrails and nonslip floors must be

provided.

(d)  Protective eyewear.--Operators shall require customers

to wear protective eyewear in order to use a tanning device.

When a tanning device is in use, no other person shall be

allowed to remain in the area unless the person wears protective

eyewear. Protective eyewear shall do all of the following:

(1)  Be provided free of charge, along with instructions

for use. Customers may also be given the option to purchase

their own eyewear.

(2)  Meet the requirements of 21 CFR 1040.20.

(3)  Be properly sanitized before each use. Ultraviolet

rays shall not be considered a sanitizing agent.

Section 7.  Operation.

(a)  Skin type.--Operators must be able to recognize the skin

type of the customer based on the Fitzpatrick scale and advise

the customer accordingly in regard to maximum time of exposure.

(b)  Customer records.--A record shall be kept of each

customer's total number of tanning visits, date, time and

duration of each.

(c)  Records.--All records or documentation required by this

act shall be maintained in the tanning facility for a minimum of

three years. Records on computer must be backed up on storage

media other than the hard drive at least monthly and must be

retrievable as a printed copy. Records shall be accessible by

the department during an inspection.

(d)  Duration and frequency.--Operators shall limit session

duration and frequency to maximums recommended by the

manufacturer.

Section 8.  Restrictions on use by minors.

(a) General Rule.--No person under 18 years of age may use a

tanning device.

(b)  Identification.--A licensee or operator may request

valid identification from a customer to determine the age of the

customer.

Section 9.  Training.

(a)  Operator.--A tanning facility shall have an operator

present in accordance with subsection (b) who is sufficiently

knowledgeable in the operation of the tanning devices,

including:

(1)  Knowledge of the requirements of this section and of

21 CFR 1040.20 (relating to sunlamp products and ultraviolet

lamps intended for use in sunlamp products).

(2)  Proper use of the United States Food and Drug

Administration's recommended exposure schedule.

(3)  Procedures for correct operation of the tanning

facility.

(4)  Recognition of injuries and the facility's

procedures of handling the injuries from overexposure to

ultraviolet radiation.

(5)  Manufacturer's procedures for operation and

maintenance of the tanning device.

(6)  Use of protective eyewear.

(7)  Emergency procedures in case of injury.

(8)  Effects of ultraviolet radiation, acute and chronic

exposure and health risks.

(9)  Photosensitizing agents.

(10)  The six different skin types.

(b)  Presence.--A trained operator shall be present at the

tanning facility during all operating hours while tanning

equipment is in operation and shall inform and assist each

customer in the operation and use of the tanning device. No

consumer may use the tanning equipment in the absence of a

trained operator.

Section 10.  Inspections, violations and injunctions.

(a)  Access.--The department shall have access at reasonable

times to any tanning facility, including its records, to inspect

and determine whether a violation of this act has or will occur.

(b)  Penalty.--

(1)  Except as otherwise provided in this subsection, a

person who operates a tanning facility in violation of this

act commits a misdemeanor and shall be subject to suspension

or revocation of the tanning facility's license. A person who

operates a tanning device in violation of this act commits a

misdemeanor.

(2)  A person who violates section 8 shall be subject to

a civil penalty of not more than $250 for the first

violation, up to $500 for the second violation and up to

$1,000 for each subsequent violation. The penalty shall be

paid to the Department of Health for deposit in the State

Treasury.

(3)  It is an affirmative defense for an owner, manager

or operator to an offense under section 8 that, prior to the

date of the alleged violation, the owner, manager or operator

has complied with all of the following:

(i)  adopted and implemented a written policy against

permitting minors to use a tanning device at the tanning

facility which includes:

(A)  a requirement that an employee ask an

individual who appears to be 21 years of age or

younger for a valid photo identification as proof of

age prior to permitting the use of a tanning device;

(B)  a list of all types of acceptable photo

identification;

(C)  a list of factors to be examined in the

photo identification, including photo likeness, birth

date, expiration date, bumps, tears or other damage

and signature;

(D)  a requirement that, if the photo

identification is missing any of the items listed in

clause (C), it is not valid and cannot be accepted as

proof of age for the use of a tanning device. A

second photo identification may be required to permit

the use of a tanning device, with questions referred

to the manager; and

(E)  a disciplinary policy which includes

employee counseling and suspension for failure to

require valid photo identification and dismissal for

repeated improper use of tanning devices by minors.

(ii)  informed all employees permitting use of a

tanning device through an established training program of

the applicable State law regarding the prohibited use of

tanning devices by minors;

(iii)  documented employee training indicating that

all employees permitting the use of tanning devices have

been informed of and understand the written policy

referred to in subparagraph (i);

(iv)  trained all employees permitting the use of a

tanning device to verify that a customer is at least 18

years of age before permitting the use of a tanning

device;

(v)  conspicuously posted a notice that the use by a

minor of a tanning device is illegal; and

(vi)  established and implemented disciplinary

sanctions for noncompliance with the policy under

subparagraph (i).

(4)  An affirmative defense under paragraph (3) must be

proved by a preponderance of the evidence.

(5)  An affirmative defense under paragraph (3) may be

used by an owner, manager or operator not more than three

times at a tanning facility during any 24-month period.

(c)  Suspension or revocation.--If the department finds a

violation of this act that creates an immediate threat to the

health and safety of the public, the department may suspend or

revoke the tanning facility's license to operate.

(d)  Procedure.--

(1)  The department may take the following steps in

writing or use any other acts and regulations to enforce the

provisions of this act:

(i)  Cite each section of the act violated.

(ii)  Specify the manner in which the owner, manager

or operator failed to comply with this act.

(iii)  Require a corrective action plan, including a

reasonable time schedule for completion. The department

shall review the corrective action plan and approve or

require modification of the plan.

(2)  If a tanning facility fails to comply with

conditions of the written notice provided under paragraph

(1), the department shall notify the owner, manager or

operator, by certified mail, that unless action is taken

within five days of receipt of the written notice, the

tanning facility's license shall be suspended or revoked.

Section 20.  Severability.

The provisions of this act are severable. If any provision of

this act or its application to any person or circumstance is

held invalid, the invalidity shall not affect other provisions

or applications of this act which can be given effect without

the invalid provision or application.

Section 30.  Effective date.

This act shall take effect in 180 days.