# Title 23 — Health and Safety

## Chapter 23-39 — Tanning Facilities

### § 23-39-01. Definitions.

As used in this chapter, unless the context otherwise requires:
1. "Department" means the department of health and human services.
2. "Phototherapy device" means equipment that emits ultraviolet radiation and is used in
treating disease.
3. "Tanning device" means equipment that emits electromagnetic radiation having
wavelengths in the air between two hundred and four hundred nanometers and which
is used for tanning of human skin and any equipment used with that equipment,
including food and drug administration-approved protective eyewear, timers, and
handrails. The term does not include a phototherapy device used by a physician.
4. "Tanning facility" means a place or business that provides individuals access to a
tanning device.
### § 23-39-02. Permit - Fee.

1. A person may not operate a tanning facility without a permit issued by the department
under this chapter. The holder of a permit shall display the permit in a conspicuous
place at the tanning facility for which the permit is issued. Permits issued under this
chapter expire annually. An applicant for a permit shall submit an application for a
permit to the department, on a form provided by the department, with a permit fee
established by the department. The application must include the name and complete
mailing address and street address of the tanning facility and any other information
reasonably required by the department for the administration of this section.
2. The permit fee established by the department must be based on the cost of conducting
routine and complaint inspections and enforcement actions and the cost of preparing
and sending license renewals. Any fee collected under this section must be deposited
in the department's operating fund in the state treasury and any expenditure from the
fund is subject to appropriation by the legislative assembly. The department shall
waive all or a portion of the permit fee for any tanning facility that is subject to local
jurisdiction.
3. The department shall accept city or county enforcement of this chapter if the
department determines the city or county requirements meet or exceed the
requirements of this chapter and any rules adopted under this chapter.
### § 23-39-02.1. License fees.

The fees established by the department must be based on the cost of conducting routine
and complaint inspections, enforcement actions, and preparing and sending license renewals.
License fees collected pursuant to this chapter must be deposited in the department's operating
fund in the state treasury and any expenditure from the fund is subject to appropriation by the
legislative assembly. The department shall waive all or a portion of the license fee for any
tanning facility that is subject to local jurisdiction.
The department shall accept city or county enforcement of this chapter if the department
determines the city or county requirements meet or exceed the requirements of this chapter and
any rules adopted under this chapter.
### § 23-39-03. Advertising - Notice - Warning sign - Tubes - Prohibited claims.

1. A tanning facility may not state in any advertising that the tanning facility holds a
license or permit issued by the department to operate a tanning facility.
2. A tanning facility shall give to each of the tanning facility's customers written notice of
the following:
a. Failure to wear the eye protection provided by the tanning facility may result in
damage to the customer's eyes and may cause cataracts;
b. Overexposure to a tanning device causes burns;

c. Repeated exposure to a tanning device may cause premature aging of the skin
and may cause skin cancer;
d. Abnormal skin sensitivity or burning of the skin while using a tanning device may
be caused by:
(1) Certain foods;
(2) Certain cosmetics; and
(3) Certain medications, including tranquilizers, diuretics, antibiotics, high blood
pressure medicines, and birth control pills; and
e. An individual who takes a drug should consult a physician before using a tanning
device.
3. A tanning facility shall display prominently a warning sign in each area where a tanning
device is used. The warning sign must convey the following directions and information:
a. Follow instructions.
b. Avoid too frequent or too lengthy exposure. Like exposure to the sun, use of a
tanning device can cause eye and skin injury and allergic reactions. Repeated
exposure can cause chronic sun damage, which is characterized by wrinkling,
dryness, fragility and bruising of the skin, and skin cancer.
c. Wear food and drug administration-approved protective eyewear.
d. Ultraviolet radiation from tanning devices will aggravate the effects of the sun, so
do not sunbathe during the twenty-four hours immediately preceding or
immediately following the use of a tanning device.
e. Medications and cosmetics may increase your sensitivity to ultraviolet radiation.
Consult a physician before using a tanning device if you are using medications,
have a history of skin problems, or believe that you are especially sensitive to
sunlight. Women who are pregnant or using birth control pills and who use a
tanning device may develop discolored skin.
f. If your skin does not tan when exposed to the sun, it is unlikely that your skin will
tan when exposed to this tanning device.
4. The tanning facility shall maintain a record of the date on which each fluorescent tube
is replaced.
5. An owner or employee of a tanning facility may not claim, or distribute materials that
claim, that using a tanning device is free of risk.
### § 23-39-04. Liability.

A tanning facility's compliance with this chapter does not relieve the owner or any employee
of the tanning facility from liability for injury sustained by a user of a tanning device.
### § 23-39-05. Duties.

1. The owner of a tanning facility shall ensure that all of the following are fulfilled:
a. A customer under eighteen years of age may not be permitted to use the tanning
facility until the customer provides the facility with written consent, in a form
prescribed by the department, of a parent or legal guardian to use the tanning
facility. The consent must indicate that the parent or legal guardian has read the
warnings required by this chapter and that the customer agrees to wear food and
drug administration-approved protective eyewear. The parent or legal guardian
shall provide a notarized statement of consent or sign the consent form in the
presence of the owner of the tanning facility or an employee responsible for the
operation of the ultraviolet radiation device of the facility. The written consent form
expires twelve months from the date signed. A customer under the age of
fourteen years may not be allowed to utilize a tanning device at a tanning facility
without a written order from a physician licensed in this state and without being
accompanied by a parent or legal guardian for every use of the tanning facility.
b. During operating hours there is present at the tanning facility a trained operator
who is able to inform customers about, and assist customers in, the proper use of
tanning devices.
c. Each tanning bed is properly sanitized after each use.

d. Properly sanitized and securely fitting food and drug administration-approved
protective eyewear that protects the wearer's eyes from ultraviolet radiation and
allows enough vision to maintain balance is made available to the customer.
e. A customer is not allowed to use a tanning device unless the customer agrees to
use food and drug administration-approved protective eyewear.
f. A customer is shown how to use such physical aids as handrails and markings on
the floor to determine the proper distance from the tanning device.
g. A timing device that is accurate within ten percent is used.
h. Each tanning device is equipped with a mechanism that allows the customer to
turn off the tanning device.
i. A customer is limited to the maximum exposure time recommended by the
manufacturer.
j. A customer is not allowed to use a tanning device more than once every
twenty-four hours.
k. The interior temperature of the tanning facility does not exceed one hundred
degrees Fahrenheit.
l. The statements under subdivision a of subsection 2 are retained by the tanning
facility for the lesser of three years or until the customer signs a new statement.
2. A user of a tanning facility shall do all of the following:
a. Immediately before the customer's first use of a tanning facility in a year, sign a
statement acknowledging that the customer has read and understands the notice
under subsection 2 of section 23-39-03 and the warning sign under subsection 3
of section 23-39-03 and specifying that the customer agrees to use food and drug
administration-approved protective eyewear.
b. Use food and drug administration-approved protective eyewear at all times while
using a tanning device.
### § 23-39-06. Injury reports.

If a customer of a tanning facility reports a sunburn injury to that facility resulting from the
use of its tanning device, the owner shall provide the customer with written information on how
to report the alleged injury to the department of health and human services. If a health care
provider treats a patient for a sunburn injury and determines, in the exercise of professional
judgment, that the injury occurred as a result of using a tanning device at a tanning facility, the
health care provider shall report the circumstances of the injury to the department of health and
human services. A health care provider making or not making a report in good faith pursuant to
this section is immune from liability for making or not making a report.
### § 23-39-07. Enforcement - Rules - Penalty.

The department shall enforce this chapter and shall adopt rules necessary to implement this
chapter. The department may deny issuance of a permit to an applicant or suspend or revoke
any permit issued under this chapter if the applicant or permitholder, or an employee of the
applicant or permitholder, violates this chapter or any rule adopted to implement this chapter.
Violation of this chapter or any rule adopted to implement this chapter is a class B
misdemeanor.
