ORDERS:
ORDER OF DISMISSAL
The parties have reached a settlement of the above matter. The terms of settlement are set
forth in the Consent Order filed with the Court on February 21, 1997, which is attached hereto
and made a part of this Order. The hearing on the merits in this case is scheduled for March 26,
1997, at 9:30 a.m. at the Administrative Law Judge Division.
IT IS THEREFORE ORDERED that the hearing in the above matter scheduled for
March 26, 1997, at 9:30 a.m. is cancelled.
IT IS FURTHER ORDERED that the above-captioned case bearing Docket Number
96-ALJ-07-0562-CC is hereby dismissed pursuant to the terms of the attached Consent Order
filed with this Court on February 21, 1997.
AND IT IS SO ORDERED.
_______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 21, 1997
Columbia, South Carolina
f:\960562.wpd
STATE OF SOUTH CAROLINA
BEFORE THE BOARD OF HEALTH AND ENVIRONMENTAL CONTROL
______________________________________________________________________________
IN RE: Jim Cottrell
d/b/a SunChasers
Docket No. 96-ALJ-07-0562-CC
_____________________________________________________________________________
CONSENT ORDER
______________________________________________________________________________
SunChasers is registered with the Department of Health and Environmental Control and has
operated unregistered prior to the receipt of their application on May 3, 1994. A Department
inspection of June 12, 1996, revealed recurring violations, such as failure to ensure consumers
have protective eyewear, failure to maintain records of timer and off switch testing, and failure to
provide and document on-thejob training. SunChasers has failed to have formally trained
operators present and had never trained any operators prior to July 14, 1996, even though the
deadline for existing facilities to comply with operator training was July 1, 1994. Additionally,
SunChasers failed to respond to the Department's communications on repeated occasions. Due to
repeated violations and a repeated lack of response, the Department requested that SunChasers
attend an Enforcement Conference on November 7, 1996. On November 6, 1996, the
Department received a written response from SunChasers regarding the inspection of June 12,
1996. However, SunChasers failed to attend the Enforcement Conference on November 7, 1996.
Findings of Fact
1. SunChasers is owned by Jim Cottrell and has operated commercial tanning equipment in
South Carolina since April 1993.
2. On February 26, 1994, the Department conducted an inspection at SunChasers. The
Department cited the facility for the following violations of Regulation 61-106 "Tanning
Facilities":
a- Section 2.2.1 Failure to register and submit an application
b- Section 2.2.4 Failure to have operating procedures available
c- Sections 3.4.9 and 4.3.3 Failure to conduct timer and off switch testing and
record the results
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d- Section 3.6.4 Failure to ensure consumers have protective
eyewear '
e- Section 3.6.5 Failure to ensure protective eyewear is provide in
accordance with its design
f- Section 4.3.2 Failure to record room number for each tanning visit
g- Section 4.7 Failure to have users' instruction manuals present
h- Section 5.3.1 Failure to prevent customers from being able to
reset timers
i- Sections 5.4 and 5.6 Failure to provide and document on-the-job training
j- Room 2, Section 3.4.8 Failure to maintain acrylic in a manner that prevents
injury
3. On March 9, 1994, the Department sent SunChasers a report of findings for the February
26, 1994, inspection. The report required a written response within 20 days regarding
action taken or proposed corrective action taken (March 20, 1994) and required all
corrective action to be completed within 60 days (May 9, 1994).
4. On March 22, 1994, the Department contacted SunChasers by telephone to ensure a
response would be sent in 20 days.
5. SunChasers failed to respond to the telephone reminder of March 22, 1994. On April l l
1994, the Department sent the facility a letter citing the facility with failure to register,
operating without registration, and failure to notify the Department within 20 days
regarding corrective action taken or planned. The Department required SunChasers to
respond within five days.
6. On May 3, 1994, the Department received the application from SunChasers and a partial
response.
7. On May 11, 1994, the Department sent SunChasers a letter requesting additional
information within 10 days.
8. SunChasers failed to respond to the letter of May 11, 1994. The Department contacted
SunChasers by telephone on June 1, 1994, and sent the facility a copy of the May 11,
1994, letter.
9. SunChasers failed to respond to the telephone reminder of June 1, 1994. The Department
contacted SunChasers by telephone on June 20, 1994, and sent the facility a copy of the
inspection report of February 26, 1994.
10. SunChasers failed to respond to the telephone reminder of June 20, 1994. The
Department sent the facility a certified letter on August 3, 1994. The certified letter cited
the facility with a failure to correct violations within 60 days and required a written
2
response within ten days. Crystal Durham signed for the certified letter on August 6,
1994.
11. The Department received a response on August 12, 1994. All violations had been
corrected except for the timer violation. The response stated the manufacturer was out of
the 20-minute timers needed.
12. On August 16, 1994, the Department sent SunChasers a letter with a list of vendors
registered to sel1 20-minute timers. The Department requested a written response within 10 days regarding the timers.
13. SunChasers failed to respond to the letter of August 16, 1994. The Department sent the
facility a certified letter on September 11,1994, citing SunChasers with failure to
respond with notification regarding action to correct the timer violation. The letter required a written response within 10 days. Jim Cottrell signed for the certified letter on September 15, 1994.
14. SunChasers failed to respond to the letter of September l l, 1994. The Department
contacted SunChasers by telephone on October 12, 1994. Jim Cottrell indicated he was
still having problems obtaining compliant timers.
15. On October 13, 1994, the Department granted SunChasers an extension until December
1, 1994, to obtain the timers and required SunChasers to write to the Department prior to
this date.
16. SunChasers failed to respond by December l, 1994. The Department telephoned the
facility on December 14, 1994. Jim Cottrell indicated he had been unable to get the
timers.
17. On December 5, 1994, the Department received a complaint that SunChasers was
allowing daily tanning, which is prohibited according to the manufacturer's
recommended exposure schedule. On December 15, 1994, the Department notified
SunChasers in writing about the complaint and requested SunChasers to respond in
writing within 10 days.
18. SunChasers failed to respond to the letter of December 15, 1995. On January 19, 1995,
the Department wrote to SunChasers and requested a written response within 10 days.
19. SunChasers failed to respond to the letter of January 15, 1995. On February 2, 1995, a
Department representative visited SunChasers and discussed the complaint of December
5, 1994, with Jim Cottrell. Jim Cottrell indicated he did not allow customers to tan daily
and he would respond to this matter in writing. The Department received a response on
February 16, 1995.
3
20. On March 27, 1995, the Depatrment requested that SunChasers indicate in writing
within 10 days if the compliant 20 minute timers had been installed.
21. SunChasers failed to respond to the letter of March 27, 1995. A Department
representative visited the facility on April 4, 1995. Jim Cottrell indicated the timers
would be received that day or April 5, 1995. The Department representative instructed
Jim Cottrell to notify the Department of the installation of the timers.
22. On April 12 ,1995, SunChasers was sent a letter citing the facility with failure to install
remote timers, which resulted in the lack of means to prevent the customers from
resetting the timers. The Department requested a written response within ten days.
23. SunChasers failed to respond within 10 days. The Department contacted the facility by
telephone on May 15, 1995. Jim Cottrell indicated the timers had been installed and he
would write to the Department.
24. SunChasers failed to respond in writing to the telephone call of May 15, 1995. The
Department sent the facility a certified letter on June 7,1995, citing SunChasers with
failure to respond within 1O days to the Department's letter of April 4, 1995, and
requesting a written response within 10 days. Jim Cottrell signed for the letter on June
13, 1995.
25. Since SunChasers failed to respond to the certified letter of June 7, 1995, the
Department left a telephone message for Jim Cottrell on July 18, 1995.
26. SunChasers failed to respond to the telephone message of July 18, 1995. The
Department visited SunChasers on August 23, 1995, and determined that only one of
four required remote timers had been installed. JimCottrell indicated he was not
concerned with the timer situation.
27. Since SunChasers had repeatedly failed to respond to the Department, the Department
scheduled an Enforcement Conference for September 2l, 1995.
28. On September 14, 1995, Jim Cottrell contacted the Department and indicated three
springwound remote timers had been installed. The Department indicated to Mr.
Cottrell that the Enforcement Conference would be cancelled if he responded promptly in writing that the timers were installed.
29. Since SunChasers failed to respond, the Department contacted the facility by telephone
on September 25, 1995. Jim Courell stated he had sent a written response on September
21 or 22, 1995. The Department received the written response on September 25, 1995.
30. On October 3, 1995, the Department sent SunChasers a certifed letter dated September
4
28, 1995. The letter stated the facility had not responded in a timely manner and
indicated the Department would perform an unannounced inspection to confirm whether
the timers had been installed. If the timers had not been installed, the Department would
issue SunChasers a $5000 Civil Penalty.
31. SunChasers failed to claim the certified letter of September 28, 1995, after the US Postal
Service attempted to deliver the letter on October 8, October 13, and October 23, 1995.
32. On October 13, 1995, the Department performed an unannounced inspection and
determined three mechanical remote timers had been installed in addition to the one
digital remote timer previously determined to be present.
33. On June 12, 1996, the Department conducted a reinspection at SunChasers. The
Department cited the facility for the following violations of S.C. Code Ann. Regulations
61-106 (Supp. 1995) "Tanning Facilities":
Section 2.2.4 Failure to follow DHEC Operating Procedures
Section 2.7.1 Failure to report change in operators
Section 3.6.4 Failure to ensure consumers have protective eyewear (recurring
violation)
Section 3.6.5 Failure to ensure protective eyowear is provided in accordance with
its design (recurring violation)
Section 4.3.2 Failure to record each client's skin type
Section 4.3.3 Failure to maintain records of timer and off switch testing
(recurring violation)
Section 5.2 Failure to have trained operators present
Section 5.3.1 Failure to prevent customers from exceeding the manufacturer's
recommended exposure time and spacing of visits
Sections 5.4 and 5.6 Failure to provide and document on-the job training (recurring
violation)
Sections 5.5 and 5.6 Failure to have formally trained operators present
34. On June 12, 1996, Jim Cottrell signed a statement indicating he would respond within 20
days regarding action taken or proposed corrective action taken (July 2, 1996) and
requiring all corrective action to be completed within 60 days (August 11, 1996).
35. Since SunChasers failed to respond by July 2, 1996, on July 10, 1996, the Department
called the facility and reminded Jim Cottrell to respond.
36. SunChasers failed to respond to the telephone reminder. The Department sent
SunChasers a certified letter on July 24, 1996, citing the facility with failure to respond
within 20 days. The letter requested a response within 10 days and Jim Cottrell signed
for the certified letter on July 29, 1996. The Department received a partial response on
August 1, 1996.
37. On August 2, 1996, the Department sent SunChasers a letter requesting written
notification of all corrective completed action by August 11, 1996.
38. SunChasers failed to respond by August 11, 1996. The Department sent the facility a
certified letter on August 21, 1996, citing the facility with failure to respond within 60
days. The letter required a written response within 10 days. Jim Cottrell signed for the
certified letter on August 24, 1996.
39. SunChasers failed to respond to the certified letter of August 21, 1996. The Department
telephoned the facility on September 10, 1996, and September 26, 1996, to remind the
facility to respond. During both conversations, Jim Cottrell stated he would send a
response.
40. SunChasers continued to fail to respond to the telephone reminders of September 10 and
26, 1996. The Department scheduled an Enforcement Conference for November 7, 1996.
On November 6, 1996, the Department received a written response from SunChasers.
However, SunChasers failed to attend the Enforcement Conference scheduled for
November 7, 1996.
41. Tanning Facilities Regulations, S.C. Code Ann. Regs. 61-106 1.1.13 (Supp. 1995)
provides that the Department may assess a monetary penalty against a facility for
violation of the Regulations.
Conclusions of Law
1. Repeated failure to correct cited violations within 60 days is a Severity Level I Civil
Penalty, which carries a fine of up to $25,000 per violation.
2. Repeated failure to maintain required records is a Severity Level I Civil Penalty, which
carries a fine of up to $25,000 per violation.
3. Failure to provide consumers with adequate protective eyewear is a Severity Level I
Civil Penalty, which carries a fine of up to $25,000 per violation.
4. Failure to ensure that tanning equipment is operated by adequately trained personnel is a
Severity Level I Civil Penalty, which carries a fine of up to $25,000 per violation.
5. Failure to adequately train operators is a Severity Level I Civil Penalty, which carries a
fine of up to $25,000 per violation.
6. Failure to register tanning equipment with the Department within 60 days is a Severity
6
Level II Civil Penalty, which carries a fine of up to $5000 per violation.
7. Failure to ensure compliance with operator control requirements is a Severity Level II Civil Penalty, which carries a fine of up to $5000 per violation.
It is further found that violations of Department Regulations constitute violations of the Atomic
Energy and Radiation and ControlAct and subject SunChasers to Civil Penalties in accordance
with S.C. Code Ann. Section 13-7-85 (Supp. 1995) of the South Carolina Code of Laws, as
amended.
NOW THEREFORE IT IS ORDERED with the consent of SunChasers that SunChasers
shall:
I. Pay a Civil Penalty of $10,000, $8000 of which will be suspended upon payment of
$2000 in four monthly instalIments of $500 each due by March 15, 1997, April 15, 1997, May 15, 1997, and June 15, 1997. If any payments are late, the entire remaining sum of the $2000 penalty will become due immediately.
2. If violations are not corrected or responded to within reasonable time limits established
by the Department, the remainder of the $10,00 penalty will be imposed.
3. Ensure that any future responses or notifications are provided to the Department in a
timely manner.
4. Ensure that all tanning equipment operators are formally trained in a timely manner.
5. The Department reserves the right to assess additional penalties and to pursue additional legal remedies for noncompliance with the terms of this Consent Order.
WE CONSENT:
SO ORDERED:
_______________________________ Date: 2/21/97
Stephen P. Bates
Administrative Law Judge
_______________________________ Date: 2/13/97
Jim Cottrell, Owner
SunChasers
7
_______________________________ Date: February 13, 1997
Jonathan R. Hendrix, Esquire
Attorney for Sunchasers
_______________________________ Date: Feb. 13, 1997
T. Pearce O'Kelley, MPH, Director
Division of Electronic Products
_______________________________ Date: February 13, 1997
Nancy S. Layman, Esquire
Attorney for the Department
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