COLUMBIA — Citing the cancer risk to students, MU is trying to shut down privately operated tanning beds in the Student Recreation Complex. How long the tanning will remain open is the subject of a pending breach of contract lawsuit by the operator against the UM Board of Curators.
After learning of the lawsuit, Karen Edison, chair of the MU Department of Dermatology, expressed approval of the university's decision to discontinue the indoor tanning business.
"I am delighted that the university is acting in the best interest of its students," Edison said. "It is clear that UV light is a carcinogen. It has no place in the Student Recreation Center, which is there to promote health."
On May 13, Diane Dahlmann, director of MizzouRec Services and Facilities, notified owners of The Spa that its contract to operate in the complex would be terminated July 31. In response, the owners filed suit July 15 to keep their business open.
The Spa is operated by Tan Time LLC, a partnership between Terry Wilson, owner of Wilson's Total Fitness, and Randy Dawson of Collinsville, Ill.
In a May interview, Dahlmann said that private vending space for indoor tanning became part of the remodeling and expansion of the recreation complex in response to a student survey. A survey conducted by a marketing class during the 2004 spring semester found that students wanted services such as tanning and massages. Adding these services to the project was discussed with the Missouri Students Association, the Rec Advisory Committee and student affairs between 2001 and 2006, Dahlmann said.
MU awarded the contract to Tan Time after it submitted a bid in response to the university's request for proposals. In a May interview, Dawson said Tan Time had invested approximately $250,000 "in good faith" with the university to provide a convenient service. Tan Time also pays MU $40,000 a year to operate.
In the letter to cancel the business arrangement, MU cited a provision in its contract with Tan Time that allows the university to end the agreement "in its best interest."
As a result of the letter, the tanning beds were closed until an Aug. 7 court hearing where Tan Time presented its case for a temporary restraining order to reopen.
The restraining order was granted, and was to be in effect for 15 days. Even though the order has since expired, The Spa has continued to operate. According to a transcript of the hearing, The Spa will be selling tanning packages that only last until December.
Dawson testified during the hearing that without the profits generated from the influx of students buying tanning packages at the beginning of the semester, which comprise the bulk of the company's revenue, Tan Time would not be able to pay its bills and therefore become bankrupt.
MU asked Tan Time to propose a new business plan that would eliminate the tanning beds but keep its massage and other services before it sought to close The Spa over the summer, according to a transcript of the hearing obtained by the Missourian.
Dawson testified that a new proposal was sent via e-mail to Dahlmann, but that he didn't receive a response. He also said that operating The Spa without using tanning beds isn't feasible because indoor tanning generates 85 percent of the business's revenue.
Kelly Mescher, who represents the Board of Curators, told County Circuit Judge Jodie Asel that the university "wanted to be out of the tanning bed business because there is a concern about cancer." The cancer risk, Mescher told the court, was a "big issue" for MU Chancellor Brady Deaton.
Almost immediately after The Spa's construction in January 2007, the decision to let a private vendor provide tanning services at the student recreation complex raised objections from MU physicians and medical professors.
In an e-mail to Chancellor Deaton shortly after Tan Time opened, Edison wrote that it's well-known that unprotected ultraviolet light exposure is the leading risk factor in the development of skin cancer and premature aging. The U.S. Department of Health and Human Services added UV radiation to the government's list of known carcinogens in 2002, her e-mail noted.
"For a university with a strong Dermatology Department and a burgeoning public health program, it seems to me that this is not putting our best foot forward," Edison wrote. "I am seriously concerned about supporting an activity for our students that is known to cause cancer."
Despite the strong views of MU medical professionals, Edison said the university did not contact her to testify for the temporary restraining order hearing.
Mescher did not bring any evidence to the hearing on behalf of MU to support her argument against the restraining order. However, Mescher told the court that there is a concern about the resulting publicity if the court forces MU to reopen The Spa. She said students would be exposed to dangerous conditions and knowledge of such danger could open the university to potential liability and damages.
"I think it affects public interest in that the university has taken this position that this isn't a good thing, that we shouldn't promote this to students," Mescher said.
The contract included renewals every two years and extended through 2016. The contract's first automatic renewal was set to occur in December 2010. However, the agreement also contained a provision that would allow MU to unilaterally cancel the agreement "in its best interest" with 30 days' written notice, as well as a provision allowing either party to cancel the contract with 60 days written notice at the end of any lease year. MU invoked the 60-day termination clause, saying that Aug. 1 would be the end of the lease year.
Tan Time alleged that under the terms of the contract, the business arrangement could not be terminated until Dec. 31, 2008, at the earliest, thereby arguing that the university breached the agreement. In the restraining order brief, Tan Time lawyer Thomas Schneider argued that the contract "was terminated on May 13, 2008, at the apparent urging of an MU medical professor who claims that ultraviolet tanning is hazardous even though it is regulated by the federal government and plaintiff operates within those guidelines."
The brief further alleged that MU employees knew that one or more medical school professors opposed the tanning services before the business opened and that by not disclosing this opposition to Tan Time before the owners invested hundreds of thousands of dollars, MU misrepresented its position in the contract.
In a written response to the petition, MU lawyer Mescher acknowledged that "the views of the University of Missouri Medical School staff are a factor in the decision to terminate the contract." In her response, Mescher also said MU was not aware of objections from university medical professionals when the contract went into effect.
Schneider said earlier this week that setting a date for a hearing on the preliminary injunction was still being discussed with opposing counsel and that no agreement as to when The Spa will close had been reached. Mescher said recently that beyond setting the hearing, there had been no negotiations for a resolution with Tan Time.