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HomeMy WebLinkAboutOrdinance No. 04-1555 CITY OF THE COLONY, TEXAS ORDINANCE NO. 0~ /~'~ AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS REPEALING THE CURRENT LANGUAGE CONTAINED IN ARTICLE III FOOD AND FOOD ESTABLISHMENTS OF CHAPTER 10 AND REPLACING THE SAME WITH SIMILAR LANGUAGE PROVIDING FOR THE REGULATIONS OF FOOD ESTABLISHMENTS INCLUDING FOOD SERVICE ESTABLISHMENTS, RETAIL FOOD STORES, TEMPORARY FOOD ESTABLISHMENTS, MOBILE FOOD UNITS, AND ROADSIDE FOOD VENDORS; PROVIDING A SAVING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PUBLICATION CLAUSE; PROVIDING A PENALTY UPON CONVICTION IN AN AMOUNT NOT TO EXCEED TWO THOUSAND DOLLARS ($2,000.00) AND A SEPARATE OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR ON WHICH A VIOLATION OCCURS OR CONTINUES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Title 25, § 265.161 et seq., of the TEXAS ADMINISTRATIVE CODE provides minimum standards for food establishments; and WHEREAS, after due deliberations and consideration, the City Council of the City of The Colony finds that it is in the public interest to establish and adopt such regulations as provided in § 265.161 et seq. of the TEXAS ADMINISTRATIVE CODE to insure public safety and health; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. INCORPORATION OF PREMISES That the above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all purposes. SECTION 2. AMENDMENT That The Colony Code of Ordinances be, and the same is, hereby amended by repealing the current language contained in Article III, Food and Food Establishments, of Chapter 10 and replacing the same with similar language establishing the regulation of food establishments including food service establishments, retail food stores, temporary food establishments, mobile food units, and roadside food vendors in order to insure public safety and health, which shall read as follows: "ARTICLE III. FOOD AND FOOD ESTABLISHMENTS Sec. 10-50. Adoption of Texas Food Establishment Rules. The City of The Colony adopts by reference the provisions of the current rules or rules as amended by the Texas Board of Itealth found in 25 TEXAS ADMINISTRATIVE CODE, Chapter 265, Sections 161 through 171 and 173 through 175, as amended, regarding the regulation of food establishments in this jurisdiction. Sec. 10-51. Definitions. In addition to the rules herein adopted by reference, the following definitions shall apply: Authorized agent or employee: The employees of the City of The Colony. City or Municipality: The City of The Colony, Texas. Food establishment: A food service establishment, a retail food store, a temporary food establishment, a mobile food unit, and/or a roadside food vendor. State rules: The state rules found at 25 TEXAS ADMINISTRATIVE CODE, Chapter 265, Sections 161 through 171 and Sections 173 through 175, as amended. These rules are also known as the Texas Food Establishment Rules. Regulatory authority: The City of The Colony, Texas. Sec. 10-52. Health director; authority. (a) The health director has the power and authority to issue a citation to anyone in violation of any provision of this article. (b) The health director shall have the power, upon a warrant or other sufficient process, to arrest and take into custody any person violating any of the provisions of this article relating to this article and state laws which are applicable under the circumstances. Sec. 10-53. Inspections; notices. (a) Inspections. Periodically the "health director" shall inspect each food service establishment located in the city, for the purpose of determining compliance with this article. The "health director" shall be permitted to examine the records of the establishment to obtain pertinent information pertaining to food and supplies purchased, received or used, and persons employed. The "health director" shall make as many additional inspections and re-inspections as are necessary for the enforcement of this article. (b) Inspection record. Whenever the "health director" makes an inspection, such official shall record the findings on an inspection report form provided for this purpose and shall furnish a copy of such inspection report form to the permit holder or operator or person in charge at the time of inspection. (c) Issuance of notices; correction by temporary establishments. Whenever the "health director" makes an inspection of an establishment and discovers that any of the requirements of this article have been violated, such official shall notify the permit holder or operator of such violations by means of inspection report form or other written notice. In such notification, the "health director" shall: (1) List the specific violations found. (2) If considered necessary, establish a specific and reasonable period of time for the correction of violations listed on the inspection report form. Temporary food service establishments shall correct violations in a period of time not to exceed twenty-four (24) hours. (d) Service of notices. Notices provided for under this section shall be deemed to have been properly served when a copy of the inspection report form or other notice has been delivered personally to the permit holder or person in charge, or such notice has been sent by registered mail or certified mail, return receipt requested, to the last known address of the permit holder. A copy of such notice shall be filed with records of the "health director." Sec. 10-54. Approval of establishments outside jurisdiction. Food from establishments outside the jurisdiction of the health authority of the city may be sold within the city, if approved by the health authority through reports received from responsible authorities in other jurisdictions from which the food originates. Sec. 10-55. Permits and Exemptions. (a) A person may not operate a food establishment without a permit issued by the regulatory authority. Permits are not transferable from one person to another or from one location to another location, except as otherwise permitted by this ordinance. A valid permit must be posted in or on every food establishment regulated by this ordinance. (b) A food establishment operated solely by a nonprofit organization is exempt from paying the permitting fees as required herein. The regulatory authority may require any information necessary to determine whether an organization is nonprofit for the purposes of this exemption. Sec. 10-56. Application for Permit and Fees. (a) Any person desiring to operate a food establishment must make a written application for a permit on forms provided by the regulatory authority. The application must contain the name and address of each applicant, the location and type of the proposed food establishment and the applicable fee. An incomplete application will not be accepted. Failure to provide all required information or falsifying information required may result in denial or revocation of the permit. Renewals of permits are required on an annual basis and the same information is required for a renewal permit as for an initial permit. (b) Prior to the approval of an initial permit or the renewal of an existing permit, the regulatory authority shall inspect the proposed food establishment to determine compliance with state laws and rules. A food establishment that does not comply with state laws and rules will be denied a permit or the renewal of a permit. (c) All applicable fees under this ordinance shall be established by resolution of the City Council. Sec. 10-57. Review and Approval of Plans. (a) Whenever a food establishment is constructed or extensively remodeled and whenever an existing structure is converted to use as a food establishment, engineered, prepared plans and specifications for such construction, remodeling or conversion shall be submitted to the Building Official for review before work is begun. Extensive remodeling means that twenty percent (20%) or greater of the area of the food establishment is to be remodeled. The plans and specifications shall indicate the proposed layout, equipment arrangement, mechanical and construction of materials, and the type and model of proposed fixed equipment and facilities in accordance with this ordinance. The construction, remodeling or conversion shall conform to the approved plans and specifications. (b) Failure to follow the approved plans and specification will result in a permit denial, suspension, or revocation. (c) The provisions of this Chapter regarding food establishment construction or remodel are in addition to other applicable building and licensing ordinances. Sec. 10-58. Catastrophe. In the event of a fire, flood or other catastrophe, the owner or operator of a produce, food processing, food service establishment, or retail food store shall upon the cessation of such catastrophe, secure the premises, and move all perishable food from the danger of spoilage. Sec. 10-59. Certified Food Service Operator. (1) Purpose. The purpose of this subsection is to require the certification of supervisory personnel of food service establishments; so that supervisory personnel shall have knowledge of safe techniques for storage, preparation, display and service of foods with the underlying purpose of preventing foodborne illness and protecting the public health and so that supervisory personnel shall have knowledge to train employees under their supervision regarding same. (a) For the purpose of this subsection: 1. Supervisory personnel means individuals having supervisory, training, or management responsibilities as well as any other person working in a food service establishment who may be in charge of food preparation or service with authority and responsibility to direct or control such activities. 2. Food means any raw, cooked, or processed edible substance, ice, beverage or ingredient used or intended for use or sale in whole or in part, for human consumption. 3. Foodborne illness means an incident in which two (2) or more persons experience a similar illness, usually gastrointestinal in nature, after ingestion of a common food, and epidemiological analysis implicates the food as the source of the illness. 4. Food service establishment means any place where food is prepared or provided and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the premises and regardless of whether or not there is a charge for the food. The term also includes retail food stores, mobile food units, and pushcarts. The term does not include private homes where food is prepared or served without compensation for individual family consumption, the location of food vending machines, and supply vehicles. 5. Law includes federal, state and local statutes, ordinances and regulations. 6. Mobile food unit means a vehicle-mounted food service establishment designed to be readily moveable. 7. Packaged means contained in bottle, can, carton, secure wrapping or other types of containers and includes both hermetically non-hermetically sealed packaging. 8. Person includes an individual or individuals, a partnership, a corporation, an association, or other legal entity. 9. Person in charge means the individual present in a food service establishment who is represented to the designated representative of the regulatory authority as the supervisor of the food service establishment at the time of inspection. If no individual is the apparent supervisor, then any employee present may be designated by the health authority as the person in charge. A person who exercises control over or operates a mobile food unit or push cart is the person in charge. 10. Potentially hazardous food means any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacean, or other ingredients including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. The term does not include clean, whole, uncracked, odor free shell eggs or foods which have a pH level of 4.5 or below or a water activity (Aw) value of 0.85 or less. Il. Pushcart means a non-self-propelled vehicle limited to serving non- potentially hazardous foods or commissary-wrapped food or limited to the preparation and serving of frankfurters. 12. Regulatory authority means the state and/or local enforcement authority or authorities having jurisdiction over the food service establishment. 13. Temporary food service establishment means a food service establishment that operates at a fixed location for a period of time of not more than fourteen (14) consecutive days in conjunction with a single event or celebration. (b) Food service operator's certification required. 1. Except as provided in subsection (c) below, it shall be unlawful for any person owning, operating or managing any food service establishment within the City of The Colony to fail to employ and fail to keep on each shift in his employment at least one certified food service operator, who is in a supervisory position at said establishment and who has a valid and current certificate which satisfies the requirements of subsection (d) below. A certified operator must be an on-site employee of the permitted establishment. 2. The regulatory authority will require additional certified operators (minimum one (1) per shift) to ensure that all food preparation and service is performed under the direction of certified supervisory personnel. It shall be unlawful for any person owning, operating, or managing a food service establishment to be operated with less than the required number of operators. 3. Whenever the food service operator holding the certificate terminates employment, is terminated, or transferred to another food service establishment, the person owning, operating or managing the food establishment shall be allowed sixty (60) days from thc date of termination or transfer of the certificate holder to comply with this section. (c) Exemption from requirements. 1. Food service requirements that serve, sell or distribute only pre-packaged foods and/or food which are not potentially hazardous may be exempted from these requirements by the regulatory authority. 2. The regulatory authority may waive or modify the requirements of this ordinance for temporary food service establishments special facilities and/or events. (d) Proof of knowledge. All certified food service operators who register in the City of The Colony must provide the regulatory authority with documentation verifying their knowledge of safe food handling procedures and foodborne illness prevention. Satisfactory documentation may consist of one of the following: 1. A certificate from an accredited testing agency which certifies that the applicant has achieved a passing score on an examination, which has been designed to measure the understanding and application of safe food handling techniques and practices. 2. A certificate from a training program which has been approved by the state health department under the provisions of state law. 3. The regulatory authority may require certified supervisory personnel to successfully complete additional training as specified by the regulatory authority, when: a. The employing food service establishment has repeated or persistent violations of critical health code requirements and effective corrective action has not been taken over a reasonable period of time, as determined by the regulatory authority; or b. The employing food service establishment is suspected by the regulatory authority as the source of foodborne illness. All costs associated with required additional training shall be the responsibility of the food service establishment. (e) Term of certification. When the food service operator meets the requirements of paragraph (d) above, the regulatory authority shall issue a food service operator certificate. This certificate shall expire at the end of three (3) years from date of issue. (f) Renewal of certificate. All certified food service operators shall renew their certificate every three (3) years in accordance with paragraph (d). (g) Proof of certification. Each certified food service operator shall display his/her certificate in a prominent location in the establishment or carry it on his/her person when on duty, as directed by the regulatory authority. (h) Certificate not transferable. A food service operator's certificate is not transferable from one person to another person. (i) Registration of certified food service operators. 1. All certified food service operators who are employed by food service establishments within the City of The Colony will register with the inspections department o the city, effective January 1990. 2. The holder of a food service operator certificate will be allowed ninety (90) days from the effective date to comply with registration at the inspections department. 3. The term of this registration will he one (1) year, and shall be renewable on the anniversary of registration with the inspections department. (j) Penal~v for violation. Any person (or responsible officer of that person) who violates a provision of this subsection or any person who is the holder of a food service operator's certificate who does not comply with the requirements of this subsection, shall be deemed guilty of an offense and upon conviction of the Municipal Court of the City of The Colony, shall be subject to a fine not to exceed two thousand dollars ($2,000.00) for each offense, and each and every day such violation continues, shall constitute a separate offense. (k) Injunctive relief. In addition to and cumulative of all other penalties, the City of The Colony shall have the right to seek injunctive relief fro any and all violations of this subsection. Sec. 10-60. Suspension of Permit. (a) The City may, without warning, notice, or hearing suspend any permit to operate a food establishment if the operation of the food establishment constitutes an imminent hazard to public health. Suspension is effective upon service of the notice required by this section. When a permit is suspended, food operations operation shall immediately cease. Whenever a permit is suspended, the holder of the permit shall be afforded the opportunity for a hearing within twenty (20) calendar days of receipt of a request for a hearing. (b) Whenever a permit is suspended, the holder of the permit or the person in charge shall be notified in writing that the permit is, upon service of the notice, immediately suspended and that an opportunity for a hearing will be provided if a written request for a hearing is filed with the City by the holder of the permit within ten (10) days. If no written request for a hearing is filed within ten days, the suspension is sustained. The City may end the suspension at any time if reasons for the suspension no longer exist. Sec. 10-61. Revocation of Permit. (a) The City may, after providing opportunity for a hearing, revoke a permit for serious or repeated violations of any of the requirements of these rules or the interference with the City in the performance of its duties. Prior to revocation, the City shall notify the holder of the permit or the person in charge, in writing, of the reason for which the permit is subject to revocation and that the permit shall be revoked at the end of the ten {10) day period following service of such notice unless a written request for a hearing is filed with the City by the holder of the permit within such ten day period. (b) If no request for hearing is filed within the ten (10) day period, the revocation of the permit becomes final. Sec. 10-62. Administrative Process. (a) A notice as required in these rules is properly served when it is delivered to the holder of the permit or the person in charge, or when it is sent by registered or certified mail, return receipt requested, to the last known address of the holder of the permit. A copy of the notice shall be filed in the records of the City. (h) The hearings provided for in this section shall be conducted by the Board of Adjustment at a time and place designated by the Board. Based upon the recorded evidence of such a hearing, the Board shall make final findings, and shall sustain, modify or rescind any notice or order considered in the hearing. The City shall furnish a written report of the hearing decision to the holder of the permit. Sec. 10-63. Remedies. (a) Any person who violates a provision of this article and any person who is the permit holder of or otherwise operates a food service establishment that does not comply with the requirements of this article and any responsible officer of that permit holder or those persons shall be fined in an amount not to exceed two thousand dollars ($2,000.00). (b) The City may seek to enjoin violations of this article. Sees. 10-64-10-69. Reserved." SECTION 3. SAVINGS CLAUSE Chapter 10 of the Code of Ordinances of the City of The Colony, as amended, shall remain in full force and effect, save and except as amended by this ordinance. SECTION 4. SEVERABILITY The sections, paragraphs, sentences, phrases, clauses and words of this ordinance are severable, and if any section, paragraph, sentence, phrase, clause or word in this ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council hereby declares that it would have passed such remaining portions of this ordinance despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 5. REPEALING CLAUSE That all provisions of the Ordinances of the City of The Colony, Texas, in conflict with the provisions of this ordinance be, and the same are hereby amended, repealed, and all other provisions of the Ordinances of the City not in conflict ~vith the provisions of this ordinance shall remain in full force and effect. SECTION 6. PENALTY Any person, firm or corporation violating any of the provisions of this ordinance or the Zoning Ordinance, as amended hereby, shall be deemed guilty of a misdemeanor and, upon conviction in the Municipal Court of the City of The Colony, Texas, shall be punished by a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) per day for each offense. SECTION 7. EFFECTIVE DATE This ordinance shall become effective from and after its adoption and publication as provided by law. PASSED AND APPROVED by the City Council of the City of The Colony, Texas this the 3rd day of May, 2004. PROVED: Jo~n Dillard; M~yor City of The Colony, Texas A~EST' Christie Wilson, City Secretary Robert E. H~, City Attorney