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19980623 1998-18ORDINANCE NO. 1998- 18 AN ORDINANCE REPEALING ARTICLE III, CHAPTER 11 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA AND ENACTING A NEW ARTICLE III CONCERNING THE REGULATION OF FOOD AND FOOD SERVICE ESTABLISHMENTS. 1. BE IT ORDAINED by the City Council of the City of Fairfax, Virginia, that Article III, Chapter 11 of the Code of the City of Fairfax, Virginia is hereby repealed and a new Article III is hereby enacted to read in its entirety as follows: Article III. Food and Food Service Establishments DIVISION 1. GENERAL. Section 11-12. Definitions For the purposes of this article and the application of the FDA Food Code, as amended, unless the context shall otherwise clearly require, the following words and phrases shall have the meanings respectively ascribed to them by this section: Base ode operation means a permitted;food establishment that contains all of the necessary equipment and storage deaci[ities m support the operation odea mobile deood unit. Cert~l~cate means the document issued b,v the director, or the document issued b~v another jurisdiction or private vendor that is accepted b.v the director, which demonstrates that the individual identified on the certificate has been determined m be a certifieddeood manager or a certified limited food manager. 1998-18 -2 Certified food manager means a person who has passed an examination approved by the director, or an examination in another jurisdiction that is accepted by the director, and has received a certified food manager's certificate issued or recognized by the director. Certified limited food manager means a person who has passed an examination approved by the director, or an examination in another jurisdiction that is accepted by the director, and has received a certified limited food manager's certificate issued or recognized by the director. Director means the Director of the Fairfax County Department of Health or the designee of the director. FDA Food Code means the 1997 Food Code, as adopted and promulgated by the United States Food and Drug Administration, Public Health Service, as that Code may be amended from time to time. Food establishment means an operation that stores, prepares, serves, or otherwise provides food for human consumption, and provides such food directly to a member of the public for consumption; provided, that "food establishment" shall not include the following: (a) an establishment that offers only prepackaged foods that are not potentially hazardous; (b) a produce stand that offers only whole, uncut fresh fruits and vegetables; (c) a kitchen in a private borne that prepares food that is not potentially hazardous for sale or consumption at a non-profit or charitable function if the consumer is informed, by means of a clearly visible sign at the point of sale or consumption, that the food was prepared in a kitchen that is not subject to regulation or inspection by the director; (d) a kitchen in a private home that prepares and offers food to guests, for an exchange of consideration, if the home is owner-occupied, the number of available guest 1998-18 -3 bedrooms does not exceed six, breakfast is the only meal offered, the number of guests served does not exceed 18, and the consumer is informed by statements contained in published advertisements, mailed brochures or signs posted in the registration or dining area that the food is prepared in a kitchen that is not regulated and inspected by the director; or (e) private homes or vehicles where food is prepared or served for noncommercial consumption by the owners, occupants or their guests. (/) a food processing plant. Limited food establishment means a food establishment that serves only hotdogs or frankfurter-type foods, prepackaged foods or foods that are not potentially hazardous foods. Limited service mobile food unit means a limited food establishment that is designed to be readily moveable. Mobile food unit means a food establishment that is designed to be readily moveable. Permit means the license issued by the director that authorizes a person to operate a food establishment. Person in charge means the individual present in a food establishment who is responsible for the food service operation at the time of inspection authorized by this chapter. If no single individual is responsible for the food service operation, then any employee present shall be deemed the "person in charge." Section 11-13.1 Adoption of the United States Food and Drug Administration/Public Health Service 1997 Food Code. (a) Chapters 1 through 8, inclusive, and all appendices and annexes of the United States Food and Drug Administration, Public Health Service 1997 Food Code ("FDA Food / 1998-18 -4 Code "), as adopted and promulgated by the United States Food and Drug Administration, Public Health Service ("FDA/USPHS"), including the modifications of the FDA Food Code that are set out in Section 11-3.2, are hereby adopted and incorporated in their entirety into this article as if fully set forth herein. In the event of conflict or inconsistency between this article and the FDA Food Code, the provisions of this Article shall control. When used in the FDA Food Code, the term "Health Authority" shall mean the Director, as defined in Section 11-12 of this article. (b) ,4 certified copy of the FDA Food Code shall be maintained by the Director at the main administrative office of the Fairfax County Department of Health, and it shall be available for review by members of the public. Section 11-13.2. Modifications to FDA Food Code. The following sections of the FDA Food Code, as incorporated into the Code of the City of Fairfax, are modified as follows: (a) Section 3-301.11(B) is amended to read: Except when washing fruits and vegetables as specified under ~ 3- 302.15 or when otherwise APPROVED, FOOD Fd~LO YEES should not contact exposed, READY-TO-EA T FOOD with their bare hands and should use suitable UTENSILS such as deli tissue, spatulas, tongs, SINGLE-USE gloves or dispensing EQUIPMENT. The opening paragraph of section 3-401.11 (A) is amended to read: Except as specified under ~(B) and ¶(C) of this section, or as otherwise ordered by the immediate consumer, raw animal 1998-18 FOODS such as eggs, FISH, MEAT, POULTRY, and FOODS containing these raw animal FOODS, shall be cooked to heat all parts of the FOOD to a temperature and for a time that complies with one of the following methods based on the FOOD that is being cooked: Section 3-401. l l (C)(1) is amended to read: The FOOD is a raw animal FOOD such as raw egg; raw fish; raw-marinated FISH; raw MOLL USCAN SHELLFISH,. steak tartare; or a partially cooked FOOD such as lightly cooked FISH, rare MEAT, and soft cooked eggs that is served or offered for sale in a READY-TO-EA T form, and (i) the consumer orders the FOOD to be cooked in a manner other than as specified under ~(A) or ~(B) of this section, or (ii) the FOOD is prepared by alternative time/temperature combinations that provide equivalent heat lethality and result in safe FOOD; or Section 8-802.10(A) of Annex 1 is amended to read: If admission to the PRFd~SES ora FOOD ESTABLISHA/IFdVT is denied or other circumstances exist that would justify an inspection order under LA W, to make an inspection that includes the recordation of information by any means of audio-visual recordation including (but not limited to) photography, tape- recording and videotaping. Sections 3-603.11, 8-201.11, 8-201.12, 8-303.10 and 8-304.10 are deleted -5 1998-18 -6 Division 2 Compliance Procedures; Application Fee; penalties; plans and specifications. Section 11-14 Permits for food establishments. (a) No person shall operate a food establishment unless that person possesses a valid permit issued by the director. Only a person who complies with the requirements of this article shall be entitled to receive or retain such a permit. Permits are not transferable. A valid permit shall be posted in every food establishment in a conspicuous place. (b) An annual application fee of $25 shall be assessed for each permitted food establishment. A portion of this fee is designated to support a program of food safety education to include, for example, but not be limited to a quarterly newsletter, food advisories, food safety publications. Such fee shall not be applicable to temporary food stand~ operating less than 14 days; to food establishments operated by the Office of Food and Nutrition Services of the Fairfax County School Public Schools; or to any Fairfax City agency; however, such fees shall apply to private vendors subcontracted by the City to operate food establishments. The annual fee shall be based on a calendar year and shall be due and payable in the month of dctnuary or upon initial application. The fee shall not be prorated An additional fee orS10 shall be assessed for renewal applications received after January 31. Section 11-15. Exemptions. The director may exempt coffee and related beverage service and service areas and such one time events or affairs from such provisions or requirements of this article as the director I 1998-18 -7 may deem advisable upon determining that the operation of such service, service areas, events or affairs will not adversely affect the public health. Section 11-16.1. Food manager certificate and responsibility. (a) It shall be unlawful to operate a food establishment unless it is under the immediate control ora certified food manager; provided, that a limited food establishment sba# not be in violation of this subsection if it is under the immediate control ora certified limited food manager. (b) The food manager or limited food manager shall be responsible for training food service personnel in sanitary food-handling techniques and proper methods of food protection, and for ensuring that good public health and food protection practices and sanitary techniques in manufacturing, storing, serving and transporting foods are used at all times on the premises under his control. Section 11-16. 2. Issuance of food manager certificate. (a) Any person desiring to obtain a certificate required by Section 11-16.1 shall apply in writing on forms provided by the director or on forms accepted by the director. Such application shall include the name and address of the applicant, the location and type of the proposed food establishment and the signature of the applicant. (1) The director may, by specific contract issued in accordance with appropriate administrative procedures, designate a private vendor to issue, on the director's behalf, a food manager certificate to any person who successfully complies with the provisions of this article. 1998-18 -8 (b) .4 food manager certificate, or a limited food manager certificate, shall be issued only to a person who has passed a food manager certification examination, or a limited food manager certification examination, approved by the director. (c) .4 food manager certificate, or a limited food manager certificate, shall be issued in the name of an individual applicant only, shall not be assignable or transferable, and shall be valid only for a period of three years from the date of notification of the successful completion of the approved exam; or date of issuance for renewals. (d) .4 food manager or a limited food manager shall be entitled to the renewal of the certificate for a subsequent three year period provided that: (1) an application for renewal is filed with the director not more than 30 days following the expiration date of the certificate; and (2) if the applicant's certificate has been revoked or suspended during the preceding three years, the applicant shall retake and pass either a food manager certification examination or a limited food manager certification examination approved by the director, whichever is appropriate. Section 11-17. Suspension of permit or certificate in emergencies. (a) lf he deems an emergency to exist, the director may without warning, notice or hearing, order the suspension of any permit or certificate issued under this article if the holder of the permit or certificate does not comply with the requirements of this article, or if the operation of the food establishment does not comply with the requirements of this article or if the operation of the food establishment otherwise constitutes a substantial and imminent hazard to public health. Suspension is effective upon service of the notice required by subsection (13) of 1998-18 -9 this section. When a permit is suspended, all food-handling operations at the food establishment shall immediately cease. When a certificate is suspended food-handling operations shall immediately cease unless another certified food manager or, where appropriate, certified limited food manager is present and in control. If the reason for the suspension is eliminated prior to the suspension being sustained by the director, the suspension shall be terminated (b) Whenever a permit or certificate has been ordered suspended, the holder of the permit or certificate or the person in charge shall be notified in writing that the permit or certificate is suspended effective upon service of the notice and that an opportunity for a hearing will be provided if written request for a hearing is filed with the director by the holder of the permit or certificate within 10 days. The holder of the permit or certificate shall be afforded an opportunity for hearing within 20 days of receipt by the director ora request for a hearing from If no written request for a hearing is ftled within 10 days, the suspension is The director may end a suspension at any time if the reason for suspension no longer the holder. sustained exists. (c) The director, in lieu of suspending a permit, may suspend the applicabiBty of the permit to a specific commissary or specific products. Section 11-18. Revocation of permit or certificate. (a) The director may, after providing the opportunity for a hearing, order the revocation of a permit or certificate issued under this article for serious or repeated violations of any of the requirements of this article or for interference with the director in the performance of the duties defined in this article. 1998-18 -10 (b) Prior to ordering the revocation, the director shall noti~, in writing, the holder of the permit or certificate or the person in charge of the specific reasons for which the permit or certificate is to be revoked and that the permit or certificate shall be revoked on the tenth day following service of the notice unless a written request for a hearing is filed with the director by the holder of the permit or certificate within such l O-~ perio~ ;f no request for hearing is filed within the lO-day period the permit or certificate shall be revoked by order of the director and the revocation shall be final. Section 11-18.1. Service of notices. ,4 notice required by this article is properly served when it is delivered to the holder of the permit or certificate or to 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 or certificate..4 copy of the notice shall be filed with the records of the Department of Health. Section 11-18. 2. Closing of food establishments. The director shall order the closure of any food establishment which is operated without the permit required by Section 11-14, or is operated without a certified food manager being in control as required by Section 11-16.1. The closure order shall be in writing, shall specifically state the reason for the closure and shall clearly specify the compliance requirements necessary to have the order revoked The Sheriff of Fairfax County shall enforce the closure order until it is rescinded by the director in writing. Upon receipt of satisfactory proof of compliance with the written requirements set forth in the closure order, the director shall immediately issue a written rescission of the order. 1998-18 -11 Section 11-18.3. Hearings. The hearings provided for in this article shall be conducted by the director at a time and place designated by the director. Any oral testimony given at a hearing shall be summarily reported or recorded The director shall make a finding based upon the hearing record and shall issue, sustain, modify or rescind any notice or order considered in the hearing. A written report of the hearing decision shall be furnished to the holder of the permit or certificate by the director. Section 11-18. 4. Application after revocation. Whenever a revocation of a permit or certificate has become final, the holder of the revoked permit or certificate may submit a written application for a new permit or certificate. Section 11-19. Violations and penalties. It shall be unlawful for a person to fail to comply with any provision of this article, including a provision of the FDA Food Code, that applies to the person. It also shall be unlawful for any food establishment, limited food establishment, mobile food unit or limited service mobile food unit to fail to comply with any provision of this article that applies to it. A person who fails to comply with any provision applicable to him shall be in violation of this article. The owner of any such food establishment or mobile food unit which fails to comply with any applicable provision shall be in violation of this article. For each violation, the person or owner shall be punished as a class 1 misdemeanor. 1998-18 -12 Section 11-20. Submission of plans, specifications and other data; inspection prior to operation; fees. (a) Whenever a food establishment is constructed or remodeled or whenever an existing structure is converted to use as a food establishment, plans and specifications for such construction, remodeling, or conversion shall be submitted to the director for review and approval prior to commencement of such construction, remodeling or conversion, lhe director shall verify that the plans and specifications conform to the requirements of this article and the FDA Food Code. The plans and specifications shall include the intended menu, anticipated volume of food to be stored, prepared, and sold or served, the proposed layout and arrangement of the facilities, plumbing plans, mechanical plans, electrical plans, finish schedules, lighting schedules, and the types, model numbers, locations, dimensions, performance capacities, and installation specifications of proposed fixed equipment and facilities. The director may require additional plans or information, as needed, depending on the nature and extent of the proposed construction, remodeling or conversion. The director shall approve the plans and specifications if they meet the requirements of this article and the FDA Food Code. lhe director's approval of any plans or specifications shall not be viewed to be a determination that said plans or specifications are free from error. The owner shall bare final responsibility for the accuracy and completeness of the plans and specifications, as well as for subsequent construction and installation. No food establishment shall be constructed, remodeled or converted except in accordance with plans and specifications approved by the director. (b) Whenever plans and specifications are required to be submitted and approved the director shall inspect the food establishment prior to its beginning operation to determine 1998-18 -13 compliance with the approved plans and specifications and with the requirements contained in this article. (c) A fee of $135 shall be paid to the director upon submission of plans. Division 3. Mobile Units Section 11-21.1. Requirements for types of mobile food units. (a) A mobile food unit shall be equipped with a hand sink and a three-compartment sink. However, the director may waive the requirement for a three-compartment sink if the menu items dispensed from the unit do not require extensive preparation and the unit has access to a three-compartment sink at the base of operation. (b) A limited service mobile food unit shall be equipped with a hand sink and a three- compartment sink. However, the director may waive the requirement for a hand sink if only prepackaged foods are to be dispensed or if an alternate method to hand washing, approved by the director, is used Such alternate methods may include, but are not limited to, use of disposable hand washing towelettes, disposable gloves, sanitizing solutions that meet the specifications of 21 C.F.R. ~ 178.1010 or other techniques approved by the director. The director may waive the requirement for a three-compartment sink if the limited service mobile food unit has access to a three-compartment sink at the base of operations or only prepackaged foods are to be dispensed Section 11-21.2. Single service utensils. Mobile food units and limited service mobile food units shall dispense only single service utensils for use by the customer. l 1998-18 -14 Section 11-21.3 Base of operation. Mobile food units and limited service mobile food units shall operate from a base of operation that possesses a food establishment permit issued in accordance with this article. However, the director may waive this requirement if the mobile food unit or limited service mobile food unit meets all construction standards applicable to the food items served by the unit. The director may allow a mobile;food unit or limited service mobile food unit to operate from a base of operation outside the City of Fairfax if the base of operation meets basic sanitation requirements and is permitted by another jurisdiction. This ordinance shall become effective as provided by law. INTRODUCED: PUBLIC HEARING: ADOPTED: June 9, 1998 June 23, 1998 June 23, 1998 ATTEST: The motion to adopt the ordinance was approved 4-0. Councilman Coughlan Councilman Greenfield Councilwoman Lyman Councilman Mershon Councilman Rasmussen Councilman Silverthorne aye aye absent absent aye aye ~~-'~ Mayo~ Date l