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20061024 2006-10 ORDINANCE NO. 2006-10 AN ORDINANCE AMENDING CHAPTER 46, ARTICLE II, DIVISIONS 1 AND 2 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA, PERTAINING TO THE REGULATION OF CERTAIN FOOD AND FOOD SERVICE ESTABLISHMENTS WITHIN THE CITY OF FAIRFAX BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that Chapter 46, Article II, Divisions 1 and 2, of the Code of the City of Fairfax, Virginia, are hereby amended to read in their entirety as follows: CHAPTER 46, ARTICLE II. FOOD AND FOOD ESTABLISHMENTS DIVISION 1. GENERALLY Section 46-31. Definitions. The following words, terms and phrases when used in this article and the FDA Food Code, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Base of operations means a permitted food establishment that contains all of the necessary equipment and storage facilities to support the operation of a mobile food unit. Certificate means the document issued by the director, or the document issued by another jurisdiction or private vendor that is accepted by the director, which demonstrates that the individual identified on the certificate has been determined to be a certified food manager or a certified limited food manager. 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. Conference for Food Protection means the national conference held biennially during the even-numbered years directed by the delegates of the states, territories and District of Columbia who join together with representatives of industry, academic institutions, professional associations and consumer groups to promote food safety and consumer protection by identifying and addressing problems in the production, processing, packaging, distribution, sale and service of foods and adopting sound, uniform procedures which will be accepted by food regulatory agencies and industry. Director means the director of the county department of health or the designee of the director. FDA Food Code means the 2005 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: (1) An establishment that offers only prepackaged foods that are not potentially hazardous; (2) A produce stand that offers only whole, uncut fresh fruits and vegetables; (3) A kitchen in a private home that prepares food that is not potentially hazardous for sale or consumption at a nonprofit 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; (4) 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 bedrooms does not exceed six (6), breakfast' is the only meal offered, the number of guests served does not exceed eighteen (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; (5) Private homes or vehicles where food is prepared or served for noncommercial consumption by the owners, occupants or their guests; (6) A food processing plant or (7) Convenience stores or gas stations that have fifteen (15) or fewer seats at which food is served to the public on the premises of the convenience store or gas station and are not associated with a national or regional restaurant chain. Limited food establishment means a food establishment that serves only hot dogs 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 46-32. Adoption of the United States Food and Drug Administration/Public Health Service 2005 Food Code. (a) Chapters 1 through 8, inclusive, and all appendices and annexes of the United States Food and Drug Administration, Public Health Service 2005 Food 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 46-33, 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 46-31. (b) A certified copy of the FDA Food Code shall be maintained by the director at the main administrative office of the county department of health, and it shall be available for review by members of the public. Section 46.-33. 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: (1) Section 3-501. 16(A)(2)(b )(ii) and Section 3-501. 17(A)(2)(b ) of the FDA Food Code is modified to read: No later than January 1, 2008, the equipment is upgraded or replaced to maintain Food at a temperature of 50C (41 OF) or less. (2) Section 8-802.1 O(A) of Annex 1 is amended to read: If admission to the Premises of a Food Establishment is denied or other circumstances exist that would justify an inspection order under applicable law, 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. (3) Section 4-205.10 is amended to read: (A) Food Equipment, as defined in Section 1-201.10 (B)(25) Equipment, of the 2005 FDA Model Food Code, that is certified or classified for sanitation by an American National Standards Institute (ANSI)-accredited certification program will be deemed to comply with this article. The definition of equipment shall not include kitchenware, tableware or utensils. (B) Food Equipment in a food establishment shall be: (1) Certified or classified for sanitation by an American National Standards Institute (ANSI)-accredited certification program, or; (2) Certified or classified for sanitation by an equivalent certification program to that specified in subparagraph (1) of this paragraph; or (3) Approved by the director before installation and/or use. (4) Section 6-402.11 is amended to read: Public toilet rooms shall be provided for consumers whenever seating for consumers is provided on the premises. Consumers shall not be permitted to gain access to toilet rooms by passing through a kitchen, food preparation, food storage, or utensil washing area. Toilet rooms shall be conveniently located and accessible to employees during all hours of operation. Toilet rooms must be entirely separate and apart from any rooms or areas used for utensil washing or for the manufacture, storage, and handling of food products. Public and employee toilet facilities shall be installed according to and in the number required by the Virginia Uniform Statewide Building Code (VUSBC). (5) Sections 2-102.11(B), 2-102.20, 8-201.11, 8-201.12, 8-303.10 and 8-304.10 are deleted. Section 46-34. 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 in the public view. Food establishment permits are issued for a calendar year and expire on December 31 regardless of the month of issue. (b) An initial application fee and an annual renewal application fee of Forty- Five Dollars ($45.00) shall be assessed for each permitted food establishment, including temporary food stands operating less than fourteen (14) days. 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 food establishments operated by the office of food and nutrition services of the county or city public schools; or to any 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 on or before December 31 or upon initial application. The fee shall not be prorated. An additional fee of Ten Dollars ($10.00) shall be assessed for renewal applications received after December 31. Section 46-35. 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 may deem advisable upon determining that the operation of such service, service areas, events or affairs will not adversely affect the public health. Section 46-36. Food manager certificate and responsibility. (a) It shall be unlawful to operate a food establishment unless it is under the immediate control of a certified food manager; provided that a limited food establishment shall not be in violation of this subsection ifit is under the immediate control of a 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 46-37. Issuance of food manager certificate. (a) Any person desiring to obtain a certificate required by section 46-36 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. 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. (b) A food manager certificate, shall be issued only to a person who has passed a food manager certification examination from a food protection manager certification program that is evaluated and listed by an accrediting agency recognized by the Conference for Food Protection. (c) A food manager certificate shall be issued in the name of an individual applicant, shall not be assignable or transferable, shall be valid only for a period of five (5) years from the date of notification of the successful completion of an approved exam, and shall remain the property ofthe issuing authority. (d) A food manager certificate shall be renewed for a five (5) year period upon passing a food manager certification examination from a food protection manager certification program that is evaluated and listed by an accrediting agency recognized by the Conference for Food Protection. ( e) A limited food manager certificate shall be issued only to a person who has passed a limited food manager certification examination approved by the Director. (f) A limited food manager certificate shall be issued in the name of an individual applicant, shall not be assignable or transferable, shall be valid only for a period of five (5) years from the date of notification of the successful completion of the approved exam and shall remain the property of the issuing authority. (g) A limited food manager certificate shall be renewed for a five (5) year period upon passing a limited food manager certification examination approved by the Director. (h) If the applicant's certificate has been revoked or suspended during the preceding five (5) years, the applicant shall retake and pass either a food manager certification examination from a food protection manager certification program that is evaluated and listed by an accrediting agency recognized by the Conference for Food Protection or a limited food manager certification examination approved by the director, whichever is appropriate. Section 46-38. Suspension of permit or certificate in emergencies. (a) If 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 (b) of 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 ten days. The holder of the permit or certificate shall be afforded an opportunity for hearing within twenty (20) days of receipt by the director of a request for a hearing from the holder. If no written request for a hearing is filed within ten (10) days, the suspension is sustained. The director may end a suspension at any time if the reason for suspension no longer exists. (c) The director, in lieu of suspending a permit, may suspend the applicability of the permit to a specific commissary or specific products. Section 46-39. 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. (b) Prior to ordering the revocation, the director shall notify, 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 (10th) 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 ten (10) day period. If no request for hearing is filed within the ten (10) day period, the permit or certificate shall be revoked by order of the director and the revocation shall be final. Section 46-40. Service of notices. A 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. A copy of the notice shall be filed with the records of the department of health. Section 46-41. Closing of food establishments. Notwithstanding any other provision of this article, the director shall order the closure of any food establishment which is operated without the permit required by section 46-34, or is operated without a certified food manager being in control as required by section 46-36. 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 the 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. Section. 46-42. 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 46-43. 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. The establishment for which an application for a new permit is submitted after revocation shall meet all applicable provisions of this article. Section 46-44. 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 guilty of a class 1 misdemeanor in accordance with Virginia law. Section 46-45. 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. The 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. The director's approval of any plans or specifications shall not be viewed to be a determination that such plans or specifications are free from error. The owner shall have 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 compliance with the approved plans and specifications and with the requirements contained in the article. (c) A fee of Two Hundred and Forty Dollars ($240.00) shall be paid to the director upon submission of plans. DIVISION 2. MOBILE UNITS Section 46-61. General. Mobile food units and limited service mobile food units shall comply with the requirements of this article. All units are to be clearly identified with the trade name the unit is operated under and contact phone number conspicuously displayed on both sides of the unit. Section 46-62. 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 operations. (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, and 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 CFR 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 46-63. Single service utensils. Mobile food units and limited service mobile food units shall dispense only single service utensils for use by the customer. Section 46-64. Base of operations. Mobile food units and limited service mobile food units shall operate from a base of operations 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 of the City of Fairfax, Virginia 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: October 10, 2006 PUBLIC HEARING: October 24, 2006 ENACTED: October 30,2006 Gw~~ Mayor /0ef ATTEST: ~J City Clerk VOTE: Councilwoman Cross Councilman Greenfield Councilwoman Lyon Councilman Rasmussen Councilman Silverthorne Councilmember Winter Aye Absent Aye Aye Aye Aye