[HISTORY: Adopted by the Town of Derry 5-14-2012, effective 6-13-2012.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Alcoholic beverages — See Ch. 12.
[1]
Editor's Note: This legislation also superseded former Ch.
55, Food Service Establishments, adopted 5-4-2010.
[Amended 6-17-2014, effective 7-17-2014]
A.
The Town of Derry hereby adopts by reference the New Hampshire Rules
for the Sanitary Production and Distribution of Food, He-P 2300, and
any subsequent amendments thereto, so as to regulate food service
establishments operating within its jurisdiction. Where there is a
conflict between this chapter and He-P 2300, this chapter shall govern.
B.
Notwithstanding § 55-1A, the following sections of He-P 2300 shall be replaced with § 55-3 of the Code of the Town of Derry: He-P 2304.01(a)(1) and (2), He-P 2304.02(a), (d) and (i) and He-P 2304.03 through He-P 2304.05. Section He-P 2304.01(b) shall be replaced with § 55-1F. Sections He-P 2302.02, He-P 2304.12(d), He-P 2306.01(b)(3), He-P 2306.02(a)(19), He-P 2306.02(c), He-P 2306.04 and He-P 2312 shall be deleted. References in He-P 2306.06(a) regarding emergency telephone numbers shall be replaced with "notify the Department at 603-845-5520, or if at night or during the weekends, at 603-432-6121, then press zero."
C.
Wherever there is a reference to "Commissioner" in He-P 2300, it
is replaced and inserted is "Health Authority of the Town of Derry."
D.
Wherever there is a reference to "Department" in He-P 2300, it is
replaced and inserted is the "Derry Public Health Department."
E.
Wherever there are references to "RSA 541-A and He-C 200," they shall be replaced by § 55-3 of the Code of the Town of Derry.
F.
All fines and fees shall be made payable to the Town of Derry. All
applications, correspondence and fines shall be sent to:
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Department of Public Health
Town of Derry
14 Manning Street
Derry, NH 03038
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As used in this chapter, the following terms shall have the
meanings indicated:
The Town Council of the Town of Derry, New Hampshire, and
the Health Officer, in accordance with RSA 128:3.
Shall include all such establishments defined as such in
the New Hampshire Rules for the Sanitary Production and Distribution
of Food, He-P 2300. It shall also include those establishments that
offer for sale packaged non-potentially hazardous food to the public.
The Health Officer of the Town of Derry, New Hampshire, or
his designated representatives, whose appointments shall be under
the jurisdiction of RSA 128:1. He shall have police powers and sheriff's
powers as designated in RSA 147:4 and RSA 147:5.[1]
[1]
Editor's Note: The former definition of "sanitary food code,"
which immediately followed this definition, was repealed 6-17-2014,
effective 7-17-2014.
[Amended 6-17-2014, effective 7-17-2014]
It shall be unlawful for any person to operate a food service
establishment within the Town of Derry, New Hampshire, who does not
possess a valid license issued to him by the Health Authority. Only
a person who complies with the requirements of this chapter shall
be entitled to receive and retain such a license. Licenses shall not
be transferable from one person or place to another person or place.
A valid license shall be conspicuously posted in every food service
establishment. Licenses for temporary food service establishments
shall be issued for a period of time not to exceed 14 days.
A.
Issuance
of licenses and fees.
[Amended 7-2-2020; 1-14-2021]
(1)
Any
person desiring to operate a food service establishment shall make
written application for a license on forms provided by the Health
Authority. Upon receipt of such an application and the designated
license fee, and after inspection reveals that the requirements of
this chapter have been met, a license shall be issued to the applicant
by the Health Authority. All licenses issued shall be valid for one
year following the date of issuance, or one year following the date
of issuance of a provisional license, as applicable, and must be renewed
annually. The fees shall be payable to the Town of Derry and shall
be designated as follows:
[Amended 7-2-2020; 1-14-2021; 9-15-2023; 5-13-2024]
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Classification of Food Service Establishments/License
Fees
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(*TCS) = time/temperature control for safety
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Type
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Description
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Fee
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Type 1:
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Restaurants/cafeterias with 200 seats or more
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$550
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Retail food stores with > 4 food preparation areas
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Commercial processors selling > 100,000 packages/year
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Type 2:
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Restaurants/cafeterias with 75 to 199 seats
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$375
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Retail food stores with 2 to 3 food preparation areas
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Hospitals/nursing homes/assisted living facilities
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Type 3:
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Restaurants/cafeterias with 25 to 74 seats
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$250
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Retail food stores with one food preparation area
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Commercial processors selling < 100,000 packages/year of
*TCS foods
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Off-site caterers
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Bakeries/bakers
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Type 4:
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Restaurants/cafeterias with < 25 seats
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$175
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Establishments selling only prepackaged foods
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Commercial processors selling < 100,000 packages/year of
non-*TCS foods
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Home delivery services of packaged TCS or frozen food
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Liquor lounges, bars or clubs with small food prep area
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Warehouses; wholesalers/distributors
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Mobile unit servicing areas
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Day-care facilities that offer TCS foods
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Type 5:
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Temporary food establishments, including MFUs (not to exceed
14 days)
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$75
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Farm stands with TCS foods
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Homestead operations
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Lodging facilities with continental breakfast
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Bed-and-breakfasts
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Sellers of pre-packaged frozen meat or poultry
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Vending machines
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Non-Town-sponsored farmers' market vendors
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Type 6:
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Nonprofit organizations not holding a liquor license
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Waived; application submittal required
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Public/parochial schools and institutions
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Government facilities
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Town co-sponsored events/Derry farmers' market vendors
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Type 7:
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Annual mobile food unit (packaged and/or non-*TCS foods)
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$145
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Type 8:
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Annual mobile food unit (*TCS foods)
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$215
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Late renewal fee:
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$20
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NOTE: Licenses shall be subject to suspension if annual renewals
become more than five days overdue.
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(2)
Mobile food units (MFUs). Any person desiring to operate a mobile
food unit shall meet all applicable Town of Derry zoning regulations.
The applicant shall also meet all Code Enforcement, Health, Fire and
Life Safety Codes as adopted by the Town of Derry and the State of
New Hampshire Fire Code SAF-C 6000.
[Added 1-14-2021]
(3)
Temporary license.
[Added 1-14-2021]
(a)
A temporary license means a food-service establishment which
operates at a fixed location for a temporary period of time, not exceeding
two weeks, whether or not there is a charge for food.
(b)
Authorization of the site location is necessary prior to conducting
business in the Town.
(c)
A temporary food-service application shall be submitted to the
Health Department at least 10 days before the day of the event. A
copy of the operator's current food-service license and most recent
food inspection report are needed.
(d)
The operator shall provide a certificate of insurance indicating
the Town of Derry as an additional insurance for events on Town property.
(e)
Licenses shall be displayed in public view.
(f)
The operator is subject to inspection at any time.
(4)
Annual license.
[Added 1-14-2021]
(a)
Operators shall submit change of use paperwork to the Planning
Department.
(b)
A copy of legal filings with the New Hampshire Secretary of
State is needed.
(c)
Site location is subject to a minor site plan determination.
(e)
MFUs are not permitted to operate in noncommercial zones and
shall remain mobile and transitory by design, which is defined as
". . . the unique characteristic of a MFU is that it is not situated
in a fixed location with permanent water and sewage connections."
(f)
The operator shall display licenses for public view.
(g)
Businesses granted a license under this section consent to any
applicable real estate taxes imposed by the Town Council pursuant
to RSA Chapter 72 when property they occupy is determined to be taxable
by its use. A copy of each yearly MFU license shall be provided to
the Assessor.
(i)
Alcohol shall not be permitted on-site (BYOB) during MFU operating
hours.
B.
Suspension
of licenses. Licenses may be suspended temporarily by the Health Authority
for failure of the holder to comply with the requirements of this
chapter.
(1)
Whenever a license holder or operator has failed to comply with any
notice under the provisions of this chapter, the license holder or
operator shall be notified, in writing, that the license is, upon
service of the notice, immediately suspended and will be granted a
hearing before the Board of Health, provided that the licensee requests
a hearing, in writing, within 10 days of the service of the notice.
(2)
Notwithstanding the other provisions of this chapter, whenever the
Health Authority finds unsanitary or other conditions in the operations
of a food service establishment which, in his judgment, constitute
a substantial hazard to the public health, he may issue a written
notice to the license holder or operator citing such condition, the
corrective action to be taken, and specifying the time period within
which such actions shall be taken. If it is deemed necessary, the
Health Authority may issue a written order that includes specific
findings that the public health, safety or welfare requires the immediate
suspension of a license. The license is then immediately suspended,
and all food service operations shall be immediately discontinued.
Any person to whom such an order is issued shall comply immediately
therewith, and unless the person waives his or her right to hearing
by written notice to the Health Authority, the Board of Health shall
commence a hearing on the suspension as soon as possible but no later
than 10 days from the date of the suspension. A record of the proceeding
shall be made by either a certified shorthand court reporter or another
method may be used to ensure an adequate record for appeal. The record
will be the responsibility of the Board of Health. Unless expressly
waived by the licensee, failure to commence an adjudicative proceeding
within 10 working days shall mean that the suspension order is automatically
vacated. The Board of Health shall not again suspend the license for
the same conduct which formed the basis of the vacated suspension
without granting the licensee prior notice and an opportunity for
an adjudicative proceeding.
C.
In
the case of a temporary food service establishment, the violations
must be corrected within a specified period of time, not to exceed
24 hours. Failure to comply with such notice shall result in immediate
suspension of the license.
D.
Reinstatement
of suspended licenses. Any person whose license has been suspended
may, at any time, request a reinspection for the purpose of reinstatement
of the license. Within five days following receipt of a written request,
including a statement signed by the applicant that in his opinion
the conditions causing the suspension of the license have been corrected,
the Health Authority shall make a reinspection. If the applicant is
complying with the requirements of this chapter, the license shall
be reinstated.
E.
Revocation
of licenses. For serious or repeated violations of any of the requirements
of this chapter, or for interference with the Health Authority in
the performance of his duties, the license may be permanently revoked
after an opportunity for a hearing has been provided by the Board
of Health. Prior to such action, the Health Authority shall notify
the license holder, in writing, stating the reasons for which the
license is subject to revocation and advising that the license shall
be permanently revoked at the end of 10 days following service of
such notice, unless a request for a hearing is filed with the Board
of Health, by the license holder, within such ten-day period. Failure
to file within this time limit shall be a waiver of the license holder's
right to a hearing before the Board of Health. A license may be suspended
for cause pending its revocation or a hearing relative thereto.
F.
Administrative fines. A license holder may be levied an administrative
fine as per He-P 2306.02. Prior to imposing any fines, the Health
Authority shall notify the license holder, in writing, stating the
reasons for which the fine is being levied and advising the license
holder that a request for a hearing may be filed with the Board of
Health, by the license holder, within 10 days of receipt of the notice.
Failure to file within this time limit shall be a waiver of the license
holder's right to a hearing before the Board of Health.
[Added 6-17-2014, effective 7-17-2014[2]]
[2]
Editor's Note: This ordinance also redesignated former Subsection
F as Subsection G.
G.
Hearing. The hearings provided for in this section shall be conducted
by the Board of Health at a time and place designated by it. Based
upon the record of such hearing, the Board of Health shall make a
finding and shall sustain, modify, or rescind any official notice
or order considered in the hearing. A written report of the hearing
decision shall be furnished to the license holder by the Board of
Health.
(NOTE: This section has been removed. State statute now supersedes
this section - RSA 466, Dogs and Cats; Section 466:44.)
[1]
Editor's Note: Former § 55-4, Variance requirements
for dog-friendly outdoor dining, was repealed 9-15-2023.
At least once every six months, the Derry Health Authority shall
inspect each food service establishment located in the Town of Derry
in accordance with He-P2305.
Nothing herein shall prevent the Health Authority from seeking
injunctive relief in the Superior Court or deprive it of any other
remedy available under the law.
Should any provision of this chapter be declared by a court
of competent jurisdiction to be unconstitutional or invalid, such
decision shall not affect the validity of this chapter as a whole,
or any part thereof, other than the part so declared to be invalid.
