The Texas Food Establishment Rules adopted by the department of state health services as 25 Tex. Admin. Code sections 229.161 through 229.171 and 229.173 through 229.175, as amended herein, are hereby adopted as the city rules for food service sanitation, a copy of which is attached as exhibit A to the adoptive ordinance that amends this article [Ordinance 2008-12-51], and which shall be maintained together with the adoptive ordinance in a separate file in the office of the city secretary. All references contained herein to sections within this article are in the Texas Administrative Code. The city amends the Texas Food Establishment Rules as follows.
(Ordinance 2008-12-51 adopted 12/8/08)
(a) 
Definitions.
Section 229.162 is amended to include the following:
Catering operation
means a food establishment that pursuant to a contract or agreement prepares food in an approved facility and transports food in an approved manner to another location for final cooking or service. A catering operation is classified as a food establishment.
Concession stand
means a food establishment operated on a seasonal basis for the purpose of providing food at sporting and special events.
Food establishment.
Section 229.162(40)(C)(viii) shall be added to read:
Provided that the operations do not expose the public to a substantial and imminent health hazard as determined by the regulatory authority, a food establishment does not include the sale, distribution or service of food at an event, party or other special event that is not open to persons other than the members or invited guests of the sponsor, provided that there is no public advertisement of the event, public solicitation of funds at or for the event, or participation by the general public in the event.
Pushcart
means a non-self-propelled mobile food unit limited to serving only prepackaged, non-potentially hazardous food. A pushcart is classified as a mobile food unit. A pushcart does not include non-self-propelled units owned and operated within a retail food store.
Seasonal food establishment
means a food service establishment that operates at a fixed location for a period greater than 14 consecutive days, but less than 365 days, and is restricted to limited food preparation, unless approved by the regulatory authority.
(b) 
Equipment, utensils and linens.
Section 226.165(f)(24) is amended to read as follows:
Equipment in new or extensively remodeled establishments shall meet National Sanitation Foundation or equivalent approval. Any other equipment is subject to approval by the regulatory authority.
(c) 
Grease trap.
Section 229.166(j)(3) is amended to read as follows:
A grease trap or grease interceptor is required unless approved by the regulatory authority. If used, a grease trap or grease interceptor shall be located outside the facility. It shall be sized according to the plumbing code as currently adopted by the city.
(d) 
Floors, walls, and ceilings.
Section 229.167(c) is amended as follows:
(1) 
Wall and ceiling coverings and coatings.
Section 229.167(c)(6)(a) is amended to read:
The walls and ceilings of walk-in refrigerating units, food preparation areas, dry storage areas, food storage areas, equipment washing and utensil washing areas, toilet rooms and vestibules shall be light colored, smooth, nonabsorbent, and easily cleanable.
(2) 
Wall and ceiling coverings and coatings.
Section 229.167(c)(6)(b) is amended to read:
Concession stands may use concrete, porous blocks, or bricks for indoor wall construction if finished and sealed to provide a smooth, easily cleanable, non-absorbent surface.
(3) 
Floor construction.
Section 229.167(c)(9) shall be added to read:
Floors and floor coverings of all food preparation, food service, food storage, and utensil washing areas, and the floors of all walk-in refrigerating units, dressing rooms, locker rooms, toilet rooms and vestibules, shall be constructed of smooth, durable material such as terrazzo, ceramic tile, quarry tile or the equivalent as approved by the regulatory authority and shall be maintained in good repair. Sealed concrete is not acceptable as a floor surface for areas mentioned above.
(e) 
Competency and access.
Section 229.171(i)(1) is amended to read as follows:
An individual conducting inspection of retail food establishments shall be a registered professional sanitarian or a sanitarian-in-training in Texas.
(Ordinance 2008-12-51 adopted 12/8/08)
(a) 
General standards.
The regulatory authority may impose additional requirements to protect against health hazards related to the conduct of the seasonal food establishments, may prohibit the sale of some or all potentially hazardous food, and, when no health hazards will result, may waive or modify requirements of this article. Seasonal food establishments shall comply with the requirements of this article.
(b) 
Concession stands.
Concession facilities are seasonal food service establishments generally associated with athletic and recreational facilities. The degree of regulation of a concession facility shall depend upon the type and volume of foods conveyed, and the status of the facility.
(c) 
Farmers’ markets.
The following does not apply to non-potentially-hazardous uncut produce.
(1) 
All foods must be commercially produced prepackaged items from a licensed facility or commissary. Product sampling is prohibited. This prohibition does not apply to food that has been prepared or packaged under conditions meeting the requirements of this article and served within facilities meeting the requirements of this article.
(2) 
A manufacturing permit from the department of state health services and copies of product labels shall be provided to the regulatory authority.
(3) 
All refrigerated foods must be maintained below 41 degrees using mechanical refrigeration.
(Ordinance 2008-12-51 adopted 12/8/08)
Section 229.170 is amended as follows:
(1) 
Food temperatures.
Section 229.170(b) is amended to read:
All food temperature requirements shall be met as contained in 229.164(k)–(o) of this title (relating to food). Ice shall not be used as a coolant for potentially hazardous foods at a temporary food establishment operating for more than four hours.
(2) 
Limited food preparation.
Section 229.170(l) shall be added to read:
[Only] Those potentially hazardous foods requiring limited preparation, such as pre-formed hamburgers and hot dogs, shall be prepared and served unless otherwise approved by the regulatory authority. No slicing, dicing, or cutting of food products on-site. This prohibition does not apply to potentially hazardous food that has been prepared or packaged under conditions meeting the requirements of this article, is obtained in individual servings, in facilities that meet the requirements of this article, and is served directly in the unopened container in which it was packaged. The preparation or service of meat sandwiches, smoked or barbecued meats and eggs is prohibited unless the facility is a fully equipped enclosed building with sinks, refrigeration, and hot and cold running water. The sale or conveyance of fish, raw poultry, or shellfish products (except certain prepackaged frozen products) is prohibited.
(Ordinance 2008-12-51 adopted 12/8/08)
Section 229.169 is amended as follows:
(1) 
Permits.
Section 226.169(a)(10) shall be added to read:
A schedule of all stops in the city, including locations and exact times, shall be submitted at the time of the application. Any changes in the schedule shall be reported to the regulatory authority within three days of such change. Failure to maintain a current schedule of these stops may result in suspension of the permit to operate.
(Ordinance 2008-12-51 adopted 12/8/08)
(a) 
General provisions.
(1) 
Regulatory authority.
Any reference to “regulatory authority” in the rules shall mean the city environmental health department.
(2) 
Separate permit required for each operation.
In cases where a person or firm conducts, in a single building or at the same address, more than one food operation, whether such operations constitute a food establishment or temporary food establishment, then a separate permit shall be required for each separate operation.
(3) 
Storage of potentially hazardous foods.
Mechanical refrigeration or effectively insulated facilities are required for the storage of potentially hazardous foods. Using ice as the sole coolant for potentially hazardous foods is not acceptable; however, ice can be used as a coolant for potentially hazardous foods at a temporary food establishment operating for less than four hours.
(b) 
Permit required.
It shall be unlawful for any person to operate a food establishment within the limits of the city without having been issued a valid food permit. Only a person who complies with the requirements in this article shall be entitled to receive or retain a permit, and notwithstanding the fact that all inspections necessary for obtaining a food permit have been completed, such permit shall not be issued until after the building in which the establishment is to be located has been issued a certificate of occupancy by the city. Permits are not transferable from one person to another person or place. A valid permit shall be posted in or on a conspicuous place of every food establishment regulated by this article. Permits shall remain in effect for 12 months from the date of issuance unless sooner revoked for cause. Mobile food establishment permits are valid for six months. If the permit is granted to a temporary food establishment, the permit shall be in effect for a period of time not exceeding 14 consecutive days in conjunction with a single event or celebration.
(c) 
Issuance of permit.
(1) 
Any person desiring to operate a food establishment shall make written application for a permit on forms provided by the regulatory authority. The application shall include the name and address of each applicant, the location and type of food establishment and the signature of the applicant. An application for a temporary food establishment shall include the inclusive dates of the proposed operation. For temporary and seasonal events, applications and fees shall be submitted at least four working days prior to the start date.
(2) 
The application shall be accompanied by a nonrefundable permit fee established by resolution of the city council from time to time. Failure to pay the annual fee shall cause the permit to be automatically revoked.
(3) 
Establishments that provide only non-potentially hazardous foods, sold or served in original packaging and/or in single use containers, may be exempt from permitting requirements upon approval of the regulatory authority. Full compliance with this article, including permit requirements and associated fees and inspections, may be required of establishments if judged to be capable of causing food-borne illness or increased public health risk.
(d) 
Submission and review of plans.
(1) 
Whenever a food establishment is constructed or extensively remodeled and whenever an existing structure is converted to use as a food establishment, properly prepared plans and specifications for such construction, remodeling, or conversion shall be submitted to the regulatory authority for review and approval before construction, remodeling or conversion is commenced. The plans and specifications shall include a proposed menu, proposed layout, equipment arrangement, mechanical plans and construction materials of work areas, and the type and model of proposed fixed equipment and facilities. No food establishment shall be constructed, extensively remodeled, or converted except in accordance with said approved plans and specifications.
(2) 
Deviation from the approved plans and specifications shall result in a food establishment permit denial, suspension, or revocation.
(e) 
Inspections.
(1) 
The regulatory authority shall inspect the food establishment prior to the issuance of the food establishment permit to determine compliance with any approved plans and specifications and compliance with other requirements of this article, and shall determine that a certificate of occupancy has been issued for the building in which the establishment is to be located.
(2) 
The regulatory authority shall conduct periodic routine inspections to determine if a food establishment is in compliance with the rules. If, during a routine inspection, immediate correction of a critical item is not achieved, the regulatory authority shall verify correction of the violation within ten calendar days. If a critical item is not corrected during the initial inspection, a reinspection fee, established by resolution of the city council from time to time, shall be assessed at the follow-up inspection.
(3) 
When the total cumulative demerit value of an establishment exceeds 30 demerits, the establishment shall immediately cease operations. The establishment shall remain closed until corrective action on all identified critical violations is complete. Corrective action on all other violations must be initiated within 48 hours. The establishment shall remain closed until reopened by the regulatory authority. In the case of temporary food establishments, all violations shall be corrected immediately.
(4) 
Denial of access to the regulatory authority shall be cause for suspension or revocation of the food service permit.
(Ordinance 2008-12-51 adopted 12/8/08)
Section 229.163 is amended as follows:
(1) 
Responsibility; assignment.
Section 229.163(a):
The permit holder shall be the person in charge or shall designate a person in charge and shall ensure that a person in charge is present at the food establishment during all hours of operation. The person in charge shall have successfully completed a certified food manager’s program accredited by the department.
a. 
Food establishments that serve, sell or distribute only prepackaged foods and non-potentially hazardous beverages as well as seasonal establishments and temporary establishments are exempt from the certified food manager’s program requirements.
b. 
A certified food manager is required for each separately permitted section of each food establishment. The regulatory authority may require additional certified operators in sufficient number to insure that all areas of food preparation and food service, during times of operation, are under the direction of certified supervisory personnel.
c. 
Compliance may be required of establishments having exemption if they have repeated or serious critical food code violations, or if the establishment is judged by the regulatory authority to be capable of causing food-borne illness.
d. 
If a food establishment cannot meet the requirements of this section because of the termination or transfer of certified personnel, the food establishment shall employ another certified food manager within 30 days after such termination or transfer.
(2) 
Knowledge; demonstration.
Section 229.163(b)(2) is amended to read:
... being a certified food protection manager who has shown proficiency of required information through passing a department approved examination;
(Ordinance 2008-12-51 adopted 12/8/08)
(a) 
The regulatory authority may, without warning, notice, or hearing, suspend any permit to operate a food establishment if the holder of such permit does not comply with the requirements of this article, or the operation of its establishment does not comply with the requirements set forth herein, or if the operation of the food establishment otherwise constitutes a substantial hazard to public health. Suspension is effective upon service of the notice. When a permit is suspended, food service operations shall immediately cease. Whenever a permit is suspended the holder thereof shall be afforded an opportunity for a hearing within 20 days after receipt of a written request for hearing.
(b) 
Whenever a permit is suspended, the holder thereof or the person in charge shall be notified in writing that an opportunity for a hearing shall be provided if a written request for hearing is filed with the regulatory authority within ten days after receipt of notice. If no written request for hearing is filed within ten days, the suspension is sustained. The regulatory authority may terminate the suspension at any time if reasons for suspension no longer exist.
(Ordinance 2008-12-51 adopted 12/8/08)
(a) 
The regulatory authority may, after providing opportunity for hearing, revoke a permit for serious or repeated violations of any of the requirements of this article or for interference with the regulatory authority in the performance of its duties.
(b) 
Prior to revocation, the regulatory authority shall notify, in writing, the holder of the permit, or the person in charge, of the specific reason(s) for which the permit is to be revoked and that the permit shall be revoked at the end of the ten days after service of such notice unless a written request for hearing is filed within the ten-day period. If no request for hearing is filed within the ten-day period, the revocation of the permit becomes final. A permit may be suspended pending its permanent revocation or a hearing relative thereto.
(c) 
The holder of the revoked permit may make written application for a new permit.
(Ordinance 2008-12-51 adopted 12/8/08)
(a) 
The regulatory authority shall tag, label, or otherwise identify any food subject to a hold order. No food subject to a hold order shall be used, served, or moved from the establishment. The regulatory authority’s hold order shall permit storage of the food under the conditions specified in the hold order, unless storage is not possible without risk to the public health, in which case immediate destruction shall be ordered and accomplished.
(b) 
A hold order shall state that a request for hearing may be filed within ten days after issuance thereof and that if no hearing is requested the food shall be destroyed. On the basis of evidence produced at that hearing, the hold order may be vacated, or the owner or person in charge of the food may be directed by written order to denature or destroy such food or to bring it into compliance with the provisions of this article.
(Ordinance 2008-12-51 adopted 12/8/08)
The hearings provided for in this article shall be conducted by the city manager at a time and place designated by him. Testimony given at a hearing shall be recorded verbatim. The city manager shall make a final finding based upon the complete record, and shall sustain, modify or rescind any notice or order considered in the hearing. The regulatory authority shall furnish a written report of the hearing decision to the holder of the permit.
(Ordinance 2008-12-51 adopted 12/8/08)
A notice provided for in this article 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.
(Ordinance 2008-12-51 adopted 12/8/08)