(a)
The
city adopts by reference the provisions of the rules adopted by the
executive commissioner of the health and human services commission,
as amended, found in 25 Texas Administrative Code, chapter 228, regarding
the regulation of food establishments in this jurisdiction.
(b)
The
city will follow the current food establishment rules set by the department
of health and human services [department of state health services].
(Ordinance O-06192022-01, sec. 1,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 1, adopted 2/6/23)
In addition to the definitions adopted in the rules listed in section 7.02.001 above, the following definitions shall apply to this article:
means organic polar compounds derived from animal and/or
plant sources that contain multiple carbon chain triglyceride molecules.
These substances are detectable and measurable using analytical test
procedures established in 40 C.F.R. 136, as may be amended. All are
sometimes referred to herein as “grease” or “greases.”
means a food service establishment, a retail food store,
a temporary food establishment, a mobile food unit, and/or a roadside
food vendor.
means the owner or operator of a food establishment as defined
in this article.
means a device, also known as an interceptor, designed to
use differences in specific gravities to separate and retain light
density liquids, waterborne fats, oils, and greases prior to the wastewater
entering the sanitary sewer collection system. These devices also
serve to collect settleable solids, generated by and from food preparation
activities, prior to the water exiting the trap and entering the sanitary
sewer collection system.
means the department of state health services.
means the state rules found in 25 Texas Administrative Code,
chapter 228. These rules are also known as the Texas Food Establishment
Rules.
(Ordinance O-06192022-01, sec. 2,
adopted 9/6/22; Ordinance
01062020-03 Amended, sec. 1, adopted 9/6/22; Ordinance O-06192022-01 Amended,
sec. 2, adopted 2/6/23)
(a)
Required.
It shall be unlawful for any person to operate
a food establishment in the city unless they possess a current and
valid health permit issued by the regulatory authority.
(b)
Posting.
A valid permit shall be posted in public view
in a conspicuous place at every food establishment regulated by this
division.
(c)
Nontransferable (change of ownership).
Permits issued
under the provisions of this division are not transferable. Upon change
of ownership of a business the new business owner will be required
to meet current standards as defined in city ordinances, state laws
and state rules before a permit will be issued.
(d)
Application for permit; renewal.
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, address, and phone number 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.
(e)
Temporary food location permit.
Applications and fees
must be submitted no later than three complete working days (72 hours)
prior to the event. Temporary permits are issued in conjunction with
a special event or a celebration or a recognized holiday. Each individual
booth owner/operator must submit their own application.
(f)
Inspection for permits.
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.
(g)
Suspension of permit.
The regulatory authority 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 subsection (g) [(h)] of this section. When a permit is suspended, the holder of the permit shall immediately cease all food operations. Whenever a permit is suspended, the holder of the permit shall be afforded an opportunity for a hearing within ten days of receipt of a request for a hearing.
(h)
Notification of right to hearing.
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 regulatory
authority by the holder of the permit within ten days. If no written
request for hearing is filed within ten days, the suspension is sustained.
The regulatory authority may end the suspension at any time if reasons
for suspension no longer exist.
(i)
Revocation of permit.
The regulatory authority, after
providing notice and an opportunity for a hearing, may revoke a permit
for serious or repeated violations of any of the requirements of the
state rules or for interference with regulatory authority in the performance
of its duties. Prior to revocation, the regulatory authority 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 days following service
of such notice. Unless a written request for a hearing is filed with
the regulatory authority by the holder of the permit within such ten-day
period, the revocation of the permit becomes final.
(j)
Service of notice.
A notice provided for in the state
rules is properly served when it is delivered to the holder of the
permit or certificate, 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 or certificate. A copy
of the notice shall be filed in the records of the regulatory authority.
(k)
Hearings.
The hearings provided for in the state rules
shall be conducted by the regulatory authority at a time and place
designated by it. Based upon the recorded evidence of such hearings,
the regulatory authority shall make a final finding, and shall 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 regulatory authority.
(l)
Right of appeal.
Any permit holder who wishes to dispute
the decision of a hearing may appeal the decision to the director
of the regulatory authority.
(m)
Application after revocation.
Whenever a revocation
of a permit has become final, the holder of the revoked permit may
make written application for a new permit to the regulatory authority.
(n)
Permit fees.
A fee, as set out in the fee schedule in
appendix A of this code, adopted and defined in the annual budget
of the city, shall be required to be paid for the pre-operational
inspection and, thereafter, on an annual basis. Fees shall be paid
to City of Elkhart, 110 W. Parker Street, Elkhart, TX 75839.
(o)
Exemption of nonprofit organizations.
A food establishment
operated solely by a nonprofit organization is exempt from the permitting
requirements of this division but is not exempt from compliance with
state rules. The regulatory authority may require any information
necessary to determine whether an organization is considered a nonprofit
for purposes of this exemption.
(p)
Compliance with grease trap ordinance.
The food establishment
must follow the rules and requirements found in division 2 of this
article regarding grease traps for non-domestic users, and quarterly
inspections will be performed following the approval of the food establishment’s
permit.
(q)
Additional requirement for mobile food locations.
A
person applying for a permit to operate a mobile food location within
the city limits shall also submit a copy of the menu showing all food
items to be sold to the city secretary and the code enforcement department.
(Ordinance O-06192022-01, sec. 3,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 3, adopted 2/6/23; Ordinance adopting 2023 Code)
(a)
Submission of plans.
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 before work
is begun. Extensive remodeling means that 20% or greater of the area
of the food establishment is to be remodeled. The plans and specifications
shall indicate the proposed layout, arrangement, mechanical plans,
and construction materials of work areas, and the type and model of
proposed fixed equipment and facilities. The plans and specifications
will be approved by the regulatory authority if they meet the requirements
of the rules adopted by this division. No food establishment shall
be constructed, extensively remodeled, or converted except in accordance
with plans and specifications approved by the regulatory authority.
(b)
Failure to follow plans.
Failure to follow the approved
plans and specifications will result in a permit denial, suspension,
or revocation.
(c)
Pre-operational inspection.
The regulatory authority
shall inspect any food establishment prior to its beginning operation
to determine compliance with approved plans and specifications and
with the requirements of the state rules.
(d)
Fees.
The fees for the review of plans shall be set
out, adopted and defined in the annual budget of the city.
(Ordinance O-06192022-01, sec. 4,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 4, adopted 2/6/23)
(a)
Before
a permit is issued, the regulatory authority shall inspect and approve
the food establishment. An inspection of a food establishment shall
be performed at least once annually and shall be prioritized based
upon assessment of the food establishment’s compliance and potential
of causing foodborne illness according to 25 TAC 229.172.
(b)
The
regulatory authority shall classify food establishments as special
priority, high priority, medium priority, or low priority, according
to the type of operation; particular foods that are prepared; number
of people served; susceptibility of the population served; history
of violations and any other risk factor deemed relevant to the operation.
(c)
Refusal of an owner, manager or employee to allow the authorized representative of the regulatory authority, upon presentation of credentials, to inspect any permitted business or operation therein during normal business hours will result in an immediate suspension of the permit, requiring all permitted activities to abate until after such time as a hearing may be held per section 7.02.003(k).
(Ordinance O-06192022-01, sec. 5,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 5, adopted 2/6/23)
(a)
Requirements.
(1)
Each food establishment shall have at least one person employed in
a managerial capacity possessing a current food manager certificate
approved by the regulatory authority. The manager is responsible for
providing this information prior to obtaining a permit.
(2)
Each food establishment with six or more employees must have at least
one employee with a current food manager certificate on-site during
all operations.
(3)
Every employee of a food establishment who does not hold a current
food manager certificate must maintain a valid food handler certification
registered with the regulatory authority.
(4)
Food manager and food handler certificates must be maintained in
the food establishment and presented upon request by the regulatory
authority.
(b)
Expiration.
(1)
Food manager certificates are valid for a period of up to five years
as determined by the regulatory authority, unless revoked by the regulatory
authority prior to the expiration date.
(2)
Food handler certification shall be valid for a period of up to two
years, as determined by the regulatory authority.
(c)
Adoption of state regulations for food handling.
All
employees and managers of the food establishments must follow the
regulatory authority’s guidelines on safe food handling practices.
The city adopts by reference the provisions of the rules adopted by
the Texas Health and Safety Code.
(Ordinance O-06192022-01, sec. 6,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 6, adopted 2/6/23)
(a)
Generally.
All mobile food units must comply with the
following health and design regulations and provide any necessary
documentation prior to obtaining a permit to operate.
(b)
Mobile food unit
Definitions.
In addition to the definitions adopted
above, the following definition shall apply to this section:
means a vehicle-mounted, self or otherwise propelled, self-contained
food service operation, designed to be readily movable (including
but not limited to catering trucks, trailers, pushcarts, and roadside
vendors) and used to store, prepare, display, serve or sell food.
Mobile units must completely retain their mobility at all times. A
mobile food unit does not mean a stand or a booth. No permanent mobile
food unit will be permitted.
(c)
Servicing area authorization required.
A signed letter
of authorization may be required by the regulatory authority to verify
service area use if the servicing area is not owned by the mobile
unit operator.
(d)
Cooling, heating and holding capacities.
Equipment for
cooling and heating food, and holding cold and hot food, shall be
sufficient in number and capacity to provide food temperatures as
specified.
(e)
Sink requirements.
(1)
Manual ware-washing.
A sink with at least three compartments
shall be provided for manually washing, rinsing, and sanitizing equipment
and utensils as specified. Sink compartments shall be large enough
to accommodate immersion of the largest equipment and utensils.
(2)
Hand-washing.
At least one hand-washing sink shall be
available for convenient use by employees and properly provisioned
in accordance with state rules.
(f)
Mobile water system.
Mobile food unit water systems
shall meet the requirements of section 228.149(f) [chapter 228, subchapter
E] of the state rules. A mobile food unit’s water tank inlet
shall be 19.1 mm (3/4 inch) in inner diameter or less, and provided
with a hose connection of a size or type that will prevent its use
for any other service. The fill hose and water holding tank shall
be labeled as “potable water.”
(g)
Sewage and other liquid waste.
(1)
If liquid waste results from the operation of a mobile food unit,
the waste shall be stored in a permanently installed retention tank.
Capacity and drainage: A leak-proof sewage holding tank in a mobile
food unit shall be sized at least 15% larger in capacity than the
water supply tank, and sloped to a drain that is 25 millimeters (1
inch) in inner diameter or greater, equipped with a shut-off valve.
(2)
All connections on the vehicle for servicing the mobile food unit
waste disposal facilities shall be of a different size or type than
those used for supplying potable water to the mobile food unit.
(3)
Discharge: Liquid waste shall not be discharged from the retention
tank while the mobile food unit is in motion.
(4)
A tank for liquid waste retention shall be thoroughly flushed and
drained in a sanitary manner.
(5)
Sewage and other liquid wastes shall be removed from a mobile food
unit at an approved waste servicing area or by a sewage transport
vehicle in such a way that a public health hazard or nuisance is not
created.
(6)
The liquid waste holding tank shall be labeled as “wastewater.”
A roadside vendor that sells only pre-packaged food is exempt from
the state rules pertaining to water and wastewater.
(7)
A mobile food unit that prepares food requiring no water for operations
and no hand contact with food is exempt from the state rules pertaining
to water and wastewater if the required cleaning and sanitization
equipment exist at its central preparation facility. Chemically treated
towelettes for hand-washing may be used as specified in the state
rules.
(h)
Convenience and accessibility of toilet rooms.
Toilet
rooms shall be conveniently located and accessible to employees during
all hours of operation.
(i)
Central preparation facility regulations.
(1)
Mobile food units shall operate from a central preparation facility
or other fixed food establishment and shall report to such location
daily for supplies and for cleaning and servicing operations.
(2)
The central preparation facility or other fixed food service establishment,
used as a base of operation for mobile food units, shall be constructed
and operated in compliance with the requirements of the state rules.
(3)
A mobile food unit servicing area shall include at least overhead
protection for any supplying, cleaning, or servicing operation. Those
areas used only for the loading of water and/or the discharge of sewage
and other liquid waste, through the use of a closed system of hoses,
need not be provided with overhead protection. Within the servicing
area, the location provided for the flushing and drainage of liquid
wastes shall be separate from the location provided for potable water
servicing and for the loading and unloading of food and related supplies.
(4)
A servicing area will not be required where only packaged food is
placed on the mobile food unit or where mobile food units do not contain
waste retention tanks.
(5)
The surface of the servicing area shall be constructed of a smooth
nonabsorbent material, such as concrete or machine-laid asphalt, and
shall be maintained in good repair, kept clean, and be graded to drain.
(6)
Potable water servicing equipment shall be installed in the servicing
area according to the plumbing code and shall be stored and handled
in a way that protects the water and equipment from contamination.
(7)
Construction exemption. The construction of the walls and ceilings
of the servicing area is exempted from the provisions of the state
rules.
(Ordinance O-06192022-01, sec. 7,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 7, adopted 2/6/23)
(a)
Food and food preparation guidelines.
(1)
Food is not to be prepared or stored in a home or in an unauthorized
location.
(2)
Time/temperature control food safety must be maintained at an internal
temperature of 41°F or below when cold or 135°F or above when
hot. Food items are to be prepared as close to the time of the event
as possible. All food items must be from an approved source. Receipts
will be checked.
(3)
Food with limited preparation (i.e., hot dogs, pre-packaged frozen
hamburger patties, nachos, bratwurst, frying of tortillas/gordita
shells/churros) and pre-washed ready-to-eat vegetables may be prepared
in the booth.
(4)
Ice used for consumption must be obtained in chipped, crushed, or
cubed form and stored in plastic bags filled and sealed at the point
of manufacture. The ice shall be stored in these bags until properly
dispensed.
(b)
Equipment.
(1)
Location and use.
Equipment must be located and used
in a manner that prevents food contamination.
(2)
Acceptable cooking equipment.
Propane gas or electric
units only, i.e., grills with lids, stoves and hot burners.
(3)
Acceptable hot holding equipment.
Propane gas or electric
units only, i.e., grills with lids, electric chafing dishes, burners,
hot plates, and crockpots. Steno chafing dishes are allowed inside
buildings.
(Ordinance O-06192022-01, sec. 8,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 8, adopted 2/6/23)
(a)
It
is an offense for a person, company, or corporation to violate any
provision of this division.
(b)
It
is an offense for the holder of a permit issued under this division
to allow a food establishment to be operated in violation of any provision
of this division.
(c)
Any person, firm or corporation who violates, disobeys, omits, neglects, or refuses to comply with or who resists the enforcement of any of the provisions of this division shall be fined in accordance with the general penalty provided in section 1.01.009 of this code for each offense.
(d)
Any
person, firm or corporation who violates, disobeys, omits, neglects
or refuses to comply with or who resists the enforcement of any of
the provisions of this division may also be subjected to such civil
penalties and such civil remedies as authorized by law.
(e)
Each
day that a violation is committed, continued, or permitted shall constitute
a separate offense.
(Ordinance O-06192022-01, sec. 9,
adopted 9/6/22; Ordinance
O-06192022-01 Amended, sec. 9, adopted 2/6/23; Ordinance adopting 2023 Code)
(a)
Grease
traps at food establishments existing at the time this section is
passed must be operated and maintained in accordance with the manufacturer’s
recommendations and in accordance with the requirements described
herein. If an existing food establishment does not operate a grease
trap, it must install an appropriate grease trap as described herein
within sixty (60) days following the passage of this section.
(b)
Newly
proposed food establishments, or existing facilities which will be
expanded or renovated to include a food service facility where such
a facility did not previously exist, shall be required to design,
install, operate and maintain a grease trap in accordance with the
standards of this section. Grease traps shall be installed and inspected
prior to issuance of a certificate of occupancy.
(Ordinance 01062020-03 Amended,
sec. 2, adopted 9/6/22)
(a)
Facilities
generating fats, oils, and/or greases as a result of nonresidential
food manufacturing, processing, preparation, or service on the premises
shall install, use, and maintain appropriate grease traps as required
by the following subsections. All costs for such installation, maintenance,
operation, and, if necessary, the modification of such grease traps
shall be the responsibility of the food establishment operator. No
food establishment operator shall intentionally or unintentionally
allow the direct or indirect discharge of any grease, petroleum oil,
nonbiodegradable cutting oil, or mineral oil into the city sewer system
in such amounts as to cause interference with the city water or sewer
system or to cause pollutants to pass into the environment.
(b)
Grease
traps shall be installed, maintained, and operated in accordance with
city, state, and federal standards and shall have a minimum capacity
of 750 gallons unless otherwise determined by the director of public
works or the director’s designee. If necessary due to expansion
of the use of the property or revision of applicable regulations or
and [sic] discharge standards, the owner of a food service establishment
shall modify grease traps to remain in compliance with this section
and any other regulations and discharge standards.
(c)
The
owner of the food service establishment shall be responsible for the
installation, operation, maintenance and, if necessary, the modification
of the grease trap to comply with all applicable laws and discharge
standards. Required maintenance shall be performed in accordance with
all applicable local, state, and federal regulations, and shall include,
at minimum, the following:
(1)
Regular inspection and discharge sampling of the grease trap at least
once every 90 days to ensure that sediment and floating materials
do not accumulate to impair the efficiency of the grease trap. Discharge
samples shall be tested following inspection. BOD (biochemical oxygen
demand) and TSS (total suspended solids) limits must be below 300
parts per million. Oil and grease (O&G) limits must be below 200
mg/L. Owners shall report results of inspections to the director of
public works.
(2)
Regularly scheduled pumping by a licensed waste hauler at least once every 180 days, or following the 90-day inspection when (i) such inspection reveals that twenty-five (25) percent or more of the wetted height of the grease trap, as measured from the bottom of the device to the invert of the outlet pipe, contains floating materials, sediment, oils or greases; or (ii) the discharge sample exceeds the BOD, TSS, or O&G limits described in subsection (c)(1).
(3)
Additional pumping by a licensed waste hauler at any other times
necessary to prevent impairment of the city sewer line and maintain
the efficiency of the grease trap.
(4)
Within 15 days of pumping, as required by this subsection (c), owners shall provide the director of public works a written manifest signed by the licensed waste hauler containing, at minimum, information including the type and volume of grease disposed, the date of disposal, the information and registration number of the licensed waste hauler, and the disposal site location and registration number. Food establishments shall retain copies of manifests for five years and shall make such copies readily available for review by the director of public works.
(Ordinance 01062020-03 Amended,
sec. 3, adopted 9/6/22)
Backflow prevention devices installed in accordance with title
25, chapter 228 of the Texas Administrative Code shall be inspected
annually.
(Ordinance 01062020-03 Amended,
sec. 4, adopted 9/6/22)
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this division shall be fined in accordance with the general penalty provided in section 1.01.009 of this code for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. Additionally, such offense may result in the suspension of water service until such noncompliance is resolved, and the director of public works may suspend the certificate of occupancy for the property until the violation is corrected. Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this division may also be subjected to such civil penalties and such civil remedies as authorized by law.
(Ordinance 01062020-03 Amended,
sec. 7, adopted 9/6/22; Ordinance
adopting 2023 Code)
