Enforcement Strategies

Transcription

1 9 APPENDIXES APPENDIX 1 REGULATED VS. NON-REGULATED ACTIVITIES & FOOD ITEMS The following materials support the table presented in Section 3-Regulated vs. Non-Regulated Activities and Food Items. Appendix 1.1 Guidance and Interpretations The following links are for materials that provide guidance and interpretations for Registered Environmental Health Specialists relating to food events, establishments, jurisdiction and permitting. Memorandum: Packaged Food Memorandum: Manager s Reception, Continental Breakfast, and Similar Activities Memorandum: Continental Breakfast Wineries memo with flow chart Memorandum: Cooking Schools/Classes Memorandum: Meal Assembly Establishments Memorandum: Food Brought into Schools from Non-Commercial Sources Flow Chart for Mobile Food Units Memorandum: Further Clarification on SB12-Exemption Statute (G.S. 130A-250) Informal Appeal Flow Chart 23

2 Appendix 1.2 Examples of Permitting Actions The following table illustrates appropriate permitting actions for the situations given. These examples are not meant to be used as the definitive answer for a specific situation or intended as a comprehensive list. Each situation has many factors that must be considered before appropriate permitting action is taken. Local environmental health programs should consult with their regional specialist to ensure the proper actions are taken. Intent to Suspend Vs. Immediate Suspension Water Supply Confirmed Total Coliform Letter from Division of Epidemiology stating water contains elements above the state or federal standards (no imminent hazard) Owner fails to comply with conditions for the operation of a well (e.g. CO, Chlorinator, etc) Hot water available is not of sufficient volume to sustain operation Sewage Failure of an on-site wastewater system outside of the establishment; Notice of Violation issued by the On-Site Water Protection section of the local environmental health program Food service establishment exceeds the number of seats specified within the onsite wastewater system permit Intent to revoke may be warranted for failure of an on-site wastewater system outside of the establishment with no area available for repair Holding Violations Chronic violations of time/temperature requirements, including hot/cold holding, cooling, reheating, and Time in Lieu of Temperature (TILT) parameters Malfunctioning equipment that prevents time/temperature requirements from being met with emergency means by which to maintain time/temperature requirements until equipment is repaired Water Supply Confirmed fecal Coliform Letter from Division of Epidemiology stating water contains elements that constitute an imminent hazard Lack of potable water under pressure in an establishment No hot water and no steps being taken to remediate the situation Sewage Failure of an on-site wastewater system inside of the establishment resulting in the possibility of direct contact with raw sewage in a food service area; Holding Violations Malfunctioning equipment that prevents time/temperature requirements from being met with no emergency means by which to maintain time/temperature requirements until equipment is repaired 24

3 Miscellaneous Chronic critical violations Temporary Food Establishments: Due to the transient/temporary nature of temporary food establishments, chronic critical violations observed after initial correction given by the EHS Communicable Disease Issues Food service establishment is linked to an ongoing foodborne illness outbreak of norovirus; FSE excludes all sick employees and closes to disinfect Intent to Revoke Vs. Immediate Revocation There are violations of essential functions (e.g. water supply, wastewater) that will lead to revocation. Successful repair is not certain but no imminent hazard exists. The grade of an establishment falls below a C ( 130A-23(d)) The disaster or fire has destroyed the establishment The on-site wastewater system is malfunctioning and no repair is possible 25

4 APPENDIX 2 LEGAL REMEDIES The following materials support the legal procedures presented in Section 4-Legal Remedies. Appendix 2.1 How to Pursue a Class 1 Misdemeanor The following document details the procedures needed to pursue a Class 1 misdemeanor for violations of public health statutes, state regulations or conditions of a permit ( 130A-25(a), see also 14-3(a) which provides that any unclassified misdemeanor is considered a Class 1 misdemeanor). 1. Decide whether to seek a criminal charge: Discuss the facts with your county attorney and a prosecutor before seeking a criminal charge. 2. Typical steps for pursuing a Class 1 misdemeanor: a. Appear before a judicial official (usually a magistrate) in the county where the violation occurred. b. Bring a copy of the statute, rule, or ordinance allegedly violated. c. Testify under oath before the judicial official. i. Reliable hearsay evidence is admissible when a judicial official determines whether there is probable cause to charge an offense. Therefore, all witnesses need not testify when a judicial official decides whether to issue a criminal charge. ii. iii. Other witnesses also may testify under oath. Make sure the judicial official lists all witnesses on the criminal pleading to facilitate the issuance of subpoenas. 3. Specify a type of criminal pleading, which is a document that charges a person with a criminal offense or infraction. a. Arrest warrant. i. May charge a felony or misdemeanor and requires the defendant s arrest. ii. Is issued by a judicial official, usually a magistrate. b. Criminal summons. i. May charge a felony, misdemeanor, or infraction and is served on the defendant, but the defendant is not arrested. Instead, the defendant is ordered to appear in court on a specific date. ii. Is issued by a judicial official, usually a magistrate. c. Citation. i. May charge a misdemeanor or an infraction. ii. May be issued only by a law enforcement officer or other authorized person. The citation informs the defendant to appear in court on a specific date. The defendant is not arrested. d. Magistrate s order. i. May charge a felony or a misdemeanor. ii. Is issued by a judicial official, usually a magistrate, and only when a law enforcement officer has arrested a defendant without a warrant. e. Statement of charges. 26

5 i. May charge misdemeanor or infraction. ii. May be issued by the prosecutor, before arraignment in district court, to amend the original charge, to substitute another charge for the original charge, or to add new charges with the original charge. f. Indictment. i. Prepared by a prosecutor and issued by a grand jury. An indictment (or information) is required for trial in superior court for a felony charge. 4. Select proper language in charging offense: Special language for charging violations of city or county ordinance ( 160A-77 through -79; 153A-50). 5. Prepare the case before a trial: a. Discuss, if possible, the case with a prosecutor before the date of trial. b. Prepare a one-page statement summarizing what you and other witnesses will testify about in the case. c. Prepare, if useful, a diagram. d. Obtain, if necessary, certified copies of local ordinances and rules. 6. Seek a trial in district court for a misdemeanor charge. a. Procedure: i. Arraignment is when a defendant enters a plea of guilty, no contest (requires consent of the prosecutor and judge), or not guilty. 1. Before trial, remind the prosecutor to check if the offense is correctly charged if you are uncertain. ii. Trial 1. A criminal trial in district court is always tried before a district court judge without a jury. The judge decides whether the defendant is guilty or not guilty of the charge. 2. If necessary, prove local ordinances and rules by certified copies. 3. Judicial notice must be taken of state rules ( 150B-64). However, bring a copy of the rules to court. 27

6 Appendix 2.2 The Embargo Process The following flowchart provided a visual aid detailing the decision-making process for taking embargo action Environmental Health Specialist (EHS ) identifies suspect food or drink. Asks owner/manager (O/M) to voluntarily destroy the food or drink. O/M agrees. EHS documents on both inspection and voluntary disposal forms O/M refuses. EHS contacts health director (HD) NO EMBARGO HD available; EHS consults with HD HD not available; EHS consults with Regional Environmental Health Specialist (REHS) HD does not think that embargo would be appropriate NO EMBARGO HD thinks that embargo may be appropriate or is not sure whether embargo would be appropriate REHS does not think that embargo would be appropriate NO EMBARGO REHS agrees that embargo is or may be appropriate. Offer O/M a final opportunity to voluntarily destroy food or drink O/M agrees and destroys the food. EHS documents. NO EMBARGO O/M refuses. HD or REHS orders embargo. (1) tags the food or drink (2) documents embargo (3) notifies DACS, and (4) initiates court proceedings 28

7 Appendix 2.3 FAQs: Embargo of Food & Drink Products- 130A-21(a) The following questions and answers represent common issues encountered by environmental health specialists regarding embargo of food and drink products The Embargo Process 1) What is the origin of our authority? The ability to exercise embargo authority is granted to the Secretary of the N.C. Department of Environment and Natural Resources (NCDENR) or a local health director by 130A-21. Embargo action can be taken by a local health director only after consultation with NCDENR regional environmental health specialists, or the Division of Environmental Health director or the director s designee. Embargo authority is not delegated to individual environmental health specialists in local health departments. 130A-21 references , the statute that grants embargo authority to the Department of Agriculture and Consumer Services (NCDA&CS), and requires immediate notification to NCDA&CS when embargo action is taken by NCDENR. 2) What types of establishments are subject to our embargo authority? NCDENR s embargo authority applies to an establishment: that is subject to regulation by NCDENR or that is subject to rules adopted by the Commission for Public Health, or that is the subject of a communicable disease investigation under 130A-144. Therefore, NCDENR is authorized to use embargo action within any establishment that is inspected by the Department. The NCDENR s authority does not apply to an establishment regulated by NCDA&CS unless the establishment is only partially regulated by NCDA&CS and then public health s embargo authority extends to the rest of the establishment. 3) What criteria must a food meet to be eligible for embargo action? In order to take embargo action on a food or drink item, the food or drink must be either adulterated or misbranded. These terms are the same terms used by the NCDA&CS for embargo purposes. Adulterated: Adulterated is defined within The following are examples of issues that would deem a food or drink to be adulterated but are not intended to be a comprehensive definition: The food or drink contains a poisonous or deleterious substance which may render it injurious to health; The food or drink consists in whole or in part of a diseased, contaminated, filthy, putrid or decomposed substance, or if it is otherwise unfit for food; The food or drink has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome or injurious to health; The food or drink is the product of a diseased animal or an animal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse. Misbranded: Misbranded refers to food or drink that is labeled improperly, fraudulently, or does not meet the labeling standards within and NCDENR should not take embargo action on foods or drink based upon misbranding. Instead, the Food and Drug Division of the NCDA&CS should be contacted immediately at (919)

8 The full definitions of adulterated and misbranded can be obtained at the Food Defense Program website at: GS% Adulterated%20and%20Misbranded.pdf. 4) What are some typical examples of adulteration? For a food or drink to be adulterated, it must meet the criteria specified within The following are examples of adulteration and are not meant to be a comprehensive list. the food is obviously spoiled, moldy, or exhibits a foul odor associated with decomposition; the food was prepared within areas that could be considered to be insanitary, such as clandestine animal slaughtering operations and food service establishments (such as home kitchens); the food has been contaminated with a cleaning solution, sanitizer, or other potentially harmful chemical; the food was prepared using meat or poultry products that did not originate in a USDA/ NCDA&CS-inspected processing facility. Time/temperature abuse Prior to taking embargo action based upon time and temperature abuse, it must be clearly established that the potentially hazardous food is adulterated. If the potentially hazardous food has been in the temperature danger zone for longer than four hours, then documentation of the time and temperature of the food both at the beginning and end of the time period will help to establish adulteration. Consultation with the Food and Drug Division of NCDA&CS may also be necessary since many factors contribute to adulteration due to time/temperature abuse. In some cases, product samples may need to be analyzed to determine adulteration. Example: During a routine inspection, an EHS finds that a walk-in cooler is malfunctioning. Potentially hazardous food held within the cooler is currently at 55 o F. The manager and staff are unaware of the exact time that the cooler began to malfunction. Should the EHS take embargo action? Answer: It is impossible to determine whether the food is adulterated without more information, such as the length of time that the food has been in the temperature danger zone. The EHS should explain the potential danger and liability involved with serving the food to the owner/manager and recommend voluntary disposal. If the owner/manager refuses, the EHS should note the temperature of the food, the time that it was discovered, and the discussion with the owner/managers on the inspection form. Remain with the food until four hours from the time of discovery have elapsed. Document any food that was served during this time. Once the four hours have elapsed, embargo action can be pursued. The EHS should consult with his/her supervisor, health director, and regional specialist (and/or the food defense coordinator) early in this process. 5) When should the Product Disposition Form be completed? The Product Disposition Form (DENR T6002) should be completed when an embargo action is taken or when an embargo action would be taken but the establishment chooses to voluntarily dispose of the potentially adulterated food. The appropriate sections of the form should be completed, including the signature of the official (embargo) or responsible person (voluntary disposal). 6) What type of documentation should be completed when embargo action is taken? Whenever embargo actions are taken, an effort should be made to collect as much information regarding the event as possible. The minimum amount of documentation should consist of the following: 30

9 Product Disposition form(s): In addition to basic demographic information, DENR T6002 should be used to capture identifying information regarding the food, such as the type of food, quantity (weight, measure, or count), brand name, and lot number. The location of the embargoed food should also be recorded to ensure that the food has not been relocated in the future. It is permissible to draw a sketch of the location if needed. Photographs: Photographs of the food should be taken to record the conditions under which the food was deemed adulterated or misbranded. Examples of conditions that should be captured include the temperature reading on a food thermometer while in the embargoed food, product identifying information (lot number, brand), size relationships, and location of the embargoed products. Notes: A detailed record of the circumstances involved in the embargo event should be kept for future reference. The type of information that should be recorded includes the names of all persons involved and their role in the event, dates of all correspondence and visits, facts of the event, and any future actions that were discussed. 7) What is considered to be a suitable area for the storage of embargoed food? A suitable area for the storage of embargoed food will depend upon the circumstances under which the food was embargoed. If the embargoed food is in a permitted food service establishment, then the food should be segregated from other food items and clearly tagged and labeled as embargoed food. If not, the person may know someone, such as the owner of a food service establishment or the organizer of the event at which the food was embargoed, that would agree to store the food. In any circumstance, embargoed food must be stored in an area that is readily accessible to the public health official with embargo authority upon request. If the food has been disturbed or altered or if the person responsible for the food fails to produce or provide access to it, then they can be held in contempt of court. In no circumstance should the food be stored within a home. Illegal Food and Drink Sales 1) Can embargo authority be used for non-permitted (illegal) food and drink sales? Yes. 130A-21 allows the Secretary of the N.C. Department of Environment and Natural Resources or a local health director to exercise embargo authority concerning food or drink that is subject to regulation by the NCDENR. G.S 130A-248(b) requires all establishments that serve food or drink for pay to receive a permit or transitional permit from the NCDENR prior to operating. Exceptions are listed in 130A-250. Therefore, the sale of food or drink for pay without a permit is subject to regulation by the NCDENR and subject to embargo authority. 2) What should I do if I encounter illegal food or drink sales? The following steps will assist you with addressing the situation: Verify that the food or drink is regulated under 130A-248. Be sure that the food or drink does not fall under the exemptions listed under 130A-250. Obtain identifying information, such as name, address, and telephone numbers. Gather documentation, such as photographs, receipts, and product temperatures. Contact the appropriate division of the N.C. Department of Agriculture and Consumer Services i. Meat and Poultry Inspection Service for meat and poultry products: (919) ii. Food and Drug Division for all other food products: (919)

10 Obtain voluntary disposal of the food and drink products if possible i. Complete the Product Disposition Form (DENR T6002), thoroughly noting quantities and identifying information of the discarded food or drink. ii. Cite (adulterated) or (misbranded); consult with your regional EHS and/or NCDA&CS to determine the appropriate status. iii. Obtain signature of responsible person. iv. Observe food or drink being denatured. If voluntary disposal cannot be obtained, proceed with embargo i. Consult with your regional EHS (or their superiors) before embargo. ii. Cite (adulterated) or (misbranded); consult with your regional EHS and/or NCDA&CS to determine the appropriate status. iii. Obtain signature of responsible person. iv. Affix embargo tag. v. Clearly segregate and label the embargoed product and store in a designated area that is accessible to the person with embargo authority upon request. vi. Document identifying information of embargoed food or drink, including photos. vii. Proceed with petition proceedings. 3) Are foods and drinks prepared in facilities located in other states subject to embargo? Prepared foods and drinks originating in food service establishments outside of the regulatory jurisdiction of North Carolina are considered to be from an unapproved source since access to and inspection of the food service establishment cannot be obtained Foods prepared in out-of-state food service establishments and subsequently packaged can be considered as originating from an approved source only if prior approval has been granted through the Departments of Agriculture of both states. Foods from unapproved sources can be subject to embargo actions. Embargo and Foodborne Illness Outbreak Investigations 1) What is the appropriate course of action when investigating a foodborne illness outbreak? The control of the spread of the illness should be the first consideration when conducting a field investigation of a food borne illness outbreak. If the implicated food is still available for consumption, steps should be taken to prevent the food from being served. Voluntary disposal may be the appropriate action. However, consider the need for obtaining food samples before disposal. Embargo may be another option. 2) What should be done with food involved with a foodborne illness outbreak investigation? Food suspected of causing a foodborne illness outbreak may be needed for pathogen analysis. Consultation should be taken with the Communicable Disease Branch of the Division of Public Health, Department of Health and Human Services to determine if food samples are needed. If samples are needed, steps should be taken to obtain samples of the food voluntarily. However, embargo action may be warranted to ensure access to the food for sampling and that the food is not prematurely destroyed. 3) What should be done if intentional contamination of food is suspected? The intentional contamination of food is a criminal act and becomes the investigative jurisdiction of law enforcement. The local law enforcement agency should be contacted immediately. In a product tampering incident, the product, packaging, storage location, and 32

11 substance introduced during tampering may all be considered evidence. These items have the potential to provide significant forensic leads in the case and may be introduced into a court of law. A chain-of-custody documenting their collection, packaging, and transport is required. Anyone in contact with this evidence may be called upon to testify regarding their actions. As a result, it is important that these items are not handled or disturbed by first responders. Any responding agency should avoid contact with the evidence until law enforcement develops an evidence collection plan. If any items are handled and/or disturbed prior to being collected as evidence, every effort should be made to document all who had contact with the evidence and how the evidence was handled. Appendix 2.4 Memorandum for Local Legal Authorities The following memorandum is provided to inform local legal authorities of the need to address illegal food sales. This memorandum should accompany the document Illegal Food Sales: Fact Sheet for Local Legal Authorities. MEMORANDUM TO: FROM: Resources SUBJECT: Local Legal Authorities Division of Environmental Health, NC Department of Environment and Natural Illegal Food Sales DATE: Sept. 1, 2010 This fact sheet is designed to introduce you to the legal remedies available for use by local public health departments to address illegal food sales, a growing issue statewide. Illegal food sales have the potential to increase the risk for foodborne illnesses, leading to adverse effects on public health and our healthcare system. It is important to familiarize yourself with the legal remedies available and work closely with your local public health officials to effectively address this issue. 33

12 Appendix 2.5 Illegal Food Sales Fact Sheet for Local Legal Authorities The following document is provided to inform local legal authorities (e.g. law enforcement, court officials) of the statutes and rules that address food and drink sales. The preceding Memorandum should accompany this fact sheet. What are illegal food sales? Illegal food sales are food and drink sales conducted in violation of 130A , the regulation of food and lodging facilities. Illegal food and drink sales can come in many forms, including the sale of food and drinks from the trunks of vehicles, operation of food and drink establishments in violation of their permit status, and operation of underground restaurants from private homes. Why should we be concerned with illegal food sales? Food handled or prepared under insanitary conditions and/or subjected to time and temperature abuse can lead to the contamination of the food, including the growth of harmful microorganisms. These microorganisms can lead to an increased risk of foodborne illnesses and long-term health effects, including death. The statutes and rules pertaining to the sale of food and drinks are designed to promote safe food preparation practices that reduce the risk of foodborne illnesses. Who has regulatory authority for the retail sale of drink and food? 130A-248 requires the preparation and retail sale of drink and food (including retail sales of meat and poultry products) to be regulated by the North Carolina Department of Environment and Natural Resources (NCDENR) using rules adopted by the Commission for Public Health (15A NCAC 18A.2600). The enforcement of the statutes and rules is conducted by the Department through authorized public health officials (Environmental Health Specialists) located within each local public health department. Local Environmental Health Specialists issue permits for food establishments and conduct routine inspections of their operations to help ensure that safe food is being served. Environmental health Specialists have Right of Entry ( 130A-17). If consent for entry is not obtained, an Administrative Search and Inspection Warrant shall be obtained pursuant to (Warrants to Conduct Inspections Authorized by Law). What are the legal remedies available? Public health officials in North Carolina have a wide range of legal tools available to assist them with the enforcement of the statutes and rules pertaining to food and drink sales. In most situations, public health officials will have a choice of one or more possible remedies depending upon the violation identified. The remedies discussed below are those most commonly used. They are divided into two categories: Civil and Criminal. 34

13 Appendix 2.5 Illegal Food Sales Fact Sheet for Local Legal Authorities Civil Injunction ( 130A-18) In response to violations of the statutes and rules pertaining to food and drink sales, NCDENR or a local health director may seek an injunction in superior court ( 130A- 18). State or local authorities may pursue an injunction in addition to or in place of other remedies (such as criminal prosecution or permit suspension). Local health directors should speak with the county attorney(s) and/or the NC Department of Justice (NCDOJ). In most circumstances, the county attorney will pursue an injunction and the NC DOJ may provide support and assistance. For example, an injunction may be sought against a food vendor operating without a permit. Embargo ( 130A-21) Embargo is a remedy that allows food or drink subject to regulation by 130A-248 to be embargoed by public health officials (local health directors, NCDENR regional environmental health specialists, or the director of the Division of Environmental Health) to prevent potentially adulterated food or drink from being used or served to the public. It effectively allows the public health official to detain the food or drink until a court decides how it should be handled. The public health official must petition a court (district or superior court) for a condemnation order. The court may order the item to be destroyed. Criminal Misdemeanor ( 130A-25) A misdemeanor can be used as a remedy for violations of public health statutes, state regulations or local board of health rules ( 130A-25(a), see also 14-3(a) which provides that any unclassified misdemeanor is considered a Class 1 misdemeanor). The local public health official (with input from the county attorney or a prosecutor) should specify a type of criminal pleading from the choices below: o o o Criminal summons (used in most cases) A felony, misdemeanor, or infraction may be charged and served on the defendant, but the defendant is not arrested. Instead, the defendant is ordered to appear in court on a specific date. The summons may be issued by a judicial official, usually a magistrate. Arrest warrant. May charge a felony or misdemeanor and requires the defendant s arrest. Is issued by a judicial official, usually a magistrate. Citation. May charge a misdemeanor or an infraction. May be issued only by a law enforcement officer or other authorized person. The citation informs the defendant to appear in court on a specific date. The defendant is not arrested. 35

14 Appendix 2.6 Example of Using a Citation for Illegal Food Sales: Pitt CountyAuthorities The following excerpt is correspondence between the Pitt County Sheriff Mac Manning and the Pitt County Sheriff s Department. The correspondence establishes a Pitt County policy to address illegal food sales within Pitt County. Pitt County Sheriff Department Procedures for Addressing Illegal Food Sales From: Manning, Mac Sent: Tuesday, February 07, :27 PM To: Sheriff s Office Cc: Gallagher, Janis; Clark, Anne Subject: Public Health Violations - Mobile Food Vendors w/o Health Dept. Permit All Personnel: Be on the lookout for and take enforcement action for any persons found in construction areas selling food without a Health Department permit. This is for inside or outside of municipalities. Procedure: a) Deputy observes person(s) cooking, heating or selling food out of a a construction site. b) Ask for permit or verify connection to a permitted food service. (For example, a pizza delivery from a permitted restaurant is not violating public health law, but someone dipping soup from a pot that was cooked at home or in the vehicle would be in violation.) You can call the Health to verify that an establishment has a food service permit. c) Issue a citation using the charge format on the attached word document. d) Notify Anne Clark at the Health Department ( ) of the violation. e) Notify Janis Gallagher at the Legal Department ( ) about the offender and the court date. Note: The vendor must have a Mobile Food Unit Permit from the Pitt County Health Department. A Privilege License from a municipality is not sufficient. Mac E. Manning, Jr. Sheriff Pitt County 36

15 Appendix 2.7 Example of a Notice of Violation (NOV): Mecklenburg County The following forms (English and Spanish) are used by Mecklenburg County Environmental Health Services to issue a Notice of Violation (NOV) for illegal food sales. These are not official state NOV forms, but can be used as a template for a local form. 37

16 APPENDIX 3 CASE STUDY SUPPORTING DOCUMENTS The following documents provide additional materials in support of the Case Studies presented in Section 5. Appendix 3.1 Case #1: Non-Permitted Food Sales Authorities The following documents are copies of forms used by Wake County Environmental Health Services in Case #1. The first is a misdemeanor criminal summons issued in response to the continued illegal sale of food and the second is a NOV issued early in the investigation. 38

17 39

18 Appendix 3.2 Case #2: Food sales exceeding the criteria allowed within 130A 250 (7) The following is a copy of the Complaint for Injunctive Relief used by the Wilson County Environmental Health Services in Case #2. 40

19 41

20 42

21 43

22 44

23 45

24 Appendix 3.3 Case #3: Illegal Food Sales in Agricultural Fields The following memorandum supports Case Study #3. It was released by the Division of Environmental Health as guidance for local environmental health programs that must address illegal food sales within agricultural fields. MEMORANDUM TO: THROUGH: FROM: Environmental Health Directors, Supervisors, and Coordinators Susan C. Grayson, Head Dairy and Food Protection Branch Cris Harrelson, Regional Environmental Health Specialist Dairy and Food Protection Branch DATE: July 28, 2004 SUBJECT: Illegal Food Vendors in the Agricultural Fields For the past few years, counties have experienced problems with illegal food vendors selling prepared food to migrant workers in the agricultural fields. Observed methods of food preparation and service include cooking on gas-powered burners in the fields and selling pre-wrapped food of unknown origin from the trunks of vehicles. With the passage of SB 312, local health departments now have an enforcement tool that clearly defines that the selling of foods by non-exempt individuals is illegal. We no longer have to inquire when or if the individual has sold previously within a month. This activity is of special concern when considering the impact on agricultural product safety in light of the recent Hepatitis A outbreaks involving green onions. In addition to the spread of food borne illnesses to the migrant workers, the workers can spread the pathogens to the product being harvested when proper personal hygiene is not practiced. Since the washing of fruits and vegetables is not totally effective in removing all of the pathogens, the agricultural product could reach the consumer with the pathogens still intact. The result could be another multi-state outbreak originating from fruits and/or vegetables. Since this type of activity is not limited to any particular field of agricultural, a closer look at both the unique problems and solutions to this issue is warranted. Several factors make this situation especially problematic for local health department staff: Many vendors are Hispanic and speak little or no English. The language barrier can hamper the proper identification of the vendors and the dissemination of information from EHS to vendor. There are literally hundreds of fields that are littered with miles of farm roads in all directions. Locating and tracking the whereabouts of illegal vendors is extremely difficult. Farmers may be uncooperative. Farmers may not realize the extent of the public health impact or may focus mainly upon the economic necessity of harvesting their crop. 46

25 However, through the efforts of some counties, progress has been made in bringing attention to the potential public health impact of these illegal activities. The following recommendations are the basis of an effective action plan: Involve the growers and the professional organization(s) associated with the particular agricultural product in question. A contact for a particular Growers Association can usually be obtained through the local Agricultural Extension office. If possible, take the opportunity to speak at an Associational meeting and explain the potential problems that could result from the illegal sale of prepared food, with an emphasis on the financial impact to the grower. Follow up the meeting by inviting the president of the Association to solicit input from the growers. Through ongoing contact with the president, craft a strategy with the growers input. Send a letter to each grower approximately 1-2 months before the start of the season re-emphasizing the public health impact and outlining steps that the grower can take to better control the illegal sale of prepared food in the fields. It is important to realize that the cooperation of the growers themselves is the most effective means of stopping illegal food sales in the fields. Offer alternate suggestions for the feeding of the migrant workers. Growers are more apt to be cooperative with efforts to protect the public health if their interests are also addressed. Make the effort to locate permitted establishments with the willingness and means to supply meals to the workers, such as through the use of mobile food units, pushcarts, or cambro-style insulated units. Talk with local law enforcement officials concerning possible assistance in ceasing illegal sales. Perform unannounced inspections of the agricultural fields to document and cease any illegal food sales. Although it may be impossible to cease all illegal activity, the threat of local health department personnel randomly patrolling the fields will deter some activity. The presence of local law enforcement personnel is especially effective. Utilize Spanish language materials, such as the Spanish version of the.2600 rules, violation notices, legal documents, and any other appropriate literature. A Spanish-English interpreter is especially useful to take on a surveillance trip. When performing surveillance, document all observed activity. A digital camera is especially useful for recording vehicles, license tag numbers, and to aid in the identification of the food sellers. When interacting with illegal sellers, ensure that illegal food sales are ceased immediately. Prior to any surveillance or enforcement activity, talk with the county District Attorney concerning the General Statute violations and the threat to public health. By making them aware of the issue and the upcoming enforcement efforts, the DA s office may be more aggressive in the prosecution of offenders. Crucial information to carry to the DA is 130A-25, 130A-248(a). Make sure that the DA s guidelines are followed in regards to warrants, etc. Contact your Regional Environmental Health Specialist and/or other regulatory agencies, such as the N.C. Department of Labor, Agriculture Safety and Health ( ), for assistance and advice. 47

26 Appendix 3.4 Case #4: Illegal Caterer Preparing Food in a Private Residence The following documents are copies of forms used by Davidson County Environmental Health Services (DCEHS) in Case #4. The first is the NOV letter that was issued by DCEHS early in the investigation. The second is the Civil Complaint filed in District Court against the illegal restaurant operator/caterer. The third is the Civil Summons issued by the District Court. The last document is the Consent Judgment issued by the District Court against the illegal restaurant operator/caterer. 48

27 49

28 50

29 51

30 52

31 APPENDIX 4 130A 250 (7): EXEMPT FOOD SALES The following materials support the oversight of 130A 250 (7) and include forms and documents used by various local programs to ensure exempt activities are within the parameters of the statute. Appendix 4.1 Exempt Vendor Verification Form The following form is used by the Buncombe County Health Department to collect information on exempt food and drink sales. Environmental Health Exempt Vendor Verification Form Purpose: To aid in the verification of the exempt status of corporations desiring to serve food in accordance with GS130A-250(7). Please submit at least two weeks prior to the date of the event. G.S. 130A-250(7) states establishments (i)that are incorporated as nonprofit corporations in accordance with Chapter 55A of the General Statutes or (ii) that are exempt for federal income tax under the Internal Revenue Code, as defined in G.S or (iii) that are political committees as defined in G.S (14) and that prepare or serve food or drink for pay no more frequently than once a month for a period not to exceed two consecutive days, including establishments permitted pursuant to this Part when preparing or serving food or drink at a location other than the permitted locations. Check the type of exemption which you are requesting: (submit supporting documentation) Chapter55A of the General Statutes Exempt from federal income tax under G.S Political Committees as defined in G.S (14) Include the following on letterhead of the non-profit corporation: a. Name, address and contact person for the exempt organization (ie. registered agent, incorporator, board member) b. The purpose of this fundraiser c. A statement that all of the proceeds are to be returned to the non-profit d. Dates, times and location(s) of fundraiser e. Date and location of last exempted function Location of Fundraiser (if multiple locations, please complete separate applications) Non-Profit Contact Person Work Phone Number Cell Phone Number Address (street, city, state, zip) Contractor/Vendor/Promoter Work Phone Number Cell Phone Number Address (street, city, state, zip) Date/Time of Location: Menu (List all items): I hereby certify that the information in this application is correct, and I understand that any deviation without prior approval from the local Environmental Health Office may nullify this exemption. Signature: (Owner or Responsible Representative) 53

32 Appendix 4.2 Permit Exemption Guidelines The following permit exemption guidelines are used by the Guilford County Environmental Health to verify the status of entities requesting a food permit exemption. An information collection form, similar to Appendix 4.1, is also used. Environmental Health Division Permit Exemption Guidelines Representative of entity requesting the exemption completes the exemption information form; information to include: o Non-profit letter from IRS o Letter on non-profit letterhead stating all proceeds are to be returned to the nonprofit Submit information 2 weeks prior to event GCHD Staff verifies: o non-profit status via web: o the contents of the letter, via phone call or office visit with non-profit o non-profit s last operation. Information needed for release: o Name, address of non-profit o Name, address of vendor/promoter/contractor o Dates of operation o Times of operation o Locations of operation o Menu of each operation o Locations of any additional stations o Other relevant information A release must be given for each event, each location and each vendor/promoter/contractor. If in the City of Greensboro, release information to privilege license via fax at: After City release, sign, date and stamp with plan review raised seal for each exemption. Include a copy of suggestions for food safety Otherwise, release, sign, date and stamp with plan review raised seal for each exemption. Include a copy of suggestions for food safety 54