City Council Memorandum

Transcription

1 Building Safety Fate, TX City Council Memorandum To: Cc: Honorable Mayor Megyesi and Members of the Fate City Council Michael Kovacs, City Manager Vickey Raduechel, City Secretary Brenda McDonald, City Attorney From: Steve Gilbert, Director of Community Services & Building Safety; Date: December 18, 2017 Agenda Item and Caption: Discuss, consider, and take any necessary action regarding approval of an ordinance amending the code of ordinance by repealing chapter 8, BUSINESSES, ARTICLE III, FOOD AND FOOD SERVICE ESTABLISHMENTS ; adopting a new article III, FOOD AND FOOD SERVICE ESTABLISHMENTS that establishes and provides for the adoption of the 2015 Texas Food Establishment Rules to regulate food establishments; Action Requested: Approval. Staff Recommendation: Approval Background Information: As with other codes adopted by the City of Fate the Texas department of State health services updated the code related to food establishments and food service in 2015, the adoption of this ordinance will align the City of Fate with the current state adopted standards, additionally addressing food truck operation, outdoor bar b que establishments and farmers markets and associated uses relating to food services. Options: Approve; Deny; Deny and offer condition(s) for approval; or Table for further review. Financial Considerations: N/A. Supporting Documents (enclosed): Exhibit A1. Ordinance 1

2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF FATE, TEXAS, AMENDING THE CODE OF ORDINANCES BY REPEALING CHAPTER 8, BUSINESSES, ARTICLE III, FOOD AND FOOD SERVICE ESTABLISHMENTS ; ADOPTING A NEW ARTICLE III, FOOD AND FOOD SERVICE ESTABLISHMENTS THAT ESTABLISHES AND PROVIDES FOR THE ADOPTION OF THE 2015 TEXAS FOOD ESTABLISHMENT RULES TO REGULATE FOOD ESTABLISHMENTS; ESTABLISHING LOCAL AMENDMENTS TO THOSE RULES; ESTABLISHING REGULATIONS FOR FOOD TRUCKS, COMMERCIAL OUTDOOR COOKING, SEASONAL SNO-CONE ESTABLISHMENTS, AND FARMERS MARKETS; PROVIDING FOR A PENALTY OF A FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; PROVIDING SAVINGS, REPEALING AND SEVERABILITY CLAUSES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the State of Texas has amended, updated, revised and reorganized its regulations concerning Texas food establishment rules, as now found in 25 Tex. Administrative Code, Chapter 228; and WHEREAS, the City Council of City of Fate has determined that the following adoption and amendments to its food establishment rules by adopting the 2015 Texas Food Establishment Rules adopted by the State of Texas with local amendments would provide for and would be in the best interest to safeguard life, health, and public welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FATE, TEXAS, THAT: Section 1. Findings Incorporated. The findings set forth above are incorporated as if fully set forth herein. Section 2. Repeal. City of Fate Ordinance No , which was adopted October 22, 1988, codified as Chapter 8 Businesses, Article III (Food and Food Service Establishments) of the Code of Ordinances of the City of Fate, Texas, is hereby repealed in its entirety and replaced by this ordinance. Section 3. Adoption of Regulations. Chapter 8, Businesses, Article III, Food and Food Establishments of the City of Fate Code of Ordinances is hereby repealed and a new Article III, Food and Food Establishments is created and shall hereinafter read in its entirety as follows: - 1 -

3 Article III. FOOD AND FOOD ESTABLISHMENTS. Sec State regulations adopted. (a) City of Fate adopts by reference the provisions of the current rules or rules as amended by the Executive Commissioner of the Health and Human Services Commission found in 25 Texas Administrative Code, Chapter 228, regarding the regulation of food establishments in this jurisdiction. (b) A copy of each rule manual listed in subsection (a) of this section shall be kept on file with the city secretary. Sec Local amendments. The following sections, paragraphs, and sentences, of the rules adopted in Section ( Texas Food Establishment Rules or Rules ) are hereby amended to read as follows. (a) Rule Definitions is hereby amended as follows: Authorized agent or employee- means the employees of the regulatory authority. Food establishment means- a food service establishment, a retail food store, a temporary food establishment, a mobile food unit, and/or a roadside food vendor. State rules- mean the state rules found at 25 Texas Administrative Code, Chapter 228. These rules are known as the Texas Food Establishment Rules. Concession Stand- A food establishment operated on a seasonal basis for the purpose of providing food at sporting events associated with an independent school district, university, community college, non-profit organization, privately owned school or the City of Fate. Event- A unique public gathering of persons at which food products will be served or offered directly to consumers, such as seasonal sales, marketing events, festival, carnivals, fundraisers, sporting event, or other public gathering which is civic, political, public or educational in nature and for which an appropriate regulatory authority is required to grant permission for the operation of the event, whether by permit, license, or other official written document. Fate or City- City of Fate or the municipality of the City of Fate. Food Truck- A mobile food unit (MFU) as defined herein, additionally defined as a vehicle equipped with facilities for cooking and selling food that is permitted to operate at one location for a period of time exceeding fifteen (15) minutes under this ordinance. Ice Cream Truck- A mobile food unit (MFU) operator that vends only pre-packaged frozen dairy or frozen water based food products, soft serve, or hand dipped frozen dairy - 2 -

4 products or frozen water based products, and pre-packaged beverages. Misbranded-The presence of any written, printed, or graphic matter upon or accompanying food or containers of food, which is false or misleading, or which violates any applicable state or local labeling requirement as they exist or may be amended. Private Event- An event at which food and/or beverages are offered to participants and (a) is held on public or privately owned premises or a location operated by an organization, group, club, association, or institution that is not available for use by the general public and where entry to the event is governed by regulations or invitation of that organization, group, club, association, or institution; or (b) where food and/or beverages are offered as samples or given to event volunteers or staff. Regulatory Authority or Local Regulatory Authority- The City of Fate or its authorized designee. Farmers market- A designated location used for the distribution and sale directly to consumers of food by farmers and/or other producers. A farmers market is not a food establishment and it operates on a seasonal basis. Farmers market vendor- Any person or persons who operate, offer, or sells food typically known as farm grown, farm or originating, or farm obtained from a location approved on private or public property. Foods included in farm grown are whole produce, plants, nuts, certain meats, honey, eggs, and pasteurized dairy products. Seasonal Permit- A permit which is issued to a food establishment, or farmers market, that operates in a fixed location for more than fourteen (14) consecutive days. Smoker/barbeque pit- Any unit whether mobile or fixed in nature, which uses wood or wood products to provide smoke for the purpose of slow cooking meats intended for human consumption. Smokers must meet local zoning, building and fire codes. (b) Rule Water Quality and availability, subsection (c) is hereby amended as follows: c) Hot water, hot water generation and distribution system shall be sufficient to meet the peak hot water demands throughout the food establishment. Sizing of supply system shall comply with NSF standards approved by the regulatory authority. (c) Rule Plumbing numbers and capacities, subsection (c)(1) is hereby amended as follows: c) Service sink. (1) At least one (1) floor curbed cleaning facility, equipped with a floor drain, shall be provided and conveniently located for the cleaning of mops, or similar floor cleaning tools and for the disposal of mop water and similar liquid waste

5 (d) Rule Sewage Retention, drainage and delivery, subsection (d) is hereby amended as follows: (d) Grease trap. (1) A grease trap or grease interceptor is required unless otherwise approved by the regulatory authority, and shall be located to be easily accessible for cleaning, operation, and maintenance. The location of the grease trap or grease interceptor must be approved by the regulatory authority and shall not be within an area where food is held, prepared, stored, or transferred. Grease traps and grease interceptors shall be sized and installed in compliance with the current adopted plumbing code of the City. All grease traps and grease interceptors shall also be approved by the regulatory authority prior to installation. Grease separators designed to be serviced manually by food establishment employees shall not be permitted. Grease interceptors or separators located above ground, or beneath a fixture are prohibited unless otherwise approved by the regulatory authority. (2) All food establishments requiring a grease trap or grease interceptor shall enter into a contract with a waste hauler licensed by the state regulatory having authority over waste haulers, to provide for regularly scheduled service not to exceed ninety (90) days unless otherwise approved by the regulatory authority. Service records of such grease traps shall be maintained and made available upon request of the regulatory authority. (e) Rule Outdoor areas, surface characteristics, subsection (a) is hereby amended as follows: (a) Walking and driving areas. The outdoor walking and driving areas shall be surfaced with concrete or other material approved by the regulatory authority. (f) Rule Floors walls, and ceilings, subsections (a) and (f)(1) and (3) are hereby amended as follows: a) Cleanability. The floors, floor coverings, walls, wall coverings, and ceilings in food preparation, dishwashing bar and service areas shall be designed, constructed and installed so they are smooth, non-absorbent and easily cleanable, except that anti-slip floor coverings or applications may be used for safety concerns. Floors shall be free of cracks, chips, holes, and deterioration. The regulatory authority shall require repair of any floor which fails to meet the requirements of this section. (f) Wall and ceiling coverings and coatings. (1) Wall and ceiling material shall be attached so they are easily cleanable. Walls subject to heat from equipment such as grills, fryers, or gas burners must be covered with stainless steel from floor to the ventilation hood unless otherwise approved. Food preparation areas shall be non-absorbent and easily cleanable, all coverings shall be approved by the regulatory authority

6 Ceilings shall be non-absorbent and easily cleanable. All ceilings shall be approved by the regulatory authority. (3) Wall surface in dedicated bar service areas of food establishment and employee toilet rooms shall be durable, non-absorbent and easily cleanable to a minimum height of four (4) feet. (A) Food preparation, bar, and service areas. Food contact surfaces shall be stainless steel with the exception of certain approved polymer cutting boards. Customer service counters, food packing areas, take out windows and similar areas shall be surfaced with a material that is smooth, non-absorbent, durable and cleanable as approved by the regulatory authority. (B) Food service equipment. All food service equipment shall be commercial grade, approved by the national sanitation foundation (NSF) for it s intended use and shall be maintained in a condition that facilitates thorough and rapid cleaning. (g) Rule Mobile Food Units, subsections (a)(1), (4) and (12) and (b)(3) are hereby amended as follows: (a) Mobile Food Unit provisions. (1) General. Except as otherwise provided in this paragraph and in paragraph (2) of this subsection, the regulatory authority may impose additional requirements to protect against health hazards related to the conduct of the food establishment as a mobile operation, may prohibit the sale of some or all time/temperature control for safety (TCS) food, and when no health hazard will result, may waive or modify requirements of this rule relating to physical facilities, except those requirements as specified in paragraphs (7) and (8) of this subsection; subsection (c)(1)(a)-(e) of this section and of this title. The regulatory authority shall require a Mobile Food Unit operator to demonstrate that the vehicle is readily moveable. (A) Except when classified as a MFU Food Truck under this Ordinance or other City of Fate ordinances as they exist or may be amended, a mobile food unit shall not operate at one location for a period of more than fifteen (15) minutes. A mobile food unit shall not operate at any location in which such operation would be prohibited under the City of Fate zoning or any other ordinances as they may exist or be amended. (4) Initial permitting and inspection. The regulatory authority shall require a mobile food unit/food truck to come to a location designated by the authority for inspection. The mobile food unit/food truck must be totally operable at the time of inspection, a mobile food unit/food truck may not operate within the City of Fate without a valid permit. The following documents shall be submitted with a completed application: (A) Copy of valid Driver s license; (B) Copy of successful completion of food manager or food handler certification, where required, from accredited and approved vendor; (C) Copy of central preparation facility documents (inspection and - 5 -

7 commissary information page); (D) Proof of insurance for permitted vehicle; (E) List of food items if not pre-packaged; and (F) Any other documents requested by the regulatory authority in the interest of public health. (12) The owner/operator of a mobile food unit/food truck shall display a mobile food unit permit, affixed directly to the mobile food unit. (b) Central preparation facility. (3) The owner/operator of a mobile food unit shall inform the regulatory authority immediately upon changing or discontinuing use of a central preparation facility and shall immediately cease operation until a commissary letter verifying use of a new central preparation facility has been approved. (h) Rule Permit Requirements. Prerequisite for Operation is hereby amended as follows: (a) Permit required. A person shall not operate a food establishment without a valid permit to operate issued by the regulatory authority. Permits are not transferrable from one person to another or from one location to another location, except as otherwise permitted by this Code. A valid permit must be posted in or on every food establishment regulated by this Code. (b) Permit application. Any person desiring to operate a permanent, temporary or mobile food establishment within the City of Fate shall make written application for a permit on forms provided by the regulatory authority. (c) Fees. An annual permit fee as set forth in appendix A to this Code shall be paid for the purpose of inspection fees. Temporary permit fee is a fee for a temporary health permit as set forth in appendix A to this Code which shall be required for any food establishment operating less than fourteen (14) days. (d) Posting. A valid permit shall be posted in public view and in a conspicuous location at the food establishment for which it is issued. (i) Rule Inspection frequency, performance-based and risk based, subsection (a) is hereby amended as follows: (a) the regulatory authority shall inspect each food establishment at least once every six (6) months, and may inspect as often as necessary to ensure health and safety of the public. Establishments classified as limited food establishments, concession, kiosks and mobile food vendors shall be inspected as needed in order to provide inspection documentation to any regulatory authority agency

8 Section Food Trucks and Food Truck Operation. (a) Permits and Inspection. Food trucks shall comply with the permitting and inspection requirements as set forth in Rule Mobile Food Units of the Texas Food Establishment Rules. (b) Location and operation: (1) Public property. Food trucks may operate on public/city property with documented prior approval specifying dates and hours of operation. (2) Private property. Food trucks may operate on non-residential private property subject to the following conditions: (A) Approval from property owner, authorized property management company, and/or a valid certificate of occupancy holder providing written approval for operation and location; (B) Food truck must report to its central preparation facility at least once per day; (C) Food trucks may operate no closer than ten (10) feet from each other; and (D) Food trucks may not require the use of more than twenty-five (25) percent of the parking spaces located on the property it is operating from. (c) The location and operation shall not impede traffic, shall not be in a fire lane and is subject to relocation by the regulatory authority. (d) Not more than two food trucks may operate at any one location unless approved by the regulatory authority. (e) Food trucks operating on a site that exceed the limits of a mobile food unit shall provide sanitary convenience for its employees during hours of operation. (f) Ice cream trucks. An ice cream truck may operate on private non-residential property with written permission of the property owner. The location and operation may not impeded traffic, shall not be in a fire lane, and is subject to relocation by the regulatory authority. (g) Operation Requirements: (1) Food trucks/mobile food units may not operate, stop, stand or park in any area of the right of way that is intended for use by vehicular travel, or that in any way impedes, the use of the right of way or that presents an unsafe condition for patrons, pedestrians, or other vehicles. (2) Food trucks/mobile food units may not operate in a location that impedes the ingress to, egress from or signage of another business or otherwise cause undue interference with access to other businesses or emergency areas, paths, or facilities. (3) Noise. Amplified music or other sounds from any mobile food unit vehicles may not at any time unreasonably disturb nearby businesses, pedestrians, or vehicles

9 (4) Waste. The area of a food truck operation must be kept neat and orderly at all times. The operator must provide proper trash receptacles for public use during hours of operation. All trash with in area of operation must be removed at the end of operation day. Section Commercial Outdoor Cooking on barbeque pit/smoker. (a) Fixed food establishment. Outdoor barbeque pits/smokers used in conjunction with a fixed food establishment shall have, as a minimum an overhead cover, an enclosed screened shelter and floors that are surfaced with concrete or approved surface by the regulatory authority. A handwashing facility with hot and cold water is required in shelter. (b) Temporary Food establishments. Barbeque pits/smokers operated in conjunction with a temporary food establishment shall meet the requirements outlined in Rule of the Texas Food Establishment Rules. Overhead protection is required at the preparation area and pit area. Enclosure and screening will be required if evidence of insect, rodent, or other pest contamination exists. Handwashing facilities with tempered, flowing, water must be available at the preparation site. (c) Barbeque pits/smoker on mobile food units. Barbeque pits/smokers that are not attached to a mobile food unit do not have to be screened unless there is evidence of insect, rodent, or other pest contamination at the pit. All preparation should be conducted inside the unit, which must have all the required hand washing sinks and warewashing sinks. If any food preparation activities such as cutting, or slicing occur at the pit/smoker handwashing facilities must be available at that location and overhead cover must be provided. Section Seasonal Sno-Cone establishment. (a) A seasonal permit may be obtained for food establishments at which only sno-cone related foods shall be prepared or offered for sale. The preparation or sale of any time/temperature control for safety foods at such establishments are prohibited. (b) Location subject to requirements listed in Rule (a)(1)(A), as amended within this Code. (c) Ice. Ice to be used for sno-cones shall be obtained in chipped, crushed, cubed or block form and in single use safe plastic bags filled and sealed at the point of manufacture. (d) Equipment. A three compartment sink and handwashing sink shall be provided. (e) Service opening. A service opening for a sno-cone establishment shall be constructed with screen doors which shall remain closed except when serving customers. (f) Water supply. All equipment used for potable water supply system shall be listed for such use. All potable water that is not provided directly by pipe to the establishment shall be from an approved source

10 (g) Employee restrooms. Sno-cone type establishments shall have adequate, convenient, and accessible toilet, and lavatory facilities at all times. Section Farmers market. (a) Farmers market. A permit must be obtained by each food vendor and classified as a temporary food permit. (b) Foods. All foods sold at the farmers market must fall within the listed categories below. (1) Produce which must be sold in a whole state. (2) Manufactured foods with a license from the Department of State Health Services (DSHS) (3) Commercially produced pre-packaged items from a licensed facility or commissary. (4) No unlabeled foods, or foods from any source other than the documented commissary may be sold to the public. (c) Cottage food producers. Cottage food producers can sell only the following: Breads, rolls, biscuits, sweet breads, muffins, cakes, pastries, cookies, candy, coated or uncoated nuts, unroasted nut butters, fruit butters, canned jam or jelly, fruit pies, dehydrated fruits or vegetables, pickles, vinegar, mustard, roasted coffee, dry tea, dried herbs or dried herb mixtures. Baked goods must be without time/temperature control for safety food ingredients or icings. All cottage food produced items must be legibly labeled. (d) Manufactured Products. All vendors selling time/temperature control for safety (TCS) food items such as meat, eggs, or milk will be required to have mechanical refrigeration to keep the product at the required temperatures. All meat frozen at 0 degrees F.; whole shell eggs at 45 degrees F. or lower; and milk at 41 Degrees F., or lower. (e) Meat products must come from an approved source USDA stamp or DSHS meat and safety assurance. (f) Milk Products. Raw unpasteurized milk is not allowed to be sold. Section Suspension of permit. (a) The regulatory authority may without warning, notice or hearing suspend any permit to operate a food establishment if operation of the food establishment constitutes and imminent hazard to public health. Suspension is effective upon service of the notice required by this Section. When a permit is suspended, food operation shall immediately cease. Whenever a permit is suspended, the holder of the permit shall be afforded an opportunity for a hearing within ten (10) days of receipt of a hearing. (b) Whenever a permit is suspended, the holder of the permit or the person in charge shall be - 9 -

11 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 (10) days. If no written request for hearing is filed within ten (10) days, the suspension is sustained. The regulatory authority may end the suspension at any time if reason for suspension no longer exists. Section Revocation of permit. (a) The regulatory authority may, after providing opportunity for a hearing, revoke a permit for serious or repeated violations of any of the requirements of this Article III or for interference with the regulatory authority in 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 ten (10) 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 (10) day period. (b) If no request for hearing is filed within the ten (10) day period, the revocation of the permit becomes final. Section Administrative Process. (a) A notice as required in this Article III 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. A copy of the notice shall be filed in the records of the regulatory authority. (b) The hearings provided for in this Article III shall be conducted by the regulatory authority at a time and place designated by it. Based upon the recorded evidence of such hearing, the regulatory authority shall make final findings, 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 by the regulatory authority. Section Remedies (a) Any person who violates a provision of this Article III and any person who is the permit holder of or otherwise operates a food service establishment that does not comply with the requirements of this Article and any responsible officer of that permit holder or those persons shall be fined not more than two-thousand ($2,000.00) dollars per offense, and each day or portion of a day during which the violation is committed, continued or permitted is a separate offense. (b) The regulatory authority may seek to enjoin violations of this Article

12 Section 4. PENALTY CLAUSE Any person, firm or corporation violating any of the provisions or terms of this Ordinance shall be subject to a penalty as provided by the Code of Ordinances of the City of Fate, Texas. Section 5. SAVINGS/REPEALING CLAUSE All provisions of any ordinance in conflict with this ordinance are hereby repealed: but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinance shall remain in full force and effect. Section 6. SEVERABILITY CLAUSE Should any section, subsection, sentence, clause, or phrase of this ordinance be declared unconstitutional and/or invalid by a court of competent jurisdiction it is expressly provided that any and all remaining portions of this ordinance shall remain in full force and effect. The City of Fate hereby declares that it would have passed this ordinance and each section, subsection, clause, or phrase thereof, regardless of whether any or one or more sections, subsections, sentences, clauses, or phrases is declared unconstitutional and/or invalid. Section 7. EFFECTIVE DATE This Ordinance shall become effective immediately upon its passage and publication as required by law. PASSED, APPROVED AND ADOPTED by the City Council of the City of Fate, Texas, on this the 18 th day of December, ATTEST: Lorne Megyesi, Mayor Victoria Raduechel, City Secretary APPROVED AS TO FORM: Brenda N. McDonald, City Attorney