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Ord 81-2009 11/3/2009 ORDINANCE NO. `�1- �CC` 1 Ordinance Of The City Council Of The City Of Wichita Falls, Texas, Amending Article VI Of Chapter 26 Of The Code Of Ordinances Of The City Of Wichita Falls To Modify The City's Food Establishment Regulations, And Providing A Penalty Of Up To $2000 Upon Violation WHEREAS, the Health District and the Board of Health recommend revision of the existing Food, Food Vender and establishment Ordinance; and, WHEREAS, the City Council of the City of Wichita Falls desires to adopt a Food, Food Vendor and Establishments Ordinance that is in the best interest of all citizens, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: 1. Article VI of Chapter 26 of the Code of Ordinances of the City of Wichita Falts is amended to read as follows: "ARTICLE VI. FOOD AND FOOD VENDORS AND ESTABLISHMENTS. DIVISION 1. GENERALLY. Sec.26-421. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Authorized agent and employee means an employee of the general environmental health division of the regulatory authority. Commissary means a central preparation facility for supplies, cleaning, food prep and servicing operations by mobile food establishments. Extensive remodeling means that 20 percent or greater of the square footage of the food establishment is to be remodeled. Food means a raw, cooked or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum. Food establishment: (a) Means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption: (1) Such as a restaurant; retail food store; satellite or catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and (2) That relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers. (b) Includes: (1) An element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and (2) An operation that is conducted in a mobile, stationary, temporary, or permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food. (c) Does not include: (1) An establishment that offers only prepackaged foods that are not potentially hazardous as that phrase is defined by 25 Texas Administrative Code §229.162; (2) A produce stand that only offers whole, uncut fresh fruits and vegetables; (3) A food processing plant; (4) A kitchen in a private home if only food that is not potentially hazardous is prepared for sale or service at a function such as a religious or charitable organization's bake sale if allowed by law; (5) An area where food that is prepared as specified in subsection (c)(4) above is sold or offered for human consumption; (6) A"bed and breakfast limited" facility as that phrase is defined by 25 Texas Administrative Code §229.162; or (7) A private home that receives catered or home-delivered food. Frozen dessert(s) means soft serve and frozen yogurt. Frozen dessert pre-mix means any raw dairy-based product used to create a frozen dessert. Frozen yogurt means a food produced by the bacterial fermentation of milk and served frozen or partially frozen. Laboratory means a biological, physical or chemical laboratory which is under the supervision of the state or local health authority. Mobile food establishment means a vehicle-mounted food establishment that is readily moveable. Mobile food establishment includes carts or trailers that are on wheels and designed to be drawn by a motor vehicle, regardless of whether the cart or trailer is fastened to a motor vehicle at any given time. Primary process means the food preparation or vending process for which the majority of the square footage of a food establishment is used. For example, in a grocery store of 20,000 square feet where 18,000 square feet are used for the display of pre-packaged groceries and 2,000 square feet are used for a fresh fish market, the primary process of that food establishment is pre- packaged grocery sales. Process means the method or amount of preparation of food utilized by a food establishment before the food is provided to the individual who will consume it. Pushcart means a non-self-propelled mobile food establishment on wheels. Pushcart includes a mobile food establishment on a bicycle. Readily moveable means on wheels at all time. Regulatory authority means the city-county public health district. Soft serve means a food similar to ice cream which is created by the combination of air and dairy-based ingredients in a machine at the point of sale. State rules means the state rules found at 25 Texas Administrative Code, chapter 229, §§ 161-- 171 and 173--175. These rules are also known as the Texas Food Establishment Rules. Vend and vending mean to sell, serve or otherwise provide food for human consumption. Vend point means the time and place at which food is served, vended or transferred to a consumer directly, regardless of whether there is a charge far the food. Sec. 26-422. Rules of state board of health adopted. The city adopts by reference the provisions of the current rules or the rules as amended by the state board of health found in 25 Texas Administrative Code, chapter 229, §§ 161-171 and 173- 175 regarding the regulation of food establishments. Sec. 26-423. Cleaning standards for commercial cooking equipment adopted. The city adopts by reference the provisions of NSF (National Sanitation Foundation)/ANSI (American National Standards Institute) 4: NSF International Standard/American National Standard for Food Equipment — Commercial cooking, rethermalization, and powered hot food holding and transport equipment regarding the minimum food protection and sanitation requirements for the materials, design, construction, and performance of commercial cooking, rethermalization, and hot food holding and transport equipment and their related components. Standards applicable to the materials, design and construction of commercial cooking equipment shall apply only to equipment installed after December 3, 2009. Sec. 26-424. Compliance with applicable laws required. All persons who manage, operate, accept employment in, or are employed in any food establishment shall comply with all applicable federal and state statutes and regulations and with all applicable sections of this Code and city ordinances. Sec.26-425. Violations. Any violation of this article, including a violation of the rules adopted by reference pursuant to Secs. 26-422 through 26-424, shall be a Class C misdemeanor punishable by a fine as set out in Sec. 1-14. Each day upon which a violation occurs shall constitute a separate violation. Secs.26-426--26-450. Reserved. DIVISION 2. FOOD SERVICE ESTABLISHMENTS. Subdivision I. In General. Secs.26-451--26-475. Reserved. Subdivision II. Permit. Sec.26-476. Required. A person may not operate a food establishment without a permit issued by the regulatory authority. Permits are not transferable from one person to another or from one location to another location, except as otherwise permitted by this division. A valid permit must be posted per Sec. 26-479 in or on every food establishment regulated by this division. Sec. 26-477. Application and renewal. (a) Any person desiring to operate a food establishment must make written application for a permit on forms provided by the regulatory authority. The application must contain the name and address of each applicant, the location and type of the proposed food establishment, and any information required by Sec. 26-480. The application must be submitted with the applicable fee. An incomplete application will not be accepted. (b) Failure to provide all required information or falsifying information required may result in denial or revocation of the permit. (c) All permits issued under this subdivision shall remain in force for one year from the date of issuance unless revoked or suspended by the regulatory authority. Permit fees shall be paid to the regulatory authority at the time of application for initial permits and fifteen (15) days prior to permit expiration for renewal permits. All permit holders, including non-profits, that submit renewal applications and or fees after the permit expires will be assessed a late charge. A complete application with updated information is required for each renewal permit. Any changes to the physical facility, menu or equipment must be included in the renewal application. Sec. 26-478. Inspection. Prior to the approval of an initial food establishment permit or the renewal of an existing permit, the regulatory authority shall inspect the proposed food establishment to determine compliance with applicable laws and state rules. A food establishment that does not comply with applicable laws and state rules will be denied a permit or the renewal of a permit. Sec. 26-479. Compliance required; posting; term; fee. (a) Only persons who comply with the requirements of this division shall be entitled to receive and retain a permit required by this subdivision. Such permit shall be posted in a conspicuous place in public view in or on the food establishment. All permits issued under this subdivision remain in force one year from the date of issuance unless revoked or suspended. (b) The following permits will be issued under this subdivision: (1) Process 1: low to moderate risk. This process involves food sale with or without preparation and includes no cooking. Generally, the steps in this process are: Receive --� Store � Prepare � Hold � Serve � Vend —� Stock. (2) Process 2: high risk. This process involves food preparation for same day service. Generally, the steps in this process are: Receive —> Store —� Prepare —> Cook —> Hold --> Serve. (3) Process 3: very high risk. This process involves complex food preparation. Generally, the steps in this process are: Receive � Store � Prepare � Cook � Cool � Reheat � Hot Hold � Serve. (4) Temporary events. These events last no more than seven consecutive days and applicants are limited to five (5) temporary event permits per year. No annually permitted establishment shall allow temporary event food vending at their site unless a temporary event application has been submitted to the regulatory authority. Sec. 26-480. Review of plans. (a) Whenever a food establishment is constructed or extensively remodeled and whenever an existing structure is converted to use as a food establishment, plans and specifications properly prepared by an architect or engineer for such construction, remodeling or conversion shall be submitted to the regulatory authority for review before wark is begun. The submitted plans and specifications shall indicate the proposed layout, equipment arrangement, mechanical plans and construction of materials of work areas, and the type and model of proposed fixed equipment and facilities. Every commissary shall additionally submit plans showing refrigerated and dry storage areas reserved for mobile unit use. Food establishments that have been closed and are being reopened under new management as the same type of establishment shall be required to submit new equipment specifications and a floor plan of the food establishment. The regulatory authority shall approve the plans and specifications if they meet the requirements of the rules adopted by this division. The approved plans and specifications must be followed in construction, remodeling or conversion. (b) Failure to follow the approved plans and specifications will result in a permit denial, suspension, or revocation. Sec.26-481. Suspension. (a) 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. A supervisor at the regulatory authority will confirm the hazard before suspension is effective when possible. Suspension is effective upon service of the written notice required by this subdivision. When a permit is suspended, food operations shall immediately cease. The regulatory authority may end the suspension at any time if the reason for suspension no longer exists. (b) Whenever a permit is suspended, the holder of the permit or the person in charge of the food establishment at the time of suspension shall be notified in writing that the permit is, upon service of the notice, immediately suspended. Opportunity for a hearing will be provided if the holder of the permit files a written request with the regulatory authority within ten days of receipt of written notice of suspension. Whenever a permit is suspended and a request for hearing made, the holder of the permit shall be afforded a hearing within 20 days of the receipt by the regulatory authority of a request for a hearing. If no written request for a 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. Sec. 26-482. Revocation of permit. The regulatory authority may, after providing opportunity for a hearing, revoke a food establishment permit for serious or repeated violations of any of the requirements of this division or for interference with the 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 of the food establishment at the time of revocation, in writing, of the reason for which the permit is subject to revocation. The permit shall be revoked at the end of ten days following service of such notice unless the holder of the permit files a written request for a hearing with the regulatory authority within such ten-day period. If no request for a hearing is filed within the ten-day period, the revocation of the permit becomes final. Sec. 26-483. Service of notice; conduct of hearings. (a) A notice as required in this subdivision is properly served when it is delivered to the holder of the permit or the person in charge of the food establishment at the time of the notice 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 regulatory authority shall conduct the hearings provided for in this subdivision at a time and place designated by the regulatory authority. 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. The regulatory authority shall furnish a written report of the hearing decision to the holder of the permit. Secs.26-484--26-510. Reserved. Subdivision III. Frozen Dessert Regulations. Sec. 26-511. Frozen dessert standards. (a) All frozen desserts must meet the following standards: (1) Maximum temperature: 41°F; (2) Maximum total coliform; 150/ml. (b) All soft serve must meet the following standard: (1) Maximum standard plate count: 200,000/ml. Sec. 26-512. Frozen dessert certification required. (a) Every food establishment that prepares, serves, provides, sells, displays or stores for future sale, or offers for sale frozen desserts far human consumption must have a frozen dessert certification in addition to its permit, regardless of permit category. (b) In order to receive and maintain frozen dessert certification: (1) One employee from each mobile, stationary, temporary, seasonal or permanent facility or location must attend and successfully complete frozen dessert training annually. The regulatory authority will provide frozen dessert training four times a year to provide instruction in general operation, cleaning and maintenance procedures. (2) At least three samples of any frozen dessert pre-mix and three samples of any final frozen dessert product shall be sampled annually by the regulatory authority from each machine operated by a food establishment. Each sample will be submitted to an approved laboratory for analysis of its content. (3) If any samples collected from a food establishment are not within the standards established in Sec. 26-511, additional samples will be collected and an inspection of the equipment and facility will be conducted to determine the reason for the violation of the standards. No food establishment shall adopt any procedures that would result in repeated failures of the first samples collected for any annual inspection. Two consecutive frozen dessert samples determined by laboratory analysis to be above the limits of the standards will result in suspension of the permit to operate the food establishment or suspension of the frozen dessert certification. A resample and inspection fee will be charged for each consecutive inspection and sample tested after a permit or certification has been suspended. (c) The certification shall be posted in a conspicuous place in public view. (d) All certifications issued under this subdivision shall remain in force for one year from the date of issuance unless revoked or suspended. Sec. 26-513. Suspension, revocation and reinstatement of frozen dessert certification. (a) A frozen dessert certification issued under this subdivision may be suspended or revoked by the regulatory authority upon the violation by the holder of any of the terms of this article. (b) Any person or food establishment whose frozen dessert certification has been suspended or revoked shall immediately discontinue the preparation, service, provision, sale, display or storage for future sale of frozen dessert until the defects that caused the suspension have been corrected and the certification reinstated. Following correction, the applicant may request reinstatement of the certification by the regulatory authority. The regulatory authority may require the certification holder to demonstrate proper cleaning procedures and maintenance of the frozen dessert equipment before reinstating the certification. (c) Notice of suspension or revocation, and the conduct of hearing for any suspension or revocation of a frozen dessert certification shall be conducted under the procedures established in 26-481 through 26-483. Sec.26-514. Labeling. All frozen dessert products and frozen dessert pre-mix not sold at the point of manufactured origin must be properly labeled according to current Food and Drug Administration guidelines. Sec. 26-515. Vending without certification. It shall be unlawful for any person to prepare, serve, provide, sell, display or store for future sale, or offer for sale frozen desserts at a food establishment that does not hold a current frozen dessert certification. Sec. 26-516. Possession or receiving from manufacturer without certification. It shall be unlawful for any person to receive into the city for sale or to offer for sale in the city or to have in storage for future sale ice cream mix or frozen dessert pre-mix without first applying for all required permits and certifications from the regulatory authority. Secs.26-517-26-544. Reserved. DIVISION 3. FOOD HANDLER'S TRAINING CERTIFICATE. Sec.26-545. Required. It shall be unlawful for any person to accept employment in any food establishment without securing from the regulatory authority a food handler's training certificate. It shall be unlawful for any person operating or managing any food establishment to employ or retain any person or allow any person to work as a food handler unless that person has obtained either a current temporary receipt issued under section 26-548 or a current food handler's training certificate. Sec.26-546. Application. Any person who is required to have a food handler's training certificate under this division shall make application to the regulatory authority. Every applicant shall attend and successfully complete a training course in sanitation and the handling of food. The course must be approved for this purpose by the regulatory authority. Sec. 26-547. Temporary receipt; issuance. (a) When an applicant for a certificate required by this division makes application to the regulatary authority, a temporary receipt, valid for 30 calendar days, will be issued to the applicant to allow the applicant to continue employment at a food establishment while completing the course required by Sec. 26-546. Applicants are limited to three successive temporary receipts. If an applicant has not successfully completed the training course by the time the third temporary receipt expires, he cannot continue employment as a food handler. (b) Upon successful completion of the training course, the regulatory authority will issue a food handler's training certificate, which shall expire two years from the date of the food handler's certificate application. The fourth consecutive food handler's training certificate shall become permanent, and attending future food handler's training courses is not required. Sec. 26-548. Training courses accepted. The regulatory authority shall accept training issued by all companies or programs approved by the Texas Department of State Health Services under 25 TAC §229.178. Persons who have completed such training shall make application to the regulatory authority for food handler's training certification and pay the appropriate fee to be registered as a food handler. Sec.26-549. Fee. A fee shall be charged by the health district for completing the food handler's training certificate and maintaining records. There shall be a charge for replacement cards. Sec. 26-550. Records to be kept. It shall be the duty of the regulatory authority to provide for the keeping of a permanent record, together with the date of issuance of all permanent food handler's certificates issued to a person under this division. All other food handler's certificate records shall be kept for a period of not less than five years. Secs.26-551--26-569. Reserved. DIVISION 4. MOBILE FOOD VENDORS. Subdivision I. In General. Sec. 26-570. Annual inspection required. The regulatory authority shall inspect every mobile food establishment during normal business hours at 1700 Third Street each year prior to the mobile food establishment's use for vending. Additional inspections shall be made when indicated. The regulatory authority shall inspect each mobile food establishment to determine whether it complies with this article and state and local laws, and whether it qualifies as a mobile food establishment. Sec. 26-571. Central preparation facility and records required. (a) Mobile food establishments shall operate from a commissary or other fixed food establishment and shall report to such location daily for supplies and for daily cleaning and servicing operations. The commissary or other fixed food establishment shall be permitted and inspected separately from the mobile food establishments it services. (b) Mobile food establishments shall maintain, for a period of no less than 180 days, records of daily commissary reporting. Such records shall contain the name and address of the commissary and the name or identification number of the mobile unit. The records shall note the daily service of the water system, the daily service of the sewage system, the daily cleaning of the mobile food establishment interior, and the name of the person responsible for such. The records shall also note the frequency of the cleaning of the exterior of the unit. These records shall be provided to the regulatory authority upon request. Sec. 26-572. Mobile food establishment restrictions. (a) A person shall not vend on any portion of city streets where the speed limit exceeds 30 miles per hour or on four-lane divided roadways. (b) A person shall not vend within 500 feet of any property used as a public or private elementary, junior high, middle or high school from one hour before the regular school day to one hour after the regular school day. This subsection shall not apply on days when children do not attend the school in question. (c) A person shall vend only when the mobile food establishment is lawfully parked or stopped. (d) A person shall vend only from the side of the mobile food establishment away from moving traffic and as near as possible to the curb or edge of the street. (e) A person shall not vend from a mobile food establishment to a person standing in the roadway. (� A person shall not stop a mobile food establishment on the left side of a one-way street to vend. (g) A person shall not vend from a mobile food establishment on a street unless there is a clear view of the mobile food establishment for a distance of 200 feet in each direction. (h) A person shall not set up, maintain or permit the use of any tables, chairs or benches for customer seating outside or within twenty feet of a mobile food establishment. (i) A person shall not make any alteration, removal, attachments, placement or change in, under or upon a mobile food establishment that would prevent or otherwise reduce ready mobility. Sec. 26-573. Backing truck to make or attempt sale. The driver or operator of a mobile food establishment shall not back the vehicle or trailer to make or attempt a sale. Sec. 26-574. Unauthorized persons prohibited in mobile food establishment. (a) The driver or operator of a mobile food establishment shall not permit any unauthorized person to ride in or on the vehicles or trailers comprising the mobile food establishment. (b) A person shall not ride in or on a mobile food establishment unless employed by its owner or unless authorized in writing to do so by the owner or police department. Secs.26-575-26-599. Reserved. Subdivision II. Pushcarts and vending afoot. Sec. 26-600. Compliance required. It shall be unlawful for an individual to operate a pushcart or to vend food items afoot without complying with this subdivision and any applicable requirements of this article. Sec. 26-601. Permits required. No person shall vend food items from a pushcart or vend food items from afoot who does not possess a license required by the city and all applicable permits which may be required under this article. Sec. 26-602. Suspension and revocation of permits. Notice of suspension or revocation, and the conduct of hearing for any suspension or revocation of a permit for a pushcart or vending afoot shall be conducted under the procedures established in 26-481 through 26-483. Sec. 26-603. Prohibited conduct. No person shall: (1) Operate a pushcart in any area other than that area bounded by the street curb (or edge of the pavement, if no curb is in existence) and the property line abutting the street right-of-way line. (2) Operate a pushcart or vend any food within 25 feet of the street corner of an intersection. (3) Operate a pushcart within ten feet of a driveway or alley and its approach. (4) Operate a pushcart in such a manner as to obstruct or hinder the movement of pedestrian traffic. There shall be a clear pedestrian path with a minimum width of three feet at all times. (5) Leave any mobile pushcart unattended or park a pushcart in one location for extended periods of more than 24 hours. It shall be a defense to prosecution under this section that the pushcart was legally parked at its commissary for service or storage. (6) Stare or leave any pushcart overnight on any street or sidewalk or park any pushcart in any location other than in a lawful parking place in conformance with city and state parking regulations. (7) Operate a pushcart or vend food items afoot while selling food for immediate consumption unless he has his own trash receptacle which is readily available for his patrons' use. (8) Leave any location after operating a pushcart of vending food items afoot without first picking up, removing and disposing of all trash or refuse remaining from sales made by him. (9) Set up, maintain or permit the use of any table, carton, rack, or any other device or item to increase the selling or display capacity of his pushcart. (10) Set up, maintain or permit the use of any tables, chairs or benches for customer seating outside or near a pushcart. (11) Solicit or conduct business from a pushcart or while vending afoot with persons in motor vehicles, other than motor vehicles which are legally parked. (12) Sell anything other than that which he is licensed to vend. (13) Employ or permit the use of artificial lighting devices on a pushcart, which would create a hazard to motorists. (14) Solicit or conduct business within 100 feet of the place of business of any merchant who sells food for immediate consumption. Sec.26-604. Standards. (a) A pushcart shall be no larger than four feet wide, five feet long, and four feet tall, excluding a shade umbrella. (b) All equipment installed or stored in any part of a pushcart shall be secured in order to prevent movement during transit and to prevent detachment in an overturn or a collision. Sec. 26-605. No vested right to location. A person who operates a pushcart or vends food items afoot shall have no vested right to any location. Sec.26-606. Advertising. No advertising shall be �ermitted on any pushcart except for the posting of prices, the identification of the name of the product, and the name of the vendor. Secs.26-607--26-690. Reserved." 2. Violations of this ordinance shall be punishable by a penalty of up to $2000 and as provided by Section 1-14 of the Wichita Falls Code of Ordinances. PASSED AND APPROVED this the 3` day of November, 2009. ��� MAYO ATTEST: y Clerk �, � ORDINANCE NO. Affidavit of Publication �� �rdlnonce Oi The Gih� Qauncll E3f' �fhe �'Of Wfchita Falls, THE STATE OF TEXAS #244595 Texds, Amendiny Ar- Of e Code COUNTY OF WICHITA nantes Of ' The City Of Withfta Falls 'to Mo9ify The �CiTr's Food Establishm�nT� Regulations, ; And o�°up �To 'szo oeupo� On this 9th day of November 2009 A D... ViORtD/n8 20 9 "o, personally appeared before me, the undersigned authority Ordihance of rne Deena Orr, Sales Assistant for the Times Publishing Company Citv Council Of The City Of Wichita Falls, of Wichita Falls, publishers of the Wichita Falls Times/Record Texas, Amending qances'�Of r ° c ►Y News, a newspaper published at Wichita Falls in Wichita of w��n�fa Fa��S ro County Texas and upon being duly sworn by me on oath Add r CfiapTer 48, > > > Fees,• And EsTablish states that the attached advertisement is a true and correct Article VII1, Division WfII T ESipblish W Fees copy of advertising published in One (1) issue hereof on the ( For Food ' Vendors � And Food �grabr►Sn- following date menTs. . 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