Senate Bill No. 61
Introduced By keating
By Request of the Department of Public Health and Human Services
A Bill for an Act entitled: "An Act generally revising the laws relating to food establishments; granting local boards of health the power to adopt plan review fees; clarifying and adding definitions associated with food establishments; revising the department of public health and human services' rulemaking authority; clarifying civil penalties associated with civil actions; providing for validation and expiration of licenses and a schedule of fees; providing for a voluntary food manager certification program, including fees; providing for food establishment plan review and fees; granting immediate closure authority for and defining "critical point violations"; providing for enforcement methods and civil and administrative penalties; amending sections 50-2-116, 50-50-102, 50-50-103, 50-50-109, 50-50-201, 50-50-205, and 50-50-207, MCA; and providing effective dates and a retroactive applicability date."
STATEMENT OF INTENT
A statement of intent is required for this bill because additional rulemaking authority, beyond that granted by 50-50-103, is being granted to the department of public health and human services. This rulemaking authority will allow the department to adopt rules to protect the public health by adopting requirements for food establishments in the following areas:
(1) safe and sanitary facilities and systems;
(2) fire codes, life safety codes, and building codes;
(3) prevention of injury and the spread of disease;
(4) operation and maintenance in a safe and sanitary manner;
(5) food coverage, handling, processing, equipment, and utensils;
(6) licensure and establishment of a schedule of license fees;
(7) implementation of staggered license expiration dates;
(8) establishment of a voluntary food manager certification program, including course fees;
(9) plan review and the establishment of plan review fees;
(10) reimbursement of local governments for inspections and enforcement;
(11) establishment of critical point violations; and
(12) other rules necessary to implement the provisions of Title 50, chapter 50.
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 50-2-116, MCA, is amended to read:
"50-2-116. Powers and duties of local boards. (1) Local boards shall:
(a) appoint a local health officer who is a physician or a person with a master's degree in public health or the equivalent and with appropriate experience, as determined by the department, and shall fix the health officer's salary;
(b) elect a presiding officer and other necessary officers;
(c) employ necessary qualified staff;
(d) adopt bylaws to govern meetings;
(e) hold regular meetings quarterly and hold special meetings as necessary;
(f) supervise destruction and removal of all sources of filth that cause disease;
(g) guard against the introduction of communicable disease;
(h) supervise inspections of public establishments for sanitary conditions;
(i) subject to the provisions of 50-2-130, adopt necessary regulations that are not less stringent than state standards for the control and disposal of sewage from private and public buildings that is not regulated by Title 75, chapter 6, or Title 76, chapter 4. The regulations must describe standards for granting variances from the minimum requirements that are identical to standards promulgated by the board of environmental review and must provide for appeal of variance decisions to the department as required by 75-5-305.
(2) Local boards may:
(a) quarantine persons who have communicable diseases;
(b) require isolation of persons or things that are infected with communicable diseases;
(c) furnish treatment for persons who have communicable diseases;
(d) prohibit the use of places that are infected with communicable diseases;
(e) require and provide means for disinfecting places that are infected with communicable diseases;
(f) accept and spend funds received from a federal agency, the state, a school district, or other persons;
(g) contract with another local board for all or a part of local health services;
(h) reimburse local health officers for necessary expenses incurred in official duties;
(i) abate nuisances affecting public health and safety or bring action necessary to restrain the violation of public health laws or rules;
(j) adopt necessary fees to administer regulations for the control and disposal of sewage from private and public buildings. The fees must be deposited with the county treasurer.
(k) adopt rules that do not conflict with rules adopted by the department:
(i) for the control of communicable diseases;
(ii) for the removal of filth that might cause disease or adversely affect public health;
(iii) subject to the provisions of 50-2-130, on sanitation in public buildings that affects public health;
(iv) for heating, ventilation, water supply, and waste disposal in public accommodations that might endanger human lives;
(v) subject to the provisions of 50-2-130, for the maintenance of sewage treatment systems that do not discharge an effluent directly into state waters and that are not required to have an operating permit as required by rules adopted under 75-5-401; and
(vi) for the regulation, as necessary, of the practice of tattooing, which may include registering tattoo artists, inspecting tattoo establishments, adopting fees, and also adopting sanitation standards that are not less stringent than standards adopted by the department pursuant to 50-1-202. For the purposes of this subsection, "tattoo" means making permanent marks on the skin by puncturing the skin and inserting indelible colors.
(l) adopt plan review fees for establishments regulated under Title 50, chapter 50, that do not exceed the actual costs of conducting the review."
Section 2. Section 50-50-102, MCA, is amended to read:
"50-50-102. Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:
(1) "Baked goods" means breads, cakes, candies, cookies, pastries, and pies that are not potentially hazardous foods.
(2) (a) "Commercial establishment" means an establishment operated primarily for profit.
(b) The term does not include a farmer's market.
(3) "Critical point violation" means a violation of this chapter or rules promulgated under this chapter that is more likely than other violations to pose an immediate threat to the public health, safety, or welfare or to the environment.
(3)(4) "Department" means the department of public health and human services provided for in 2-15-2201. (4)(5) (a) "Establishment" means an operation that stores, prepares, processes, manufactures, packages, serves, vends, or
otherwise provides food for human consumption and includes a food manufacturing establishment, meat market, food
service establishment, food warehouse, frozen food plant, commercial food processor, or perishable food dealer, or food
(b) The term does not include vendors of only raw, unprocessed produce.
(5)(6) "Farmer's market" means a farm premises, a roadside stand owned and operated by a farmer, or an organized market
authorized by the appropriate municipal or county authority. (6)(7) "Food" means an edible substance, beverage, or ingredient used, intended for use, or for sale for human
(8) "Food manager" means a person who maintains, manages, owns, or is in charge of an establishment.
(7)(9) "Food manufacturing establishment" means a commercial establishment and buildings or, structures, or vehicles in
connection with it used to manufacture or, process, prepare, or deliver food for sale or human consumption, but does not
include milk producers' facilities, milk pasteurization facilities, milk product manufacturing plants, slaughterhouses, or
meat packing plants.
(10) (a) "Food salvage dealer" means an establishment that repackages food for distribution or sale to the public or that offers salvaged foods to the public for sale or human consumption.
(b) The term does not include nonprofit food banks.
(8)(11) (a) "Food service establishment" means a place where food or drink is prepared, served, or provided to the public,
with or without charge, and includes the following types of operations: fixed or mobile restaurant, coffee shop, cafeteria,
short-order cafe, luncheonette, grille, tearoom, sandwich shop, soda fountain, food store serving food or beverage samples,
food or drink vending machine, tavern, bar, cocktail lounge, nightclub, industrial feeding establishment, catering kitchen,
commissary, or private organization routinely serving the public , or similar place where food or drink is prepared, served,
or provided to the public with or without charge.
(b) The term does not include:
(i) establishments, vendors, or vending machines that sell or serve only packaged, nonperishable foods in their unbroken, original containers;
(ii) vending machines that sell or serve bulk, nonperishable foods; or
(iii) a private organization serving food only to its members.
(9)(12) (a) "Food warehouse" means a commercial establishment and buildings or structures in connection with it used to
store food, drugs, or cosmetics for distribution to retail outlets.
(b) The term does not include a wine, beer, or soft drink warehouse that is separate from facilities where brewing occurs.
(10)(13) "Frozen food plant" means a place used to freeze, process, or store food, including facilities used in conjunction
with the frozen food plant, and a place where individual compartments are offered to the public on a rental or other basis. (11)(14) (a) "Meat market" means a commercial establishment and buildings or structures in connection with it used to
process, store, or display meat or meat products for sale to the public or for human consumption.
(b) The term does not include custom cutters or wild game processors who cut and wrap customer-provided meat for the same customer.
(12)(15) "Nonprofit organization" means any organization qualifying as a tax-exempt organization under 26 U.S.C. 501. (13)(16) "Perishable food dealer" means a person or commercial establishment that is in the business of purchasing and
selling retailing perishable food to the public. (14)(17) "Person" means a person, partnership, corporation, association, cooperative group, or other entity engaged in
operating, owning, or offering services of an establishment. (15)(18) (a) "Potentially hazardous food" means a food that is natural or synthetic and is in a form capable of supporting:
(i) the rapid and progressive growth of infectious or toxigenic microorganisms; or
(ii) the growth and toxin production of Clostridium botulinum.
(b) The term includes cut melons, garlic and oil mixtures, a food of animal origin that is raw or heat-treated, and a food of plant origin that is heat-treated or consists of raw seed sprouts.
(c) The term does not include:
(i) an air-cooled, hard-boiled egg with intact shell;
(ii) a food with a hydrogen ion concentration (pH) level of 4.6 or below when measured at 24C (75F);
(iii) a food with a water activity (aw) value of 0.85 or less;
(iv) a food in an unopened hermetically sealed container that is commercially processed to achieve and maintain commercial sterility under conditions of nonrefrigerated storage and distribution; or
(v) a food for which laboratory evidence is accepted by the department as demonstrating that rapid and progressive growth of infectious and toxigenic microorganisms or the slower growth of Clostridium botulinum cannot occur.
(16)(19) (a) "Preserves" means processed fruit or berry jams, jellies, compotes, fruit butters, marmalades, chutneys, fruit
aspics, fruit syrups, or similar products that have a hydrogen ion concentration (pH) of 4.6 or below when measured at
24C (75F) and that are aseptically processed, packaged, and sealed.
(b) The term does not include:
(i) tomatoes or food products containing tomatoes; or
(ii) any other food substrate or product preserved by any method other than that described in subsection
(16)(a) (19)(a). (17)(20) "Raw and unprocessed farm products" means fruits, vegetables, and grains sold at a farmer's market in their
natural state that are not packaged and labeled and are not:
(c) preserved, except for drying;
(d) combined with other food products; or
(e) peeled, diced, cut, blanched, or otherwise subjected to value-adding procedures."
Section 3. Section 50-50-103, MCA, is amended to read:
"50-50-103. Department authorized to adopt rules. (1) To protect public health, the department may adopt rules
relating to the construction and operation of establishments defined in 50-50-102
, including coverage of food, personnel,
food equipment and utensils, sanitary facilities and controls, construction and fixtures, and housekeeping. The rules may
include the following:
(a) requirements to ensure that establishments have safe and sanitary facilities and systems, including drinking water, sewage disposal, and solid waste disposal systems;
(b) requirements to prevent injury and the spread of disease and illness in establishments;
(c) requirements to ensure that establishments are operated and maintained in a safe and sanitary manner;
(d) requirements associated with food coverage, handling, processing, equipment, and utensils;
(e) requirements for licensing of establishments and establishing a schedule of license fees based on the aggregate statewide costs of licensing and regulating establishments. The license fees may include a minimal base fee related to the fixed costs of inspecting, licensing, and regulating establishments and may include costs based on the risk to public health posed by the particular establishment, the capacity of the establishment, the complexity of the establishment operation or operations, and other relevant factors;
(f) requirements to implement staggered license expiration dates;
(g) requirements to establish a voluntary food manager certification program and to set course fees that do not exceed actual costs;
(h) requirements for plan review of establishments based on the size and complexity of the proposed establishment, the type of water and sewage disposal to service the establishment, the type and magnitude of remodeling efforts, the type of food product and process, and other relevant factors and setting plan review fees that do not exceed the actual costs of conducting the review;
(i) requirements for reimbursing local governments for inspections and enforcement of this chapter;
(j) requirements to establish critical point violations; and
(k) any other rules necessary to implement the provisions of this chapter.
(2) (a) The department and local health authorities may not adopt rules prohibiting the sale of baked goods and preserves by nonprofit organizations or by persons at farmer's markets.
(b) The department and local health authorities may not require that foods sold pursuant to this subsection (2) be prepared in certified or commercial kitchens."
Section 4. Section 50-50-109, MCA, is amended to read:
"50-50-109. Civil penalties --
injunctions other enforcement not barred. (1) An establishment that violates this chapter
or rules adopted by the department pursuant to this chapter is subject to a civil penalty not to exceed $500 for each
violation. Each day of violation is a separate violation for the purposes of this section.
Civil A civil action to impose penalties, as provided under this section, does not bar administrative enforcement under
[section 11], administrative penalties under [section 12], or injunctions to enforce compliance with this chapter or to
enforce compliance with a rule adopted by the department pursuant to this chapter."
Section 5. Section 50-50-201, MCA, is amended to read:
"50-50-201. License required. (1) Except as provided in 50-50-202, a person operating an establishment shall procure an annual license from the department.
(2) A separate license is required for each establishment, but if more than one type of establishment is operated on the same premises and under the same management, only one license is required.
(3) Only one license is required for a person owning and operating one or more vending machines.
Before a license may be issued by the department it must be validated by the local health officer, or if there is no local
health officer the sanitarian, in the county where the establishment is located. A license issued by the department is not
valid unless signed in accordance with 50-50-214."
Section 6. Section 50-50-205, MCA, is amended to read:
"50-50-205. License fee -- late fee -- preemption of local authority -- exception. (1) For each license issued, the
department shall collect a fee of $60 or a fee that is adopted by an administrative rule that provides a schedule of fees that is
based on the aggregate statewide costs of licensing and regulating establishments.
It The department shall deposit 85% of
the fees collected under this section into the local board inspection fund account created in 50-2-108, 7.5% of the fees into
the general fund, and 7.5% of the fees into the special revenue account provided for in 50-50-216.
(2) In addition to the license fee required under subsection (1), the department shall collect a late fee from any licensee
who has failed to submit a license renewal fee prior to the expiration of
his the licensee's current license and who operates
an establishment governed by this part in the next licensing year. The late fee is $25 and must be deposited in the special
revenue account provided for in 50-50-216.
(3) A county or other local government may not impose an inspection fee or charge in addition to the fee provided for in subsection (1) unless a violation of this chapter or rule persists and is not corrected after two visits to the establishment."
Section 7. Section 50-50-207, MCA, is amended to read:
"50-50-207. Expiration date of license.
Licenses expire (1) Except as provided in subsection (2), each license expires on
December 31 following the date of issue unless canceled for cause.
(2) The department may amend or issue licenses to provide for staggered license expiration dates. The department may provide for initial license terms of greater than 12 months but no more than 23 months in adopting staggered license expiration dates, and the license fee must be prorated accordingly. Upon expiration of a license that has been amended or issued to provide a term of greater than 12 months and subsequent payment of the required license fee, the license must be renewed for a period of 12 months commencing on the day following the expiration date of the amended or issued license."
NEW SECTION. Section 8. Voluntary food manager certification program -- fees. The department may establish and set fees for a voluntary food manager certification program for training and certifying food managers. All of the fees collected under this section must be deposited in the special revenue account provided for in 50-50-216 and may be used only for the purposes of implementing and administering the voluntary food manager certification program.
NEW SECTION. Section 9. Plan review -- fees. (1) Whenever an establishment is constructed or remodeled, an existing structure is converted to use as an establishment, or an existing establishment adds a new type of operation different from the operation for which plans were initially submitted to and approved by the department, the plans must be submitted to the department for review and approval before construction, remodeling, conversion, or addition for the new operation begins. The department may establish plan review fees that do not exceed the actual costs to the department in conducting establishment plan review. If the department conducts the plan review, the plan review fees established by the department must be charged.
(2) The department may delegate to a local health department the authority to conduct an establishment plan review under this chapter when the local health department has qualified personnel to adequately review the plans for compliance with department rules and this chapter. The local health department may establish plan review fees that do not exceed the actual costs to the local health department in conducting establishment plan reviews. If the local health department conducts the plan review, the plan review fees established by the local health department must be charged.
(3) If the department conducts the establishment plan review, all of the fees collected under subsection (1) must be deposited in the special revenue account provided for in 50-50-216.
(4) If the local health department conducts the establishment plan review in compliance with the department's rules, all of the fees collected under subsection (2) must be deposited in an account designated by the local health department.
NEW SECTION. Section 10. Critical point violations -- closure order -- hearing. (1) Notwithstanding other provisions of this chapter, the department may issue a closure order to an establishment to close immediately if a critical point violation is found at the establishment. The order is effective immediately upon receipt by the person to whom it is directed, unless the department provides otherwise.
(2) Notice of the order must indicate that it is a closure order, must specify the critical point violation that presents the immediate threat, and must contain a written statement of the facts constituting the violation.
(3) Upon issuing an order, the department shall fix a place and time for a hearing, not later than 5 working days after issuing the order, unless the person to whom the order is directed requests a later time. The department may deny a request for a later time if it finds that the person to whom the order is directed is not complying with the order. The hearing must be conducted in the manner specified in [section 11].
(4) After a hearing held pursuant to subsection (3), if the department finds that a critical point violation has occurred, the department shall issue an appropriate order in the manner specified in [section 11]. Within 5 working days after the hearing, the department shall affirm, modify, or set aside the order of the department. An action for review of the order may be initiated using the contested case provisions of the Montana Administrative Procedure Act, as provided in Title 2, chapter 4, part 6. If a hearing is held under this section, it must be held in Lewis and Clark County or the county in which the alleged violation occurred.
(5) Until issuance of a contrary decision by the department, an order concerning immediate closure remains effective and enforceable.
NEW SECTION. Section 11. Administrative enforcement -- notice of violation -- hearing. (1) If the department believes that a violation of a provision of this chapter, a rule adopted pursuant to this chapter, an order issued pursuant to this chapter, or a condition or limitation imposed by a license issued pursuant to this chapter has occurred, it may serve a written notice of the violation on the alleged violator or the violator's agent personally or by certified mail. The notice must specify the statute, rule, order, or license condition or limitation alleged to have been violated and the facts alleged to constitute the violation. The notice may include an order to take necessary corrective action, including ceasing the violation within a period of time stated in the order. The order becomes final unless, within 10 days after the notice is received, the person named as the respondent in the order requests in writing a hearing before the department. Until issuance of a contrary decision by the department, an order issued pursuant to this section remains effective and enforceable.
(2) A hearing requested by the respondent must be held in accordance with the contested case provisions of the Montana Administrative Procedure Act, as provided in Title 2, chapter 4, part 6. If, after a hearing, the department finds that a violation has occurred, the department shall issue an appropriate order for the prevention, abatement, or control of the violation involved or the taking of other corrective action. An order issued as part of a notice of violation or after a hearing may prescribe the date by which the violation must cease and the time limits for a particular action in preventing, abating, or controlling the violation. If, after a hearing, the department finds that a violation has not occurred or is not occurring, the department shall declare the order void.
(3) Instead of or in addition to issuing the order provided in subsections (1) and (2), the department may take action under another applicable provision of this chapter.
(4) Section 50-50-210 does not apply to an action taken by the department pursuant to this section.
NEW SECTION. Section 12. Administrative penalties -- appeals -- venue for hearing. (1) An establishment that violates an order issued by the department pursuant to [section 10 or 11] may be assessed and ordered by the department to pay an administrative penalty not to exceed $200 for each violation. Each day of violation constitutes a separate violation. The department or may assess the penalty by an order issued pursuant to this section or may suspend all or a part of the administrative penalty assessed under this section if the violation that caused the assessment of the penalty is corrected within a specified time. Assessment of an administrative penalty under this section may be made in conjunction with an order issued pursuant to [section 11(2)] after a hearing as provided in [section 11(2)].
(2) When the department assesses an administrative penalty under this section, it must have written notice served personally or by certified mail on the alleged violator or the violator's agent. For purposes of this chapter, service by mail is complete on the day of receipt. The notice must state:
(a) the order alleged to have been violated;
(b) the facts alleged to constitute the violation;
(c) the amount of the administrative penalty assessed under this section;
(d) the amount, if any, of the penalty to be suspended upon correction of the condition that caused the assessment of the penalty;
(e) the nature of any corrective action that the department requires if a portion of the penalty is to be suspended;
(f) the time within which the corrective action is to be taken or the time within which the administrative penalty is to be paid;
(g) the right to a hearing, as provided in this section, and the time, place, and nature of any hearing; and
(h) that the hearing provided in this section may be waived or that the alleged violator may proceed by informal disposition pursuant to 2-4-603.
(3) The department shall provide the respondent who is assessed a penalty under this section with an opportunity for a hearing to either contest the alleged violation or request mitigation of the penalty. The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing conducted under this section. If a hearing is held under this section, it must be held in Lewis and Clark County or the county in which the alleged violation occurred.
(4) In determining appropriate penalties for violations, the department shall consider the gravity of the violations and the potential for significant harm to the public health or safety. In determining the appropriate amount of penalty, if any, to be suspended upon correction of the condition that caused the penalty assessment, the department shall consider the cooperation and the degree of care exercised by the respondent who is assessed the penalty, how expeditiously the violation was corrected, and whether significant harm resulted to the public health or safety from the violation.
(5) If the respondent fails to pay all or part of an administrative penalty assessed pursuant to this section, the department may take action in district court to recover the amount of the penalty that is unpaid and any additional amounts assessed or sought under this chapter.
(6) Action taken by the department pursuant to this section does not bar other action under this chapter or any other remedy available to the department for violations of applicable laws or rules adopted pursuant to those laws.
(7) Administrative penalties collected under this section must be deposited in the special revenue account provided for in 50-50-216.
NEW SECTION. Section 13. Codification instruction. [Sections 8 through 12] are intended to be codified as an integral part of Title 50, chapter 50, and the provisions of Title 50, chapter 50, apply to [sections 8 through 12].
NEW SECTION. Section 14. Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to licenses issued pursuant to Title 50, chapter 50, prior to October 1, 1997.
NEW SECTION. Section 15. Effective dates. (1) [Sections 1, 3, 13, and 14 and this section] are effective on passage and approval.
(2) [Sections 2 and 4 through 12] are effective October 1, 1997.