105 CMR, § 590.008 - Compliance and Enforcement
Adopt Chapter 8 "Compliance and Enforcement" of the 2013 Food Code with the following amendments:
(A) After FC 8-103.12 Conformance
with Approved Procedures, the following section is added:
"8-103.15
Variances.
In addition to requirements set forth in FC 8-103 Variances:
(A) Any variance granted by
the board of health shall be in writing. A copy of any such variance shall,
while it is in effect, be available to the public at all reasonable hours in
the office of the clerk of the city or town, or in the office of the board of
health . Copies of all variances shall be provided to the Director upon
request.
(B) Any variance may be
subject to such qualification, revocation, suspension, or expiration as the
board of health expresses in its grant. A variance may otherwise be revoked,
modified, or suspended, in whole or in part, only after the holder thereof has
been notified in writing and has been given an opportunity to be heard in
conformity with the requirements for an order and hearing in
105 CMR
590.015."
(B) After FC 8-201.14 Contents of
a HACCP Plan, the following section is added:
"8-201.20
Plan Approval or
Disapproval.
In addition to requirements set forth in FC 8-201 Facility and Operating Plans:
Plan approval shall be granted or denied within 30 calendar
days after the submission of said plans. If the
(C)
In FC 8-303.20
Existing Establishments, Permit Renewal, and Change of Ownership,
the entire text is stricken and replaced by the following:
"8-303.20
Existing Establishments,
Permit Renewal, and Change of Ownership.
(A)
Copies of
Permit. The permit shall be made out in duplicate. One copy shall
be given to the applicant, and a paper or electronic copy shall be placed on
file with the board of health .
(B)
Expiration and Renewal of Permit.
(1) A permit shall expire no later than one
year from the date issued.
(2) An
annual food establishment permit may be renewed by applying at least 30 days
prior to the expiration of the permit on a form provided by the FC-regulatory
authority .
(C)
Conditions for Issuance. The board of health may renew
a permit for an existing food establishment or may issue a permit to a new
owner of an existing food establishment after a properly completed application
is submitted, reviewed, and approved, the fees are paid, and an inspection
shows that the establishment is in compliance with
105 CMR 590.000. In the
case of a renewal application, the inspection must have been conducted within
the time interval established by the board of health pursuant to
8-401.10.
(D)
Refusal
to Issue a Permit: Grounds and Notice of Refusal. The board of
health may refuse to issue a permit, initial or renewal, based on one or more
of the following grounds. Each of the following grounds individually or
severally shall constitute full and adequate grounds to refuse to issue a
permit. The notice of refusal shall provide the grounds upon which the denial
is based and shall notify the applicant of the right to a hearing provided in
105 CMR
590.015(B).
(1) Failure to submit a permit application in
accordance with the board of health 's procedures;
(2) Failure to submit the required permit
fee;
(3) Denial of entry of agents
of the board of health or the Department or any attempt to impede the work of a
duly authorized agent of the board of health or the Department ;
(4) Providing false or misleading statements
to the board of health or the Department ;
(5) The applicant or owner operated the
facility without a permit;
(6) The
applicant or owner, or if the applicant or owner is a corporation, a corporate
officer, of the facility, has been convicted of, plead guilty or no lo
contendere to, or has, in a judicial proceeding, admitted facts
sufficient to find that the individual is guilty of a crime relating to the
processing, storage, distribution or sale of food in connection with the
business;
(7) The applicant or
owner, or if the applicant or owner is a corporation, a corporate officer, of
the facility has engaged in conduct that endangers the public health;
(8) Failure to pay any federal, state, or
local taxes as required by law, pursuant to M.G.L. c. 62C, §
49A;
(9) Failure to comply with
local regulations/ordinances related to the operation of the
facility;
(10) Failure to comply
with provisions of
105 CMR 590.000;
and
(11) Such other reasons not
stated in FC 8-303.20(D)(1) through (10), which pose a risk to public health
and safety."
(D) In FC 8-304.10
Responsibilities of the Regulatory Authority
, the entire text is
stricken and replaced by the following:
"8-304.10
Responsibilities of the
FC-regulatory Authority
(A) At the time
a permit is first issued, the FC-regulatory authority shall provide to the
permit holder instructions on how to obtain
105 CMR 590.000 so that the
permit holder is notified of the compliance requirements and the conditions of
retention, as specified under 8-304.11, that are applicable to the
permit.
(B) Failure to provide the
information specified in this section does not prevent the FC-regulatory
authority from taking authorized action or seeking remedies if the permit
holder fails to comply with
105 CMR 590.000 or an
order, warning, or directive of the FC-regulatory authority ."
(E) After
FC 8-304.11 Responsibilities of the Permit Holder, the
following section is added:
"8-304.15
Notification of Changes.
In addition to requirements set forth in FC 8-304.11 Responsibilities of the Permit Holder, the permit holder shall:
(A) Notify the board of health within 48
hours after any change in ownership, and at least 30 days prior to any change
of the name, location of the food establishment or addition of a new operation
and shall promptly submit to the board of health an application for a new or
amended permit, together with written documentation reflecting such
change.
(B) Submit plans in
accordance with FC 8-2 Plan Submission and Approval any time an establishment
is being remodeled or a new operation added and shall promptly submit to the
board of health an application if a new or amended permit is
required."
(F) After FC 8-304.20 Permits not
Transferable, the following section is added:
"8-304.25
Permit Form.
In addition to the requirements set forth in FC 8-3 Permit to Operate:
(A) There shall be one permit
form issued to each food establishment . The permit shall indicate:
(1) Whether the permit is annual,
semi-annual, seasonal or temporary; and
(2) Each of the following operations
permitted:
(a) Food Service
(i.e., handling of unpackaged or exposed food intended for
individual service such as sit-down and take-out operations in restaurants,
sandwich operations in retail markets and convenience stores, coffee and pastry
shops, institutional kitchens);
(b)
Retail Food (i.e., handling of pre-packaged foods or the
handling of unpackaged or exposed food not intended for individual service such
as retail grocery and convenience stores which sell pre-packaged foods, seafood
and meat markets, bakeries and bulk deli operations);
(c) Residential kitchen for retail sale;
cottage foods;
(d) Residential
kitchen for bed-and-breakfast;
(e)
Mobile/Pushcart;
(f) Temporary food
establishment ;
(g) Caterer ;
and/or
(h) Other as described on
application.
(B) The permit shall state:
(1) The name and address of the food
establishment ;
(2) The name of the
permit holder;
(3) The date of
expiration; and
(4) Any
restrictions on the type of operations allowed."
(G) After FC 8-304.25
Permit Form, the following sections are added:
8-304.30
Permit for Nonprofit
Distribution.
Pursuant to M.G.L. c. 94, § 328, a nonprofit entity that
distributes or serves food without charge or at a charge sufficient to cover
the cost of handling the food may not be charged a fee for their
8-304.35
Pot Luck Events.
A valid permit to operate is not required when a potluck event meets all of the requirements of M.G.L. c. 94, § 328A, including that participants at the event must be informed that neither the food nor the facilities have been inspected by the state or by a local public health agency.
(H) In
FC 8-401.10 Establishing Inspection Interval,
Subparagraph (B)(2) is stricken and replaced by the following:
"(2) The food establishment is assigned a
less frequent inspection frequency based on a written risk-based inspection
schedule approved by the Department that is being uniformly applied throughout
the jurisdiction and at least once every six months the establishment is
contacted by telephone or other means by the FC-regulatory authority to ensure
that the establishment manager and the nature of food operation are not
changed; provided, however, that the FC-regulatory authority may not increase
the interval between inspections beyond six months for any school kitchen ;
or"
(I) In
FC 8-402.10 Competency of Inspectors, the following
Paragraphs (C) and (D) are added:
"(C) Any
person conducting food inspections for the board of health shall be
knowledgeable in food borne disease prevention, application of the hazard
analysis critical control point principles, and the requirements of
105 CMR 590.000 as they
relate to food establishments in their city or town.
(D) Any individual conducting food
inspections shall demonstrate the knowledge referenced in this section by:
(1) Passing a certified food protection
manager or certified food safety professional test that is part of an
accredited program recognized by the Department and completing food safety
inspection training as specified in administrative guidelines of the
Department ; or
(2) Being a
registered sanitarian, a registered environmental health specialist, or a
certified health officer who has completed food safety inspection training as
specified in administrative guidelines of the Department ."
(J) In FC 8-402.11
Allowed at Reasonable Times after Due Notice, the entire text is
stricken and replaced by the following:
"8-402.11
Allowed at Reasonable Times
after Due Notice.
No prior notice of an inspection is required so long as the
(K) In FC 8-403.10
Documenting Information and Observations, the entire text is
stricken and replaced by the following:
"8-403.10
Documenting Information and
Observations.
(A) Whenever an
inspection of a food establishment is made, the findings shall be recorded on a
printed or electronic inspection report form, which shall summarize the
requirements of
105 CMR 590.000 and the
2013 Food Code. A prototype of an inspection form, which meets
the requirements of FC 8-403.10 may be obtained from the Department . A board of
health may use this form or, subject to approval by the Department , any form
consistent with this prototype. Each board of health shall submit the form it
adopts to the Department .
(B) If an
inspection reveals that a food establishment does not comply with
105 CMR 590.000, the board
of health or its agent shall notify the permit holder or person in charge of
the violations and shall order the permit holder to correct the violations. The
inspection report may, if so stated, constitute an order to correct, or the
board of health or its authorized agent may issue a separate order. An order to
correct shall include, but need not be limited to the following:
(1) Administrative information about the food
establishment and the inspection including, but not limited to:
(a) The food establishment 's legal identity,
street and mailing addresses, permit holder's name and address, type of
establishment and operation as specified under FC 8-302.14(C), inspection date,
type of inspection and other information such as type of water supply and
sewage disposal, status of the permit, and personnel certificates that may be
required;
(b) The name of the
inspector;
(c) The date and time of
the inspection;
(d) The time frame
for correction of the violations as specified under FC 8-404.11, 8-405.11, and
8-406.11;
(e) The signature of a
member of the board of health or its agent; and
(f) The signature of the person in charge of
the food establishment at the time of the inspection, or other proof of service
of the order.
(2)
Specific factual observations of violative conditions or other deviations from
105 CMR 590.000, that
require correction by the permit holder, including, but not limited, to:
(a) Nonconformance with specific provisions
of
105 CMR 590.000;
(b) Failure of the person in charge to
demonstrate the knowledge of foodborne illness prevention, application of HACCP
principles, and the requirements of the 2013 Food Code as
specified in FC 2-102.11;
(c)
Failure of food employees and the person in charge to demonstrate their
knowledge of their responsibility to report a disease or medical condition as
specified in FC 2-201.11;
(d)
Failure of the appropriate food employees to demonstrate their knowledge of,
and ability to perform in accordance with, the procedural, monitoring,
verification, and corrective action practices required by the FC-regulatory
authority as specified under FC 8-103.12;
(e) Failure of the person in charge to
provide records required by the FC-regulatory authority for determining
conformance with a HACCP plan as specified under FC 8-201.14;
(f) Nonconformance with critical limits of a
HACCP plan; and
(g) A determination
by the inspector whether any of the violations create an imminent health
hazard.
(3) A statement
that the order when signed constitutes an order of the board of health to
correct any violations of
105 CMR 590.000 that are
indicated on the order within the time periods designated. It shall be within
the discretion of the board of health whether the order shall be signed by the
board of health or its agent.
(4) A
statement that failure to comply with any time limits for correction may result
in suspension or revocation of the food establishment permit and cessation of
food establishment operations.
(5)
A statement informing the permit holder of his right to a hearing before the
board of health , his responsibility to request the hearing in writing within
ten days of receipt of the notice, and the address of the board of
health .
(C) The
FC-regulatory authority shall track the results of each school kitchen
inspection and investigation, including any violations and steps to remediate
the violations, pursuant to M.G.L. c. 111, § 223(g)."
(L) In FC 8-403.50 Public
Information, the entire text is stricken and replaced by the following:
"8-403.50
Public Information
All reports and information collected or received by the
(M) After
FC 8-405.20 Verification and Documentation of
Correction, the following section is added:
"8-405.25
Food Safety Training
The
(N) After FC 8-501.20 Restriction
or Exclusion of Food Employee, or Summary Suspension of Permit,
the following section is added:
" 8-501.25
Department Notification/Investigation and Control.
In addition to requirements in FC 8-501.10 and FC 8-501.20, the
(A) Immediately
notify the Department of all confirmed and suspected foodborne illness
outbreaks within 24 hours on a form provided by the Department and shall keep
the Department informed until the investigation has been completed;
and
(B) Take any other action
required by
105 CMR 300.000:
Reportable Diseases and Isolation and Quarantine Requirements
except that FC 8-501.10 shall supersede the Minimum Period of Isolation of
Patient established for E. coli O157:H7 and Shigella in
105 CMR
300.200: Isolation and Quarantine
Requirements."
(O) In FC 8-501.40 Removal of
Exclusions and Restrictions, the entire text is stricken and
replaced by the following:
"8-501.40
Removal of Exclusions and Restrictions
The
(A) A food employee who was infected with
typhoid fever if the food employee 's stools are negative for typhoid fever
based on testing of at least three consecutive stool specimen cultures that are
taken:
(1) Not earlier than one month after
onset;
(2) At least 48 hours after
discontinuance of antibiotics;
(3)
At least 48 hours apart.
(B) If one of the cultures taken as specified
in 8-501.40(A) is positive, repeat cultures are taken at intervals of one month
until at least three consecutive negative stool specimen cultures are
obtained.
(C) A food employee who
was infected with Shigella spp. or Shiga Toxin-producing Escherichia
coli if the employee's stools are negative for Shigella spp. or Shiga
Toxin-producing E. coli based on testing of two consecutive
stool specimen cultures that are taken:
(1)
Not earlier than 48 hours after discontinuance of antibiotics; and
(2) At least 24 hours apart.
(D) A food employee who was
infected with hepatitis A virus if:
(1) The
food employee is no longer febrile; or
(2) It has been at least one week since the
onset of symptoms."
Notes
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