Chapter 3. Food Handling

Article 1. General Provisions

Sec. 5-3.101 Definitions.

For the purposes of this Chapter, certain words and phrases are defined as follows:

(a) “Employee” means any person who, with or without pay, works or handles food in a food-handling establishment or who offers food for sale.

(b) “Food” includes all articles used for food, drink, confectionery, or condiment, whether simple or compound, and all substances and ingredients used in the preparation thereof.

(c) “Food handling establishment” includes restaurants and food selling and processing establishments, except that the provisions of this Chapter shall not apply to meat, milk, and poultry processing establishments, frozen food lockers, canneries and slaughter houses inspected by Federal or State agencies, nor to such other plants and establishments for the packing, treatment and processing of agricultural products and crops of all kinds, including, but not limited to, plants or establishments for the packing, treating, canning, freezing, dehydrating and other processing and packaging of agricultural products and crops, and the manufacturing or other processing of byproducts therefrom, where such plants or establishments, or the products thereof, are subject to inspection by Federal or State agencies, to insure that such products are in a sanitary condition and suitable for human consumption and which do not sell or deliver directly to the ultimate consumer.

(d) “Food selling and processing establishment” means any room, building, vehicle, facility, structure, or place or portion thereof, whether stationary, movable, permanent or temporary, which is maintained, used or operated for the purpose of commercially selling, storing, packaging, transporting, making, cooking, mixing, processing, bottling, canning, packing, slaughtering or otherwise preparing or handling food, or vendors servicing vending machines handling unwrapped, unbottled or unpackaged or readily perishable food. This definition shall not include restaurants, tank trucks, fresh produce trucks, farm trucks, or vehicles delivering only nonperishable food products in sealed, wrapped or bottled containers, or vending machines dispensing only bottled beverages or wrapped candy.

(e) “Health Officer,” unless otherwise modified, means the Health Officer of the City of Hercules, his medical deputies, his sanitarians, or his duly authorized representatives.

(f) “Itinerant food-handling establishment” means one which operates for a temporary period in connection with a fair, carnival, circus, public exhibition or other similar gathering.

(g) “Restaurant” means any restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, tavern, sandwich stand, soda fountain, vehicle and any other eating or drinking establishment which sells or offers food or drink for sale to the public, as well as kitchens in which food or drink is prepared on the premises for sale or distribution elsewhere.

(h) “Utensils” includes kitchenware, tableware, glassware, cutlery, containers, machinery, implements, receptacles, supplies or other equipment used for the storage, preparation, distribution or serving of food or drink.

(i) “Expanded polystyrene” means and includes blown polystyrene and expanded and extruded foams (commonly and often incorrectly called Styrofoam®, a Dow Chemical Co. trademarked form of polystyrene foam insulation) that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expanded bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene). For the purposes of this Chapter, the term “polystyrene” shall not include clear polystyrene known as “oriented polystyrene.”

(j) “Nonprofit food provider” means a recognized tax-exempt organization that provides food as a part of its services.

(k) “Prepared food” means food that is prepared by cooking, chopping, slicing, mixing, brewing, freezing, squeezing, or other on-site means and served on the vendor’s premises. Prepared food does not include any raw uncooked meat or eggs. Prepared food may be eaten or consumed either on or off the vendor’s premises.

(l) “Retail food vendor” means any store, shop, sales outlet, or other establishment, including a grocery store or a delicatessen, located within the City, which provides prepared food. (Ord. 436 § 1, 2008)

Sec. 5-3.102 Compliance with all Laws.

All food handling establishments shall comply with all applicable statutes, ordinances and rules and regulations of Federal, State and local agencies.

Sec. 5-3.103 Approval of Building Plans.

No permit shall be issued by any agency of the City to any person proposing the construction, reconstruction, alteration or use of any structure for use as a food handling establishment until such plans as relate to this Chapter have been approved by the Health Officer.

Sec. 5-3.104 Food Service Openings to Outdoors.

Where food service openings to the outside are used in restaurants, such openings shall have an area not exceeding two hundred seventy (270) square inches with a maximum width of eighteen (18") inches and a maximum height of fifteen (15") inches. Triangular wide base openings with a height not exceeding twenty-four (24") inches shall be permitted. Openings shall be separated by a minimum of three (3') feet. Such openings shall be closeable with a wire screen not coarser than sixteen (16) mesh when not in use. Each opening shall be further protected by overhead fans or internal positive pressure which would produce an outward air flow of at least seventy-five (75) linear feet per minute as measured by a standard velometer, or shall have a system of duct work such that the discharge of air produces such outward flow of air through the opening.

Sec. 5-3.105 Temperature Requirements; Readily Perishable Foods.

All readily perishable foods shall be maintained at forty-five degrees (45°) when in storage, on display, or in transit. Accurate Fahrenheit thermometers, suitable for measuring temperatures of food, shall be conspicuously affixed to food storage equipment, where possible, or shall be available at every establishment. Waste water from refrigeration equipment in fixed establishments shall be disposed of into an approved sanitary sewage disposal system through an indirect connection. Except for properly handled game, only food intended to be sold or served to the public shall be kept in refrigerated storage cabinets. All frozen foods shall be kept at a temperature which will keep such food in a frozen state. No food which has been thawed shall be refrozen.

Readily perishable foods shall include, but not be limited to, the following items:

(a) Custard and creme-filled pastries, both real and synthetic, prepared salads with dressing, sandwiches using mayonnaise or salad dressing in the filling, and precooked meat, poultry and fish products not hermetically sealed;

(b) Fresh meats, fresh shell fish, fresh poultry and fresh fish;

(c) All dairy products from sources not under inspection by other agencies; and

(d) Canned hams and canned picnics containing labels indicating the product must be kept under refrigeration.

Sec. 5-3.106 Keeping Live Animals.

No person shall keep live chickens, ducks, geese, turkeys or other live fowl or animals where foodstuffs are prepared for sale or sold, or in any cellar or basement underneath any grocery store, market or place where foodstuffs are kept for sale.

Sec. 5-3.107 Instruction in Food Handling.

If, at any time, a person working in any food handling establishment is found by the Health Officer to be handling food in a manner dangerous to the public health, the Health Officer shall have the authority to require such person and/or his employer to attend, free of charge, a course of instruction which shall be provided by the Health Officer, or to discontinue handling food, or both.

Sec. 5-3.108 Right of Entry.

It shall be the duty of any Health Officer or Meat Inspector, and they are hereby empowered, to enter and inspect any premises regulated by this Chapter during regular working hours.

Sec. 5-3.109 Food Service Utensils.

(a) Food Utensil Prohibitions.

(1) No restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider shall provide prepared food to its customers in any utensils made of expanded polystyrene.

(2) The City shall prohibit the use or distribution of expanded polystyrene utensils at all City facilities. The City shall not purchase or acquire expanded polystyrene utensils.

(3) The use or distribution of expanded polystyrene utensils for service of prepared food at events sponsored, co-sponsored, or approved by permit by the City is prohibited. This prohibition shall apply to the event organizers, agents of the event organizers, event retail food vendors, and any other party (including nonprofit organizations) who enter into an agreement with one or more of the co-sponsors of the event to sell or provide prepared food at the event or otherwise provide an event-related service.

(4) All facility rental agreements for any City-owned or leased property or facility shall include a provision requiring contracting parties to assume responsibility for preventing the use and distribution of expanded polystyrene utensils for service of prepared food at the associated function. The facility rental agreement shall indicate that the violating contractor’s security deposit will be forfeited if the City Manager, or his/her designee, determines that expanded polystyrene utensils were used in violation of the rental agreement.

(b)  Exceptions.

(1) Food items packaged outside the boundaries of the City are exempt from the provisions of this Section.

(2) The City Manager, or his/her designee, may exempt a restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider from the requirements of this Section for a one (1) year period, upon showing by the applicant that the conditions of this Section would cause undue hardship. The phrase “undue hardship” shall be construed to include, but not be limited to:

A. Situations where there are no acceptable alternatives to expanded polystyrene utensils for reasons which are unique to the restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider;

B. Situations where compliance with the requirements of this Section would deprive a person of a legally protected right.

(3) Coolers and ice chests made of expanded polystyrene are exempt from the provisions of this Section.

(4) Food utensils required to be purchased under a contract entered into less than one (1) year prior to the effective date of the ordinance codified in this Section are exempt from the provisions of this Section. This exemption will apply up to one year from the effective date of the ordinance codified in this Section.

(c)  Enforcement and Notice of Violations.

(1) The City Manager or his/her designee shall have primary responsibility for enforcement of this Section. The City Manager or his/her designee is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this Section, including, but not limited to, inspecting the premises of any restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider to verify compliance.

(2) Anyone violating or failing to comply with any of the requirements of this Section, or of any regulation or administrative procedure authorized by it, shall be guilty of an infraction.

(3) The City Attorney may seek legal, injunctive, or other equitable relief to enforce this Section and any regulation or administrative procedure authorized by it.

(4) The remedies and penalties provided in this Section are cumulative and not exclusive of one another.

(d) Penalties and Fines for Violations. The City Manager or his/her designee, upon determining that a violation of this Section has occurred, shall enforce this Section by issuing to the violator as follows:

(1) For a first violation, a written warning notice that specifies the violation and the appropriate penalties in the event of future violations.

(2) For the first violation following the issuance of a warning notice, a fine not exceeding one hundred dollars ($100.00).

(3) For the second and any other violation that occurs following the issuance of a warning notice, a fine not exceeding two hundred fifty dollars ($250.00).

(4) Fines are cumulative and each day that a violation occurs shall constitute a separate violation. (Ord. 436 § 2, 2008)

Article 2. Permits

Sec. 5-3.201 Permits Required.

It shall be unlawful for any person to operate a food handling establishment in the City without having a valid, unsuspended, unrevoked permit from the Health Officer, as provided in this Chapter. In any establishment having separate operations under separate management or ownership, each operation shall be required to have a separate permit. Permits shall be conditioned on compliance with all laws and regulations applicable to the subject person, premises or operation. Permits shall be issued only on written application on forms provided by the Health Officer and containing such information regarding the applicant and the premises or operation as the Health Officer deems necessary for the enforcement of this Chapter. Permits shall be dated, shall contain the name of the permit holder, and shall briefly describe or identify the licensed premises or operation.

Sec. 5-3.202 Permit Term.

Such permits shall be valid for one (1) year from date of issue, unless suspended or revoked before then.

Sec. 5-3.203 Permit Nontransferable.

Such permits shall not be transferable from one establishment, location or premises to another.

Sec. 5-3.204 Display of Permit.

Such permits shall be posted and displayed in a conspicuous place.

Sec. 5-3.205 Delivery Vehicles.

No permit is required for vehicles transporting food to foodhandling establishments.

Sec. 5-3.206 Permit Fees.

Fees as set by Resolution of the City Council are required for permits hereunder. Such fees are due and payable at the time of application for the permit or renewal thereof and if the renewal fee is not paid within thirty (30) days after due, the permit shall become void.

Sec. 5-3.207 Transfer of Establishment.

Upon the sale or transfer of an establishment, the permit therefor shall be void until a renewal application is approved. Either a fee in the amount of Two and no/100 ($2.00) Dollars shall be paid for the remainder of the license period, or a new annual permit shall be issued, at the option of the applicant. Inspection fees for operations commencing between annual billing periods shall be prorated on a monthly basis.

Sec. 5-3.208 Health Permit.

Every person working or handling food in any food handling establishment, with or without pay, shall secure a health permit from the Health Officer within thirty (30) days of first employment in the City. Such health permit shall be the negative report of the County Health Department chest x-ray or a letter from the Health Officer to the same effect. The permit shall be valid for two (2) years from the date of issuance and shall be replaced with a new permit prior to the expiration date. The permit shall be in the possession of such person during working hours and shall be readily available for inspection by the Health Officer.

Sec. 5-3.209 Employer’s Responsibility.

It shall be the duty of each manager, operator or owner of any food handling establishment to employ only persons having a valid health permit.

Sec. 5-3.210 Exemptions from Permits; Effect.

Exemptions from the permits or fees required by this Chapter shall not constitute exemptions from the sanitary requirements set forth in this Chapter.

Sec. 5-3.211 Emergency Suspension of Permit.

Whenever the Health Officer shall make a written finding that the public health is endangered by some act, omission or condition regulated by this Chapter, in connection with any premises or operations licensed pursuant to this Chapter, he may order the immediate cessation of such act, abatement of such condition, or action to correct such condition, and may order the temporary emergency suspension of the permit applicable thereto and its removal from such person or premises, and may post notice of such action in a conspicuous place on the premises. Such emergency suspension shall be in addition to, and not limited by nor in derogation of, any other authority or power which the Health Officer may have under present statutes or regulations. Such emergency suspension, as distinct from any other action authorized by law, shall be effective for a period of five (5) days including the first day upon which the permit was suspended. Any activity regulated by this Chapter shall be unlawful during the period of emergency suspension. At the end of such period, or sooner if the Health Officer finds that the public health is no longer endangered, the permit shall become valid again unless a hearing shall be ordered pursuant to the provisions of this Chapter.

Sec. 5-3.212 Temporary Suspension of Permit.

Whenever a written complaint is filed with the Health Officer that some applicable law or regulation is being violated by any person, premises or operation required to be licensed, the Health Officer may order a hearing and after hearing may suspend such permit for not more than ninety (90) days, or until he is assured of compliance with the applicable laws or regulations, whichever is less, and may post notice of such action in a conspicuous place on the licensed premises. At the end of such period, when the Health Officer is satisfied of compliance, the permit shall become valid again. Any activity regulated by this Chapter shall be unlawful during the period of suspension.

Sec. 5-3.213 Revocation.

A permit may be revoked and confiscated when it has been suspended once and violations of this Chapter or other applicable laws or regulations, or acts or omissions endangering the public health, continue, or when the Health Officer makes a written finding that correction of the situation is impracticable and that the public health is endangered thereby. The Health Officer may post notice of such action in a conspicuous place.

Sec. 5-3.214 Notice of Hearing and Hearing.

In the case of hearings under Section 5-3.211 of this Chapter, notice shall be written and delivered to the person involved or in charge of the premises or operations at least forty-eight (48) hours before the hearing. Other hearings shall be preceded by written notice, personally delivered, or mailed to the person to whom the permit was issued at the latest address on file with the Health Officer not less than five (5) days nor more than fifteen (15) days prior to the hearing date. The hearings shall be held in the City Hall unless some other location is specified in the notice. The hearings shall be conducted by the Health Officer himself or by his medical deputy in charge. Hearings shall not be continued or postponed for longer than ten (10) days from the original date without the consent of the permittee.

Sec. 5-3.215 Appeals.

Appeals may be taken from the results of any hearing to the Council by a written notice of appeal stating fully the matters or action appealed from and the grounds for the appeal. Such notice shall be filed with the City Clerk within fifteen (15) days after the action appealed from. The Council shall schedule the appeal for hearing within thirty (30) days of the filing of the notice of appeal.

Article 3. Meat, Poultry and Fish

Sec. 5-3.301 Inspection of Meat and Meat Products.

No person shall sell, have in possession, keep or expose for sale for human food the flesh of any cattle, hogs, sheep, swine, goats, calves, horses or meat products unless the same shall have been slaughtered or passed upon under the supervision of the United States Government Inspector, in accordance with the regulations relating to the inspection thereof, as prescribed by the Department of Agriculture of the State, or under the supervision of the Health Officer of the City or County in accordance with the provisions of this Article.

Sec. 5-3.302 Brand of Approval.

No person shall sell, have in possession, keep or expose for sale the flesh of cattle, hogs, calves, horses, sheep or goats, or any meat product, unless there has been placed on each primal part thereof, or on such meat products, a brand of approval of either the Bureau of Agriculture or of an authorized inspector whose brand or mark of identification is acceptable to and has been approved by the Health Department of the County.

Sec. 5-3.303 Itinerant Sale of Meat.

No person shall peddle by hand or from any vehicle, or sell from any other than a fixed place of business as provided in this Chapter, any meat, meat products or dressed poultry.

Sec. 5-3.304 Sinks Required.

Every establishment where meat, poultry or fish is cut shall be provided with a two (2) compartment metal sink with metal drain boards located conveniently to the meat department, with an adequate supply of hot and cold water under pressure. Such sink shall be used exclusively for washing utensils commonly used by meat cutters.

Sec. 5-3.305 Delivery Vehicles.

Delivery trucks shall be sanitary. No truck used for hauling livestock shall be used for hauling fresh meat unless such truck is washed and sterilized.

Fresh meat shall not come into contact with the floor boards or sides of any meat delivery vehicle.