By: Armbrister S.B. No. 1421
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of food service establishments, retail
1-2 food stores, mobile food units, and temporary food service
1-3 establishments not regulated by counties or public health
1-4 districts; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 437.001, Health and Safety Code, is
1-7 amended to read as follows:
1-8 Sec. 437.001. Definitions. In this chapter:
1-9 (1) "Board" means the Texas Board of Health.
1-10 (2) "Commissioner" means the commissioner of health.
1-11 (3) "Department" means the Texas Department of Health.
1-12 (4) "Food,"<, "food,"> "food service establishment,"
1-13 "retail food store," "mobile food unit," <and> "roadside food
1-14 vendor", and "temporary food service establishment" have the
1-15 meanings assigned to those terms by rules adopted by the board
1-16 <Texas Board of Health> under this chapter <Chapter 431 (Texas
1-17 Food, Drug, and Cosmetic Act)>.
1-18 SECTION 2. Chapter 437, Health and Safety Code, is amended
1-19 by adding Sections 437.0055 and 437.0056 to read as follows:
1-20 Sec. 437.0055. PERMIT FROM DEPARTMENT REQUIRED IN AREAS NOT
1-21 REGULATED BY COUNTY OR PUBLIC HEALTH DISTRICT. (a) A person may
1-22 not operate a food service establishment, retail food store, mobile
1-23 food unit, or temporary food service establishment located in an
1-24 area in which a county or public health district does not require a
2-1 permit or conduct inspections under this chapter unless the person
2-2 has a permit issued by the department.
2-3 (b) A person required to obtain a permit under Subsection
2-4 (a) must apply annually for the permit and must pay any fees
2-5 required by the department.
2-6 Sec. 437.0056. RULEMAKING AUTHORITY. The board may adopt
2-7 rules for the efficient enforcement of this chapter by the
2-8 department in an area not regulated under this chapter by a county
2-9 or public health district. The board by rule shall establish
2-10 minimum standards for granting and maintaining a permit in an area
2-11 not regulated under this chapter by a county or public health
2-12 district. The commissioner may refuse an application for permit or
2-13 suspend or revoke a permit in an area not regulated under this
2-14 chapter by a county or public health district.
2-15 SECTION 3. Section 437.012, Health and Safety Code, is
2-16 amended to read as follows:
2-17 Sec. 437.012. COUNTY AND PUBLIC HEALTH DISTRICT FEES.
2-18 (a) A county or public health district may require the payment of
2-19 a fee for issuing or renewing a permit.
2-20 (b) The fee charged by a county or public health district
2-21 for issuing or renewing a permit may not exceed $150 or the highest
2-22 fee charged by a municipality in the county or public health
2-23 district, whichever amount is less.
2-24 (c) Fees collected by a county under this chapter shall be
2-25 deposited to the credit of a special fund of the county. Fees
2-26 collected by a public health district under this chapter shall be
2-27 deposited to the credit of a special fund created by the
3-1 cooperative agreement under which the district operates.
3-2 (d) Fees deposited as provided by this section may be spent
3-3 only for conducting inspections required by this chapter and
3-4 issuing permits.
3-5 SECTION 4. Chapter 437, Health and Safety Code, is amended
3-6 by adding Section 437.0125 to read as follows:
3-7 Sec. 437.0125. DEPARTMENT FEES. (a) The department shall
3-8 collect fees for:
3-9 (1) filing, renewing, or amending a permit; and
3-10 (2) an inspection performed to enforce this chapter or
3-11 a rule adopted under this chapter.
3-12 (b) The department may charge annual fees.
3-13 (c) The board by rule shall set the fees in amounts that
3-14 allow the department to recover at least 50 percent of the annual
3-15 expenditures by the department for:
3-16 (1) reviewing and acting on a permit;
3-17 (2) amending and renewing a permit;
3-18 (3) inspecting a facility as provided by this chapter
3-19 and rules adopted under this chapter; and
3-20 (4) implementing and enforcing this chapter, including
3-21 a rule or order adopted or a license issued by the department.
3-22 (d) The department shall spend not less than 50 percent of
3-23 the permit fees collected to inspect facilities and to enforce and
3-24 administer this chapter.
3-25 (e) All permit fees collected by the department under this
3-26 chapter shall be deposited in the state treasury to the credit of
3-27 the food and drug retail fee fund.
4-1 SECTION 5. The section heading of Section 437.016, Health
4-2 and Safety Code, is amended to read as follows:
4-3 Sec. 437.016. CRIMINAL PENALTY: VIOLATION OF COUNTY AND
4-4 PUBLIC HEALTH DISTRICT PERMIT REQUIREMENTS.
4-5 SECTION 6. Chapter 437, Health and Safety Code, is amended
4-6 by adding Sections 437.0165 and 437.018 to read as follows:
4-7 Sec. 437.0165. CRIMINAL PENALTY: VIOLATION OF DEPARTMENT
4-8 PERMIT REQUIREMENT. (a) A person commits an offense if the person
4-9 operates a food service establishment, retail food store, mobile
4-10 food unit, or temporary food service establishment without a permit
4-11 that is required by the department under Section 437.0055.
4-12 (b) An offense under this section is a Class A misdemeanor.
4-13 (c) Each day on which a violation occurs constitutes a
4-14 separate offense.
4-15 Sec. 437.018. ADMINISTRATIVE PENALTY. (a) The commissioner
4-16 may impose an administrative penalty against a person who holds a
4-17 permit or who is regulated under this chapter and who violates this
4-18 chapter or a rule or order adopted under this chapter.
4-19 (b) The penalty for a violation may be in an amount not to
4-20 exceed $10,000. Each day a violation continues or occurs is a
4-21 separate violation for purposes of imposing a penalty.
4-22 (c) The amount of the penalty shall be based on:
4-23 (1) the seriousness of the violation, including the
4-24 nature, circumstances, extent, and gravity of any prohibited acts,
4-25 and the hazard or potential hazard created to the health, safety,
4-26 or economic welfare of the public;
4-27 (2) the enforcement costs relating to the violation;
5-1 (3) the history of previous violations;
5-2 (4) the amount necessary to deter future violations;
5-3 (5) efforts to correct the violation; and
5-4 (6) any other matter that justice may require.
5-5 (d) If the commissioner determines that a violation has
5-6 occurred, the commissioner shall issue an order that states the
5-7 facts on which the determination is based, including an assessment
5-8 of the penalty.
5-9 (e) Within 14 days after the date the order is issued, the
5-10 commissioner shall give written notice of the order to the person.
5-11 The notice may be given by certified mail. The notice must include
5-12 a brief summary of the alleged violation and a statement of the
5-13 amount of the recommended penalty and must inform the person that
5-14 the person has a right to a hearing on the occurrence of the
5-15 violation, the amount of the penalty, or both the occurrence of the
5-16 violation and the amount of the penalty.
5-17 (f) Within 20 days after the date the person receives the
5-18 notice, the person in writing may accept the determination and
5-19 recommended penalty of the commissioner or may make a written
5-20 request for a hearing on the occurrence of the violation, the
5-21 amount of the penalty, or both the occurrence of the violation and
5-22 the amount of the penalty.
5-23 (g) If the person accepts the determination and recommended
5-24 penalty of the commissioner, the commissioner by order shall
5-25 approve the determination and impose the recommended penalty.
5-26 (h) If the person requests a hearing or fails to respond
5-27 timely to the notice, the commissioner shall set a hearing and give
6-1 notice of the hearing to the person. An administrative law judge
6-2 shall make findings of fact and conclusions of law and promptly
6-3 issue to the commissioner a proposal for a decision about the
6-4 occurrence of the violation and the amount of a proposed penalty.
6-5 Based on the findings of fact, conclusions of law, and proposal for
6-6 a decision, the commissioner by order may find that a violation has
6-7 occurred and impose a penalty or may find that no violation
6-8 occurred.
6-9 (i) The notice of the commissioner's order given to the
6-10 person under the Administrative Procedure and Texas Register Act
6-11 (Article 6252-13a, Vernon's Texas Civil Statutes) must include a
6-12 statement of the right of the person to judicial review of the
6-13 order.
6-14 (j) Within 30 days after the date the board's order is final
6-15 as provided by Section 16(c), Administrative Procedure and Texas
6-16 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
6-17 person shall:
6-18 (1) pay the amount of the penalty;
6-19 (2) pay the amount of the penalty and file a petition
6-20 for judicial review contesting the occurrence of the violation, the
6-21 amount of the penalty, or both the occurrence of the violation and
6-22 the amount of the penalty; or
6-23 (3) without paying the amount of the penalty, file a
6-24 petition for judicial review contesting the occurrence of the
6-25 violation, the amount of the penalty, or both the occurrence of the
6-26 violation and the amount of the penalty.
6-27 (k) Within the 30-day period, a person who acts under
7-1 Subsection (j)(3) of this section may:
7-2 (1) stay enforcement of the penalty by:
7-3 (A) paying the amount of the penalty to the
7-4 court for placement in an escrow account; or
7-5 (B) giving to the court a supersedeas bond that
7-6 is approved by the court for the amount of the penalty and that is
7-7 effective until all judicial review of the board's order is final;
7-8 or
7-9 (2) request the court to stay enforcement of the
7-10 penalty by:
7-11 (A) filing with the court a sworn affidavit of
7-12 the person stating that the person is financially unable to pay the
7-13 amount of the penalty and is financially unable to give the
7-14 supersedeas bond; and
7-15 (B) giving a copy of the affidavit to the
7-16 commissioner by certified mail.
7-17 (l) The commissioner on receipt of a copy of an affidavit
7-18 under Subsection (k)(2) of this section may file with the court,
7-19 within five days after the date the copy is received, a contest to
7-20 the affidavit. The court shall hold a hearing on the facts alleged
7-21 in the affidavit as soon as practicable and shall stay the
7-22 enforcement of the penalty on finding that the alleged facts are
7-23 true. The person who files an affidavit has the burden of proving
7-24 that the person is financially unable to pay the amount of the
7-25 penalty and to give a supersedeas bond.
7-26 (m) If the person does not pay the amount of the penalty and
7-27 the enforcement of the penalty is not stayed, the commissioner may
8-1 refer the matter to the attorney general for collection of the
8-2 amount of the penalty.
8-3 (n) Judicial review of the order of the commissioner:
8-4 (1) is instituted by filing a petition as provided by
8-5 Section 19, Administrative Procedure and Texas Register Act
8-6 (Article 6252-13a, Vernon's Texas Civil Statutes); and
8-7 (2) is under the substantial evidence rule.
8-8 (o) If the court sustains the occurrence of the violation,
8-9 the court may uphold or reduce the amount of the penalty and order
8-10 the person to pay the full or reduced amount of the penalty. If
8-11 the court does not sustain the occurrence of the violation, the
8-12 court shall order that no penalty is owed.
8-13 (p) When the judgment of the court becomes final, the court
8-14 shall proceed under this subsection. If the person paid the amount
8-15 of the penalty and if that amount is reduced or is not upheld by
8-16 the court, the court shall order that the appropriate amount plus
8-17 accrued interest be remitted to the person. The rate of the
8-18 interest is the rate charged on loans to depository institutions by
8-19 the New York Federal Reserve Bank, and the interest shall be paid
8-20 for the period beginning on the date the penalty was paid and
8-21 ending on the date the penalty is remitted. If the person gave a
8-22 supersedeas bond and if the amount of the penalty is not upheld by
8-23 the court, the court shall order the release of the bond. If the
8-24 person gave a supersedeas bond and if the amount of the penalty is
8-25 reduced, the court shall order the release of the bond after the
8-26 person pays the amount.
8-27 (q) A penalty collected under this section shall be remitted
9-1 to the comptroller for deposit in the general revenue fund.
9-2 (r) All proceedings under this section are subject to the
9-3 Administrative Procedure and Texas Register Act (Article 6252-13a,
9-4 Vernon's Texas Civil Statutes).
9-5 SECTION 7. This Act takes effect September 1, 1993, except
9-6 that Sections 2 and 6, to the extent they prohibit the operation of
9-7 a food service establishment, retail food store, mobile food unit,
9-8 or temporary food service establishment without a license from the
9-9 Texas Department of Health, take effect January 1, 1994.
9-10 SECTION 8. The importance of this legislation and the
9-11 crowded condition of the calendars in both houses create an
9-12 emergency and an imperative public necessity that the
9-13 constitutional rule requiring bills to be read on three several
9-14 days in each house be suspended, and this rule is hereby suspended.