1-1  By:  Armbrister                                       S.B. No. 1421
    1-2        (In the Senate - Filed April 26, 1993; April 26, 1993, read
    1-3  first time and referred to Committee on Health and Human Services;
    1-4  May 7, 1993, reported favorably, as amended, by the following vote:
    1-5  Yeas 8, Nays 0; May 7, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Zaffirini          x                               
    1-9        Ellis              x                               
   1-10        Madla              x                               
   1-11        Moncrief           x                               
   1-12        Nelson             x                               
   1-13        Patterson          x                               
   1-14        Shelley                                        x   
   1-15        Truan              x                               
   1-16        Wentworth          x                               
   1-17  COMMITTEE AMENDMENT NO. 1                            By:  Wentworth
   1-18  Amend S.B. No. 1421 as follows:
   1-19        (1)  Page 2, line 18, after the word "district." add the
   1-20  sentences "The board by rule shall establish minimum standards for
   1-21  granting and maintaining a permit in an area not regulated under
   1-22  this chapter by a county or public health district.  The
   1-23  commissioner may refuse an application for permit or suspend or
   1-24  revoke a permit in an area not regulated under this chapter by a
   1-25  county or public health district."
   1-26        (2)  Page 3, line 3, between the words "The" and "may"
   1-27  replace "board" with "commissioner".
   1-28        (3)  Page 3, line 21, strike the word "may" and replace it
   1-29  with the word "shall"; between the words "issue" and "a" strike the
   1-30  words "to the board"; between the words "board" and "that" replace
   1-31  the words "a report" with "an order".
   1-32        (4)  Page 3, line 22 to 23, between the words "based" and
   1-33  "including" strike the words "and the director's recommendation on
   1-34  the imposition of a penalty".
   1-35        (5)  Page 3, line 23 to 24, between the words "including" and
   1-36  "the" replace the words "a recommendation on the amount of" with
   1-37  "an assessment of".
   1-38        (6)  Page 3, line 40, between the words "the" and "by"
   1-39  replace "board" with "commissioner".
   1-40        (7)  Page 3, line 46, between the words "the" and "a" replace
   1-41  "board" with "commissioner".
   1-42        (8)  Page 3, line 49, between the words "the" and  "by"
   1-43  replace "board" with "commissioner".
   1-44        (9)  Page 3, line 51, between the words "the" and "order"
   1-45  replace "board's" with "commissioner's".
   1-46        (10)  Page 4, line 28, replace the last word in the line
   1-47  "board" with "commissioner".
   1-48                         A BILL TO BE ENTITLED
   1-49                                AN ACT
   1-50  relating to the regulation of food service establishments, retail
   1-51  food stores, mobile food units, and temporary food service
   1-52  establishments not regulated by counties or public health
   1-53  districts; providing penalties.
   1-54        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-55        SECTION 1.  Section 437.001, Health and Safety Code, is
   1-56  amended to read as follows:
   1-57        Sec. 437.001.  Definitions.  In this chapter:
   1-58              (1)  "Board" means the Texas Board of Health.
   1-59              (2)  "Commissioner" means the commissioner of health.
   1-60              (3)  "Department" means the Texas Department of Health.
   1-61              (4)  "Food,"<, "food,"> "food service establishment,"
   1-62  "retail food store," "mobile food unit," <and> "roadside food
   1-63  vendor", and "temporary food service establishment" have the
   1-64  meanings assigned to those terms by rules adopted by the board
   1-65  <Texas Board of Health> under this chapter <Chapter 431 (Texas
   1-66  Food, Drug, and Cosmetic Act)>.
   1-67        SECTION 2.  Chapter 437, Health and Safety Code, is amended
   1-68  by adding Sections 437.0055 and 437.0056 to read as follows:
    2-1        Sec. 437.0055.  PERMIT FROM DEPARTMENT REQUIRED IN AREAS NOT
    2-2  REGULATED BY COUNTY OR PUBLIC HEALTH DISTRICT.  (a)  A person may
    2-3  not operate a food service establishment, retail food store, mobile
    2-4  food unit, or temporary food service establishment located in an
    2-5  area in which a county or public health district does not require a
    2-6  permit or conduct inspections under this chapter unless the person
    2-7  has a permit issued by the department.
    2-8        (b)  A person required to obtain a permit under Subsection
    2-9  (a) must apply annually for the permit and must pay any fees
   2-10  required by the department.
   2-11        Sec. 437.0056.  RULEMAKING AUTHORITY.  The board may adopt
   2-12  rules for the efficient enforcement of this chapter by the
   2-13  department in an area not regulated under this chapter by a county
   2-14  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
   2-28  cooperative agreement under which the district operates.
   2-29        (d)  Fees deposited as provided by this section may be spent
   2-30  only for conducting inspections required by this chapter and
   2-31  issuing permits.
   2-32        SECTION 4.  Chapter 437, Health and Safety Code, is amended
   2-33  by adding Section 437.0125 to read as follows:
   2-34        Sec. 437.0125.  DEPARTMENT FEES.  (a)  The department shall
   2-35  collect fees for:
   2-36              (1)  filing, renewing, or amending a permit; and
   2-37              (2)  an inspection performed to enforce this chapter or
   2-38  a rule adopted under this chapter.
   2-39        (b)  The department may charge annual fees.
   2-40        (c)  The board by rule shall set the fees in amounts that
   2-41  allow the department to recover at least 50 percent of the annual
   2-42  expenditures by the department for:
   2-43              (1)  reviewing and acting on a permit;
   2-44              (2)  amending and renewing a permit;
   2-45              (3)  inspecting a facility as provided by this chapter
   2-46  and rules adopted under this chapter; and
   2-47              (4)  implementing and enforcing this chapter, including
   2-48  a rule or order adopted or a license issued by the department.
   2-49        (d)  The department shall spend not less than 50 percent of
   2-50  the permit fees collected to inspect facilities and to enforce and
   2-51  administer this chapter.
   2-52        (e)  All permit fees collected by the department under this
   2-53  chapter shall be deposited in the state treasury to the credit of
   2-54  the food and drug retail fee fund.
   2-55        SECTION 5.  The section heading of Section 437.016, Health
   2-56  and Safety Code, is amended to read as follows:
   2-57        Sec. 437.016.  CRIMINAL PENALTY:  VIOLATION OF COUNTY AND
   2-58  PUBLIC HEALTH DISTRICT PERMIT REQUIREMENTS.
   2-59        SECTION 6.  Chapter 437, Health and Safety Code, is amended
   2-60  by adding Sections 437.0165 and 437.018 to read as follows:
   2-61        Sec. 437.0165.  CRIMINAL PENALTY:  VIOLATION OF DEPARTMENT
   2-62  PERMIT REQUIREMENT.  (a)  A person commits an offense if the person
   2-63  operates a food service establishment, retail food store, mobile
   2-64  food unit, or temporary food service establishment without a permit
   2-65  that is required by the department under Section 437.0055.
   2-66        (b)  An offense under this section is a Class A misdemeanor.
   2-67        (c)  Each day on which a violation occurs constitutes a
   2-68  separate offense.
   2-69        Sec. 437.018.  ADMINISTRATIVE PENALTY.  (a)  The board may
   2-70  impose an administrative penalty against a person who holds a
    3-1  permit or who is regulated under this chapter and who violates this
    3-2  chapter or a rule or order adopted under this chapter.
    3-3        (b)  The penalty for a violation may be in an amount not to
    3-4  exceed $10,000.  Each day a violation continues or occurs is a
    3-5  separate violation for purposes of imposing a penalty.
    3-6        (c)  The amount of the penalty shall be based on:
    3-7              (1)  the seriousness of the violation, including the
    3-8  nature, circumstances, extent, and gravity of any prohibited acts,
    3-9  and the hazard or potential hazard created to the health, safety,
   3-10  or economic welfare of the public;
   3-11              (2)  the enforcement costs relating to the violation;
   3-12              (3)  the history of previous violations;
   3-13              (4)  the amount necessary to deter future violations;
   3-14              (5)  efforts to correct the violation; and
   3-15              (6)  any other matter that justice may require.
   3-16        (d)  If the commissioner determines that a violation has
   3-17  occurred, the commissioner may issue to the board a report that
   3-18  states the facts on which the determination is based and the
   3-19  director's recommendation on the imposition of a penalty, including
   3-20  a recommendation on the amount of the penalty.
   3-21        (e)  Within 14 days after the date the report is issued, the
   3-22  commissioner shall give written notice of the report to the person.
   3-23  The notice may be given by certified mail.  The notice must include
   3-24  a brief summary of the alleged violation and a statement of the
   3-25  amount of the recommended penalty and must inform the person that
   3-26  the person has a right to a hearing on the occurrence of the
   3-27  violation, the amount of the penalty, or both the occurrence of the
   3-28  violation and the amount of the penalty.
   3-29        (f)  Within 20 days after the date the person receives the
   3-30  notice, the person in writing may accept the determination and
   3-31  recommended penalty of the commissioner or may make a written
   3-32  request for a hearing on the occurrence of the violation, the
   3-33  amount of the penalty, or both the occurrence of the violation and
   3-34  the amount of the penalty.
   3-35        (g)  If the person accepts the determination and recommended
   3-36  penalty of the commissioner, the board by order shall approve the
   3-37  determination and impose the recommended penalty.
   3-38        (h)  If the person requests a hearing or fails to respond
   3-39  timely to the notice, the commissioner shall set a hearing and give
   3-40  notice of the hearing to the person.  An administrative law judge
   3-41  shall make findings of fact and conclusions of law and promptly
   3-42  issue to the board a proposal for a decision about the occurrence
   3-43  of the violation and the amount of a proposed penalty.  Based on
   3-44  the findings of fact, conclusions of law, and proposal for a
   3-45  decision, the board by order may find that a violation has occurred
   3-46  and impose a penalty or may find that no violation occurred.
   3-47        (i)  The notice of the board's order given to the person
   3-48  under the Administrative Procedure and Texas Register Act (Article
   3-49  6252-13a, Vernon's Texas Civil Statutes) must include a statement
   3-50  of the right of the person to judicial review of the order.
   3-51        (j)  Within 30 days after the date the board's order is final
   3-52  as provided by Section 16(c), Administrative Procedure and Texas
   3-53  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
   3-54  person shall:
   3-55              (1)  pay the amount of the penalty;
   3-56              (2)  pay the amount of the penalty and file a petition
   3-57  for judicial review contesting the occurrence of the violation, the
   3-58  amount of the penalty, or both the occurrence of the violation and
   3-59  the amount of the penalty; or
   3-60              (3)  without paying the amount of the penalty, file a
   3-61  petition for judicial review contesting the occurrence of the
   3-62  violation, the amount of the penalty, or both the occurrence of the
   3-63  violation and the amount of the penalty.
   3-64        (k)  Within the 30-day period, a person who acts under
   3-65  Subsection (j)(3) of this section may:
   3-66              (1)  stay enforcement of the penalty by:
   3-67                    (A)  paying the amount of the penalty to the
   3-68  court for placement in an escrow account; or
   3-69                    (B)  giving to the court a supersedeas bond that
   3-70  is approved by the court for the amount of the penalty and that is
    4-1  effective until all judicial review of the board's order is final;
    4-2  or
    4-3              (2)  request the court to stay enforcement of the
    4-4  penalty by:
    4-5                    (A)  filing with the court a sworn affidavit of
    4-6  the person stating that the person is financially unable to pay the
    4-7  amount of the penalty and is financially unable to give the
    4-8  supersedeas bond; and
    4-9                    (B)  giving a copy of the affidavit to the
   4-10  commissioner by certified mail.
   4-11        (l)  The commissioner on receipt of a copy of an affidavit
   4-12  under Subsection (k)(2) of this section may file with the court,
   4-13  within five days after the date the copy is received, a contest to
   4-14  the affidavit.  The court shall hold a hearing on the facts alleged
   4-15  in the affidavit as soon as practicable and shall stay the
   4-16  enforcement of the penalty on finding that the alleged facts are
   4-17  true.  The person who files an affidavit has the burden of proving
   4-18  that the person is financially unable to pay the amount of the
   4-19  penalty and to give a supersedeas bond.
   4-20        (m)  If the person does not pay the amount of the penalty and
   4-21  the enforcement of the penalty is not stayed, the commissioner may
   4-22  refer the matter to the attorney general for collection of the
   4-23  amount of the penalty.
   4-24        (n)  Judicial review of the order of the board:
   4-25              (1)  is instituted by filing a petition as provided by
   4-26  Section 19, Administrative Procedure and Texas Register Act
   4-27  (Article 6252-13a, Vernon's Texas Civil Statutes); and
   4-28              (2)  is under the substantial evidence rule.
   4-29        (o)  If the court sustains the occurrence of the violation,
   4-30  the court may uphold or reduce the amount of the penalty and order
   4-31  the person to pay the full or reduced amount of the penalty.  If
   4-32  the court does not sustain the occurrence of the violation, the
   4-33  court shall order that no penalty is owed.
   4-34        (p)  When the judgment of the court becomes final, the court
   4-35  shall proceed under this subsection.  If the person paid the amount
   4-36  of the penalty and if that amount is reduced or is not upheld by
   4-37  the court, the court shall order that the appropriate amount plus
   4-38  accrued interest be remitted to the person.  The rate of the
   4-39  interest is the rate charged on loans to depository institutions by
   4-40  the New York Federal Reserve Bank, and the interest shall be paid
   4-41  for the period beginning on the date the penalty was paid and
   4-42  ending on the date the penalty is remitted.  If the person gave a
   4-43  supersedeas bond and if the amount of the penalty is not upheld by
   4-44  the court, the court shall order the release of the bond.  If the
   4-45  person gave a supersedeas bond and if the amount of the penalty is
   4-46  reduced, the court shall order the release of the bond after the
   4-47  person pays the amount.
   4-48        (q)  A penalty collected under this section shall be remitted
   4-49  to the comptroller for deposit in the general revenue fund.
   4-50        (r)  All proceedings under this section are subject to the
   4-51  Administrative Procedure and Texas Register Act (Article 6252-13a,
   4-52  Vernon's Texas Civil Statutes).
   4-53        SECTION 7.  This Act takes effect September 1, 1993, except
   4-54  that Sections 2 and 6, to the extent they prohibit the operation of
   4-55  a food service establishment, retail food store, mobile food unit,
   4-56  or temporary food service establishment without a license from the
   4-57  Texas Department of Health, take effect January 1, 1994.
   4-58        SECTION 8.  The importance of this legislation and the
   4-59  crowded condition of the calendars in both houses create an
   4-60  emergency and an imperative public necessity that the
   4-61  constitutional rule requiring bills to be read on three several
   4-62  days in each house be suspended, and this rule is hereby suspended.
   4-63                               * * * * *
   4-64                                                         Austin,
   4-65  Texas
   4-66                                                         May 7, 1993
   4-67  Hon. Bob Bullock
   4-68  President of the Senate
   4-69  Sir:
   4-70  We, your Committee on Health and Human Services to which was
    5-1  referred S.B. No. 1421, have had the same under consideration, and
    5-2  I am instructed to report it back to the Senate with the
    5-3  recommendation that it do pass, as amended, and be printed.
    5-4                                                         Moncrief,
    5-5  Acting Chair
    5-6                               * * * * *
    5-7                               WITNESSES
    5-8                                                  FOR   AGAINST  ON
    5-9  ___________________________________________________________________
   5-10  Name:  Steve McAndrew                                          x
   5-11  Representing:  Tx Dept of Health
   5-12  City:  Austin
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