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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