BILL ANALYSIS


Public Health Committee
C.S.H.B. 2383
By: McDonald
04-11-95
Committee Report (Substituted)


BACKGROUND

The Texas Department of Health (TDH) currently monitors the charges
levied by counties and local public health districts. In some
municipalities, excessive food service permit fees and multiple
fines have transformed the local health departments into revenue
generators. The revenue generated is more than necessary for the
regulation of food service in some cases, and is allocated to
unrelated municipal expenses. Local health authorities, pressed by
municipalities to generate excess revenue, lose sight of their
function as protectors of the public health. Some  restaurants,
overcharged and fearful of the local health authority, have an
adversarial relationship with them.

PURPOSE

H.B. 2383 as substituted eliminates the cap based on the lowest fee
charged in a district and prohibits excessive fines.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency, or institution.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 437.012(b) of the Health and Safety Code
by establishing that the fee charged by a county or public health
district for issuing or renewing a permit may not exceed $150, and
deletes the language allowing the fee to also be the highest fee
charged by a municipality in the county or public health district,
whichever amount is less.

SECTION 2. Adds Section 437.019 to the Health and Safety Code as
follows:

     (a) Establishes that a municipality, county, or public health
district may not unreasonably      penalize a person required to
                                   obtain a permit for retailing
                                   or serving food by levying
                                   fines or penalties
                                   significantly in excess of
                                   similarly situated
                                   municipalities, counties or
                                   public health districts.

     (b) Establishes that a person or class of persons may bring
suit to enjoin a practice     prohibited by this section and may
                              recover fines found by the court to
                              have been excessive or confiscatory
                              in nature, and reasonable attorney's
                              fees and court costs.

SECTION 3. Effective date: September 1, 1995.

SECTION 4. Emergency clause.

COMPARISON OF ORIGINAL TO THE SUBSTITUTE

H.B. 2383 as substituted deletes specific requirements in the
original bill for municipalities to create a subsidiary account
dedicated to the regulation of the food service industry.
Provisions in the introduced version which would have mandated
municipalities to audit this account and file a financial report
with the Texas Department of Health have been deleted. Amends the
original bill to prohibit a municipality, county, or public health
district from unreasonably penalizing a person required to obtain
a permit through excessive fines or penalties not consistent with
the norm.

SUMMARY OF COMMITTEE ACTION

H.B. 2383 was considered by the committee in a public hearing on
March 28, 1995. 
The committee considered a complete substitute for the bill. The
substitute was adopted without objection.

The following persons testified in favor of the bill:
Chuck Courtney, representing Texas Retailers Association.
Glenn Garey, representing Texas Restaurant Association. 
Rex T. Sherry, representing self.

The following person testified against the bill:
Wayne Farrell, representing self and Texas Association of Municipal
Health Officials.

The bill was considered by the committee as pending business on
April 11, 1995. The bill was reported favorably as substituted,
with the recommendation that it do pass and be printed, by a record
vote of 6 Ayes, 0 Nays, 0 PNV, 3 Absent.