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HomeMy WebLinkAbout1990-1841 - Ordinance - 03/08/1990ORDINANCE NO. 1841 AN ORDINANCE REPEALING CHAPTER 7, SECTION 6, OF THE CODE OF ORDI- NANCES OF THE CITY OF COLLEGE STATION REGULATING THE SALE OF ADULTERATED OR MISBRANDED MIX OR FROZEN DESSERTS AND ADOPTING A NEW SECTION 6 OF CHAPTER 7 OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION REGULATING SOFT SERVE ESTABLISHMENTS WITHIN THE CITY LIMITS OF THE CITY OF COLLEGE STATION. WHEREAS, the City has previously adopted an ordinance regu- lating the sale of frozen desserts ("soft serve") within the City, which included the regulation of the manufacturers of frozen desserts; WHEREAS, the Texas Board of Health is now authorized to reg- ulate the manufacturers of frozen desserts, pursuant to Article 4476-2a of the Texas Revised Civil Statutes, more commonly re- ferred to as the Texas Frozen Desserts Manufacturing Licensing Act; and WHEREAS, the City Council finds that the continued regula- tion of the retail sale of frozen desserts ("soft serve") is nec- essary for the protection of the health and welfare of the commu- nity; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, THAT: Chapter 7, Section 6, of the Code of Ordinances regulating the sale of adulterated or misbranded mix or frozen desserts is hereby repealed and a new Section 6 regulating soft serve estab- lishments is hereby enacted to read as follows: "SECTION 6: SOFT SERVE ESTABLISHMENTS DEFINITIONS. The following definitions shall apply in the interpretation and the enforcement of this section. Dairy Products means any product derived from milk either partially or completely, with or without the addition of any other product. Frozen Desser~ means any of the following: ice milk, fruit sherbet, nonfruit sherbet, water ice, frozen dietary dairy desserts, ice cream, nonfruit frozen yo- Bm gurt, quiescently frozen confection, quiescently frozen dairy confection, mellorine, lorine, parevine, freezer- made milk shake, freezer-made shake, or non-dairy frozen dessert. The term includes the mix used in the freezing of this product. Imitation Frozen Dessert means any frozen substance, mixture, or compound, regardless of the name under which it is represented, that is made in imitation or semblance of any of the products listed in the frozen dessert definition. The term includes the mix used in the freezing of this product. Health Department means the Brazos County Health Department. Mix means the pasteurized or unpasteurized, liquid or dry, unfrozen combination of the ingredients permitted in a frozen dessert with or without fruits, fruit juices, candy, baked goods and confections, nutmeats or other harmless flavor or color. Person means an individual, corporation, business trust, estate, trust, partnership, association, or any other public or private legal entity. Soft Serve means any frozen dessert, imitation frozen dessert, or any product resulting from a combination of the two. Soft Serve Establishment means the premises where soft serve mixes are frozen or partially frozen and dis- pensed for sale, or where soft serve is distributed to the consumer. This definition includes, but is not limited to, a retail store, approved stand, hotel, restaurant, vehicle, or mobile unit. All other terms shall be as defined in Article 4476-2a, Texas Revised Civil Statutes, as amended, and the rules adopted thereunder by the Texas Department of Health. PEP/~ITS. 1. APPlicabilitY It shall be unlawful for any person to operate a soft serve establishment without having secured a valid soft serve permit issued by the Health Department. The Health Department is hereby authorized to enforce this ordinance. 2 .n, PS,q I ADDlication for Permit A person desiring to operate a soft serve establishment shall file an application for a permit with the Health Department. The issuance of all permits is subject to procedural rules adopted by the Texas Board of Health. Permits are valid only for the purpose and use as stated on the application. Permits are not trans- ferable. Permits shall be renewed annually on or before January 1st of each year. The applicant or holder of a soft serve permit must also have a valid "Food Service Establishment" permit issued by the Health Department. I~spection of Premises The Health Department shall inspect the soft serve establishment before issuing a permit. A permit shall not be issued to a person failing to comply with the standards prescribed by the Texas Board of Health, as attached hereto as Exhibit A. A valid permit shall be displayed in such a manner as to be visible by the pub- lic in every soft serve establishment. Retention of Permit A person who fails to comply with the requirements of this section, as determined by the Health Department, shall not be entitled to retain a permit. ADDeals A decision of the Health Department may be appealed to the Municipal Court of the City of College Station by the filing of an application for an administrative review with the College Station Municipal Clerk. The review of the decision of the Health Department by the court shall be based upon the application of the sub- stantial evidence rule. Permit Fees Each applicant or holder of a soft serve permit shall pay all required fees to the Health Department prior to the issuance or renewal of a permit. Permit and test- ing fees shall be set by resolution of the City Coun- cil· . C. INSPECTIONS 1. Access by Health Department Representatives of the Health Department shall have free access at all reasonable hours to any soft serve establishment for the purpose of= (a) inspecting the soft serve establishment to deter- mine compliance with the requirements of this sec- tion; and (b) securing samples of soft serve for the purpose of making or causing an examination to be made of the samples to determine compliance with this section. 2. Freauencv of Testina The Health Department shall obtain samples of soft serve for testing from each soft serve establishment at least four times during each six (6) month period. The Health Department may require additional samples from any soft serve establishment at any time. The permit holder shall be required to pay the applicable testing fees. 3. TYPes of Testina The testing conducted by the Health Department shall include bacterial counts, coliform determination, and phosphatase tests. The Health Department may require additional biological, chemical, and physical testing to be performed as the Health Department shall deem necessary for the detection of adulteration. Ail test- ing shall conform to the methods used in the most recent edition of "Standard Methods for the Examination of Dairy Products" as published by the American Public Health Association. 4. Testina Standards The minimum standards for bacterial counts, coliform determinations, and cooling temperature tests shall be established as shown in Table A, which is attached hereto and incorporated herein. The minimum standards to be applied in other types of testing shall be the standards applied by the Texas Department of Health for the testing of soft serve manufacturers. 4 D. PROBATION AND SUSPENSION OF PERMITS 1. Probationary Permit Status Whenever two of the last four consecutive bacterial counts, coliform determinations, or cooling tempera- tures taken on separate days exceed the limit of the standards established in Table A, the Health Department shall deliver a written notice of permit violation to the permit holder. This notice shall state that any further permit violations shall result in the immediate suspension or revocation of the permit. This notice shall remain in effect so long as two of the last four consecutive samples exceed the limit of the standards established in Table A. An additional sample shall be taken no sooner than three (3) days from the date of the notice, but no later than twenty-one (21) days from the date of the notice. 2. Immediate Permit Suspension or Revocation Immediate permit suspension or revocation shall be in- stituted whenever the standards established in Table A are violated by three of the last five bacterial counts, coliform determinations or cooling temperatures of samples collected within a six-month period. The Health Department shall hand-deliver notice of permit suspension to the permit holder. This notice shall require cessation of the sale or distribution of any applicable soft serve product. 3. Time Limit for ADDeal The permit holder shall have seventy-two (72) hours to file an application for a hearing to appeal the deci- sion of the Health Department, unless reasonable cause can be shown for the delay. Upon the filing of an application for review with the Municipal Court, the Municipal Court shall set a hearing. The court shall hear the application for administrative review of the decision of the Health Department as soon as practica- ble but in no less than seventy-two (72) hours. The hearing shall be de novo. 4. Reinstatement of Permit Prior to the reinstatement of a suspended or revoked permit, the Health Department shall qualify the soft serve establishment for reinstatement by following the procedures stated in this subsection. (a) (b) The Health Department shall review all of the pro- cedures and inspect all of the equipment used by the permit holder in the storage and preparation of soft serve. The Health Department shall, as it deems necessary, require the soft serve establish- ment to make changes necessary to assure a product consistently in compliance with the ordinance. In addition, the Health Department may require that the soft serve establishment maintain an owner's or operator's manual on the premises at all times for the operation and cleaning of the machine(s) used. The Health Department may also require additional periodic inspections of the procedures and equipment used by the permit holder in order for the permit holder to maintain a permit once it has been suspended. The Health Department shall acquire additional samples of soft serve for testing. The results of all tests shall meet the standards established in Table A of this section. BACTERIAL. MAXIMUM BACTERIAL LIMITS (except cultured products) PASTEURIZED MIX AND FROZEN DESSERTS 50,000/mi 40/ml IMITATION FROZEN DESSERTS & NONDAIRY F9o~N DESSERT~ §0,000/mi 40/ml TABLE A COLIFORM AND TEMPERATURE STANDARDS MAXIMUM COLIFORM TEMPERATURE LIMITS LIMIT (includes cultured products) 45 deg. F. 45 deg. F. IMITATION FROZEN DESSERTS MIX fDRY) & NoNn~IRY FROZEN Dm~mRTS MIX tDRY) 1,000/ml 10/ml ....... PENALTY FOR VIOLATION A person who violates any section of this ordinance is guilty of a Class C misdemeanor which is punishable by a 6 5 35 fine not to exceed One Thousand Dollars ($1,000.00). Each day of violation of this section shall constitute a separate offense." II. This ordinance shall become effective and be in full force and effect thirty (30) days from and after its passage and approval by the City Council and duly attested by the Mayor and City Secretary. PASSED, ADOPTED and APPROVED this 8th day of March, 1990. ATTEST: Connie Hooks, City Secretary APPROVED: 7