ORDINANCE NO. 081252

 

Amending Chapter 30, Code of Ordinances, by repealing Sections 30-71 through 30-77, and enacting in lieu thereof new Sections 30-71 through 30-77 of like title and subject matter to adopt the 2005 FDA Food Code with various modifications and incorporating the Code by reference.

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. That Chapter 30, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by repealing Sections 30-71 through 30-78, and enacting in lieu thereof new sections of like numbers and subject matters, to read as follows:

 

ARTICLE III. FOOD SERVICE ESTABLISHMENTS

 

Sec. 30-71. 2005 Food Code Adopted.

 

(a) The Food Code, 2005 Recommendations of the United States Public Health Service/Food and Drug Administration, Section 1-101.10 through section 8-813.10, as published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration be, and is hereby adopted as, the 2005 Food Code (2005 Food Code) of the City of Kansas City, Missouri for regulating the design, construction, management and operation of food establishments, and providing for plans submission and approval and the issuance of permits and collection of fees therefore. The 2005 Food Code is hereby adopted by reference with modifications as specified in this Article, and for all intents and purposes incorporated into this Article as if fully set forth in this Article, and shall be in force and effect as the Kansas City Missouri Food Code Book, and may be cited as such.

 

(b) Exceptions to the incorporation by reference are as follows:

 

(1) Section 1-201.10(B)(31)(a)(i) Delete: [Such as a restaurant; satellite or catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and] and Substitute: [Such as a restaurant; central preparation facility; catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending (location) operation, if the operation provides potentially hazardous foods; conveyance used to transport people; institution; or food bank; and];

 

(2) Section 1-201.10(B)(31)(b)(i) Delete: [An element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and] and Substitute: An element of the operation such as a transportation vehicle or a satellite catered feeding location, a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority];

 

(3) Section 1-201.10(B)(31)(c)(vi) Delete: [A kitchen in a private home, such as a small family daycare provider; or a bed-and-breakfast operation that prepares and offers food to guests if the home is owner occupied, the number of available guest bedrooms does not exceed 6, breakfast is the only meal offered, the number of guests served does not exceed 18, and the consumer is informed by statements contained in published advertisements, mailed brochures, and placards posted at the registration area that the food is prepared in a kitchen that is not regulated and inspected by the regulatory authority; or] and Substitute: [A kitchen in a private home, such as a small family daycare provider; or a bed-and-breakfast operation that prepares and offers food to guests if the home is owner occupied, the number of available guest bedrooms does not exceed 4, breakfast is the only meal offered, the number of guests served does not exceed 12, and the consumer is informed by statements contained in published advertisements, mailed brochures, and placards posted at the registration area that the food is prepared in a kitchen that is not regulated and inspected by the regulatory authority];

 

(4) Section 2-101.11 Assignment. Delete: [The PERMIT HOLDER shall be the PERSON IN CHARGE or shall designate a PERSON IN CHARGE and shall ensure that a PERSON IN CHARGE is present at the FOOD ESTABLISHMENT during all hours of operation.] and Substitute: [The PERMIT HOLDER shall be the PERSON IN CHARGE or shall designate a PERSON IN CHARGE and shall ensure that a PERSON IN CHARGE is present at the FOOD ESTABLISHMENT during all hours of operation The PERSON IN CHARGE must be a person knowledgeable in the processes of the food service operation or PERSON IN CHARGE must be certified by either a nationally recognized food safety manager training or manager training from the KCMO Health Department. Certification of PERSON IN CHARGE will be authorized for five (5) years. In each food preparation area within a permitted facility, a PERSON IN CHARGE must be actively engaged in the supervision and monitoring of food preparation and serving by the employees in that area.];

 

(5) Section 2-103.11(L) Delete: [Employees are properly trained in FOOD safety as it relates to their assigned duties.] and Substitute: [Food employees shall obtain a food handlers permit within thirty (30) calendar days of employment in a food establishment];

 

(6) Delete Section 3-501.16(A)(2)(b)(ii) in its entirety;

 

(7) Delete Section 3-501.17(A)(2)(b) in its entirety ;

 

(8) Delete Section 4-301.12(C)(5) in its entirety;

 

(9) Delete Section 4-301.12(C)(6) in its entirety;

 

(10) Delete Section 4-301.12(D) and (E) in their entirety;

 

(11) Delete Section 4-603.16(C) in its entirety;

 

(12) Section 4-603.16(D)(2) Delete: [Wasted] and Substitute:[ Drained ];

 

(13) Section 5-103.12 Delete: [Water under pressure shall be provided to all fixtures, equipment, and non-food equipment that are required to use water except that water supplied as specified under 5-104.12(A) and (B) to a temporary food establishment or in response to a temporary interruption of a water supply need not be under pressure.] and Substitute:[ Water under pressure shall be provided to all fixtures, equipment, and non-food equipment that are required to use water except that water supplied as specified under 5-104.12(A) and (B) to a temporary food establishment or in response to a temporary interruption of a water supply need not be under pressure if approved. ];

 

(14) Section 5-203.11(C) Delete: [If approved, when food exposure is limited and handwashing lavatories are not conveniently available, such as in some mobile or temporary food establishments or at some vending machine locations, employees may use chemically treated towelettes for handwashing.] and Substitute: [If approved, when food exposure is limited to packaged food and handwashing lavatories are not conveniently available, such as in some mobile or temporary food establishments or at some vending machine locations, employees may use chemically treated towelettes and/or approved hand sanitizers for handwashing];

 

(15) Section 6-202.13(B) Delete: [Insect control devices shall be installed so that] and Substitute: [All other insect control devices shall be installed so that:];

 

(16) Section 6-202.17 Delete: [If located outside, a machine used to vend food shall be provided with overhead protection except that machines vending canned beverages need not meet this requirement.] and Substitute: [If located outside, a machine used to vend food shall be provided with overhead protection except that machines designed for outdoor use need not meet this requirement.];

 

(17) Section 6-301.14 Delete: [used by FOOD EMPLOYEES and shall be clearly visible to FOOD EMPLOYEES.] and Substitute: [and in all restrooms including public restrooms and shall be clearly visible to all FOOD EMPLOYEES and other users.];

 

(18) Delete Section 8-202.10 in its entirety;

 

(19) Delete Section 8-304.10 in its entirety;

 

(20) Section 8-304.11 (H) Delete: [Upgrade or replace refrigeration EQUIPMENT as specified under 3-501.15(C)] and Substitute: [Inform the REGULATORY AUTHORITY when changing, upgrading, modifying and updating existing menu and/or type of cuisine.]

 

(21) Section 8.304.11(I) Responsibilities of the Permit Holder: Delete: [Comply with directives of the REGULATORY AUTHORITY including timeframes for corrective actions specified in inspection reports, notices, orders, warnings, and obtain FOOD HANDLER CARDS for each EMPLOYEE who prepares, handles, or dispenses FOOD for human consumption, or who comes into contact with FOOD or FOOD preparation utensils as specified under 2-103.11(L), and other directives issued by the REGULATORY AUTHORITY in regard to the PERMIT HOLDERS FOOD ESTABLISHMENT, or in response to community emergencies.] and Substitute: [Comply with directives of the REGULATORY AUTHORITY including timeframes for corrective actions specified in inspection reports, notices, orders, warnings, and obtain FOOD HANDLER CARDS for each EMPLOYEE that prepares, handles, or dispenses FOOD for human consumption, or that comes into contact with FOOD or FOOD preparation utensils as specified under 2-103.11(L), and other directives issued by the REGULATORY AUTHORITY in regard to the PERMIT HOLDERS FOOD ESTABLISHMENT, or in response to community emergencies. Three (3) year FOOD HANDLER CARDS shall be obtained from the City of Kansas City, Missouri Health Department either upon completion of a FOOD HANDLERS Course through the Health Department or upon the Health Departments approval of a comparable FOOD HANDLER PERMIT or card from another jurisdiction. The following persons shall have a food handler card: cooks, including chef and sous chefs and all staff involved in the preparation of food. This provision does not apply to dishwashers, bus staff, cashiers, maitresd, servers, hostesses, front of house staff that do not come into direct contact with food, either through serving or the preparation thereof, or to bartenders and other staff persons who only mix and prepare drinks or dispense ice and who have a valid liquor permit, as these individuals will be required to obtain education from Regulated Industries as part of the application or renewal process for liquor permits. FOOD EMPLOYEES whose only preparation duties include dispensing ice, water, or drinks through automatic dispensers are likewise not required to meet this provision. At the time of inspection by authorized REGULATORY AUTHORITY inspectors, a certified food service operations manager on duty and, at a minimum, fifty per cent (50%) of required food handler staff, as outlined above, shall be in compliance with this requirement, or for food service operations where no manager is certified, eighty per cent (80%) of required food handler staff, as outlined above, shall be in compliance with this requirement.];

 

(22) Section 8-401.10(A) Delete: [Except as specified in (B) and (C) of this section, the REGULATORY AUTHORITY shall inspect a FOOD ESTABLISHMENT at least once every 6 months] and Substitute: [The REGULATORY AUTHORITY shall inspect a Food Establishment at intervals averaging six months.];

 

(23) Section 8-401.10(B)(2) Delete: [The FOOD ESTABLISHMENT is assigned a less frequent inspection frequency based on a written RISK-based inspection schedule that is being uniformly applied throughout the jurisdiction and at least once every six months the establishment is contacted by telephone or other means by the REGULATORY AUTHORITY to ensure that the establishment manager and the nature of the FOOD operation are not changed; or] and Substitute: [The REGULATORY AUTHORITY may inspect less frequently than six month average intervals if:

 

A. The FOOD ESTABLISHMENT is fully operating under an APPROVED and validated HACCP plan as specified under 8-103.12(A) and (B) and 8-201.14;

 

B. The FOOD ESTABLISHMENT is assigned a less frequent inspection frequency based on written RISK-based inspection schedule that is being uniformly applied throughout the jurisdiction; and

 

C. The establishments operation involves only coffee service and other unpackaged or prepackaged food that is not potentially hazardous such as carbonated beverages and snack food such as chips, nuts, popcorn, and pretzels.];

 

(24) Section 8-401.20 Delete: [Within the parameters specified in 8-401.10, the REGULATORY AUTHORITY shall prioritize, and conduct more frequent inspections based upon its assessment of a FOOD ESTABLISHMENTS history of compliance with this Code and the establishments potential as a vector of foodborne illness by evaluation:] and Substitute: [The REGULATORY AUTHORITY shall prioritize, and may conduct more frequent inspections based upon its assessment of a FOOD ESTABLISHMENTS history of compliance with this Code and the establishments potential as a vector of foodborne illness by evaluation.];

 

(25) Sections 8-402.40 Delete: [If denied access to a FOOD ESTABLISHMENT for an authorized purpose and after complying with 8-402.20, the REGULATORY AUTHORITY may issue, or apply for the issuance of, an inspection order to gain access as provided in LAW.] and Substitute :[ If denied access to a FOOD ESTABLISHMENT for an authorized purpose and after complying with 8-402.20, the REGULATORY AUTHORITY may;

 

(A) Issue, or apply for the issuance of, an inspection order to gain access as provided in LAW; or

 

(B) Issue Permit summary suspension order.];

 

(26) Section 8-403.10(B)(7) Insert: [Failure to provide proper documentation for FOOD HANDLER cards will be considered a critical violation.];

 

(27) Section 8-403.50 Delete: [Except as specified in 8-202.10] and Substitute: [The REGULATORY AUTHORITY may also publish information from the inspection report on the internet.];

 

(28) Section 8-405.11(C) Insert: [The REGULATORY AUTHORITY shall specify a time frame not to exceed 14 calendar days after an audit for the permit holder to provide proper documentation of FOOD HANDLER cards. Failure to provide documentation will result in the charge of a reinspection fee.];

 

(29) Section 8-701.20 (C) Insert: [A notice posted by the REGULATORY AUTHORITY at the public entrance to the FOOD ESTABLISHMENT shall be removed ONLY by the REGULATORY AUTHORITY];

 

(30) Section 8-804.10 Delete :[The REGULATORY AUTHORITY may summarily suspend a PERMIT to operate a FOOD ESTABLISHMENT if it determines through inspection, or examination of EMPLOYEES, FOOD, records, or other means as specified in this Code, that an IMMINENT HEALTH HAZARD exists.] and Substitute :[ (A)The REGULATORY AUTHORITY may summarily suspend a PERMIT to operate a FOOD ESTABLISHMENT if:

 

(1) The REGULATORY AUTHORITY determines through inspection, or examination of EMPLOYEES, FOOD, records, or other means as specified in this Code, that an Actual or IMMINENT HEALTH HAZARD exists;

 

(2) Operations, facilities, or equipment in the FOOD ESTABLISHMENT fail to comply with conditions specified in this Code;

 

(3) The PERMIT HOLDER does not comply with regulations specified in this Code; or

 

(4) Interference with the REGULATORY AUTHORITY in the performance of its duties has occurred.

 

(B) The REGULATORY AUTHORITY may revoke a FOOD ESTABLISHMENT permit after providing the PERMIT HOLDER an opportunity for a hearing if:

 

(1) Serious and repeated violation(s) of any requirements of these regulations according to the Code have occurred; or

 

(2) Repeated interference with, or assault upon a representative of the REGULATORY AUTHORITY in the performance of his/her duty, has occurred.

 

(3) PERMIT HOLDER fails to comply with a permit suspension order.

 

(C) The REGULATORY AUTHORITY may adopt and use a permit suspension process different than specified under the provisions of this Code.];

 

(31) Section 8-804.50 (B) Delete: [The suspended PERMIT shall be reinstated immediately if the REGULATORY AUTHORITY determines that the public health HAZARD or nuisance no longer exists. A notice of reinstatement shall be provided to the PERMIT HOLDER or PERSON IN CHARGE.] and Substitute:[(B) The REGULATORY AUTHORITY may initiate any one, or a combination of, compliance methods that include, but are not limited to:

 

(1) Holding an administrative conference with the food establishment PERMIT HOLDER or person in charge;

 

(2) Placing the FOOD ESTABLISHMENT on probation;

 

(3) Setting conditions for continued operation of the FOOD ESTABLISHMENT, by the PERMIT HOLDER, during the probation period;

 

(4) Requiring additional education and/or training of FOOD EMPLOYEES OR CONDITIONAL EMPLOYEES, management, and owners of the FOOD ESTABLISHMENT; and

 

(5) Completing a hazard analysis critical control point (HACCP) evaluation and requiring monitoring procedures be implemented for critical control points identified.

 

(C) The suspended PERMIT may be reinstated if the REGULATORY AUTHORITY determines that the public health HAZARD or nuisance no longer exists. A notice of reinstatement shall be provided to the PERMIT HOLDER or PERSON IN CHARGE.];

 

(32) Section 8-804-60 Insert: [8-804-60 Term of Revocation, Reinstatement of Permit

 

(A) Before revocation, the REGULATORY AUTHORITY shall notify, in writing, the PERMIT HOLDER of the specific reason(s) why the permit is to be revoked. The notice will state:

 

(1) The permit will be revoked at the end of the ten calendar days following the notice unless a written request for a hearing is filed with the REGULATORY AUTHORITY by the PERMIT HOLDER within such ten-day period; and

 

(2) If a request for a hearing is not filed by the PERMIT HOLDER within the ten-day period, the revocation of the permit becomes final.

 

(B) Any person whose food establishment permit has been revoked by the REGULATORY AUTHORITY, after a period of six months, may:

(1) Make written application for a new permit; and

 

(2) Request a hearing with the REGULATORY AUTHORITY to determine whether a new permit will be issued.

 

(C) The REGULATORY AUTHORITY may use a permit revocation process different than specified under the provisions of this Code];

 

(33) Section 8-805.30 (B)(1) Delete :[Requested as specified in 8-805.10, and] and Substitute :[ Requested as specified in 8-805.10 and 8-804.60, and ];

 

(34) Delete Section 8-805.10 (A) in its entirety;

 

(35) Section 8-805.10 Delete: [Response to Notice of Hearing or Request for Hearing, Administration Basis and Time Frame. (A) A PERSON who receives a notice of hearing for an administrative remedy as specified in Part 8-7, 8-801.10, or 8-805.30(A) and elects to respond to the notice shall file a response to notice as specified in 8-805.20 within 7 calendar days after service. (B) A PERMIT applicant may request a hearing regarding the disposition of an application for a new or revised PERMIT if the REGULATORY AUTHORITY does not issue or deny the PERMIT within the time frame specified in LAW. (C) A PERMIT HOLDER may request a hearing to address concerns about the REGULATORY AUTHORITY'S denial of application for a PERMIT or request for a VARIANCE, or compliance actions, except that a hearing request does not stay the REGULATORY AUTHORITY'S RESTRICTION or EXCLUSION of EMPLOYEES specified in 8-501.10 - 8-501.40, a hold order specified in 8-803.10, or the imposition of a summary suspension specified in 8-804.10. (D) A PERSON desiring a hearing in response to a denial of an application for PERMIT or an adverse administrative determination shall submit a hearing request to the REGULATORY AUTHORITY within 10 calendar days of the date of the denial, inspection, or compliance action, unless the REGULATORY AUTHORITY specifies in certain situations that the request shall be submitted within a shorter period of time.] and Substitute :[Request for Hearing, Administration Basis and Time Frame. (A) A PERMIT applicant may request a hearing regarding the disposition of an application for a new or revised PERMIT if the REGULATORY AUTHORITY does not issue or deny the PERMIT within the time frame specified in LAW.
(B) A PERMIT HOLDER may request a hearing to address concerns about the REGULATORY AUTHORITY'S denial of application for a PERMIT or request for a VARIANCE, or compliance actions, except that a hearing request does not stay the REGULATORY AUTHORITY'S RESTRICTION or EXCLUSION of EMPLOYEES specified in 8-501.10 - 8-501.40, a hold order specified in 8-803.10, or the imposition of a summary suspension specified in 8-804.10.
(C) A PERSON desiring a hearing in response to a denial of an application for PERMIT or an adverse administrative determination shall submit a hearing request to the REGULATORY AUTHORITY within 10 calendar days of the date of the denial, inspection, or compliance action, unless the REGULATORY AUTHORITY specifies in certain situations that the request shall be submitted within a shorter period of time.];

 

(36) Section 8-805.20 Delete: [Response to a Notice of Hearing or Request for Hearing, Required Form and Contents. A response to a hearing notice or a request for hearing as specified in 8-805.10 shall be in written form and contain the following:

 

(A) If a response to notice of hearing,

(1) An admission or denial of each allegation of fact;

 

(2) A statement as to whether the respondent waives the right to a hearing; and may also contain

 

(3) A statement of defense, mitigation, or explanation concerning any allegation of fact; and

 

(4) A request to the REGULATORY AUTHORITY for a settlement of the proceeding by consent agreement, if the REGULATORY AUTHORITY will provide this opportunity.

 

(B) If a request for hearing,

(1) A statement of the issue of fact specified in 8-805.30(B) for which the hearing is requested; an

 

(2) A statement of defense, mitigation, denial, or explanation concerning each allegation of fact

 

(C) If either a response to notice of hearing or a request for a hearing,

 

(1) A statement indicating whether the presence of witnesses for the REGULATORY AUTHORITY is required; and

 

(2) The name and address of the respondent's or requester's legal counsel, if any.] and Substitute :[Request for Hearing, Required Form and Contents.
A request for hearing as specified in 8-805.10 shall be in written form and contain the following:

 

(A) A statement of the issue of fact specified in 8-805.30(B) for which the hearing is requested; an

 

(B) A statement of defense, mitigation, denial, or explanation concerning each allegation of fact

 

(C) A statement indicating whether the presence of witnesses for the REGULATORY AUTHORITY is required; and

 

(D) The name and address of the respondent's or requester's legal counsel, if any.];

 

(37) Section 8-805.50 Delete: [Timeliness, Appeal Proceeding Within 5 Business Days, Other Proceeding Within 30 Calendar Days.
(A) The REGULATORY AUTHORITY shall afford a hearing:
(1) Except as provided in (B) of this section, within 5 business days after receiving a written request for an appeal hearing from:
(a) A PERSON who is EXCLUDED by the REGULATORY AUTHORITY from working in a FOOD ESTABLISHMENT as specified in 8-501.10 - 8-501.40, (b) A PERMIT HOLDER or PERSON whose FOOD is subject to a hold order as specified in Subpart 8-803, or (c) A PERMIT HOLDER whose PERMIT is summarily suspended as specified in Subpart 8-804; and (2) Within 30 calendar days but no earlier than 7 calendar days after the service of a hearing notice to consider administrative remedies for other matters as specified in 8-805.10(C) or for matters as determined necessary by the REGULATORY AUTHORITY. (B) A PERMIT HOLDER or PERSON who submits a request for a hearing as specified in Subparagraphs (A)(1)(a)-(c) of this section may waive the prompt hearing in the written request to the REGULATORY AUTHORITY.] and Substitute :[ Timeliness, Appeal Proceeding Within 10 Business Days, Other Proceeding Within 30 Calendar Days. (A) The REGULATORY AUTHORITY shall afford a hearing: (1) Except as provided elsewhere in this section, within 10 business days after receiving a written request for an appeal hearing from:
(a) A PERSON who is EXCLUDED by the REGULATORY AUTHORITY from working in a FOOD ESTABLISHMENT as specified in 8-501.10 - 8-501.40, (b) A PERMIT HOLDER or PERSON whose FOOD is subject to a hold order as specified in Subpart 8-803, or
(c) A PERMIT HOLDER whose PERMIT is summarily suspended as specified in Subpart 8-804, or (d) A PERMIT HOLDER whose PERMIT is subject to Revocation as specified in Subpart 8-804.60;
(2) Within 30 calendar days but no earlier than 7 calendar days after the service of a hearing notice to consider administrative remedies for other matters as specified in 8-805.10(C) or for matters as determined necessary by the REGULATORY AUTHORITY. (B) A PERMIT HOLDER or PERSON who submits a request for a hearing as specified in Subparagraphs (A)(1)(a)-(c) of this section may waive the prompt hearing in the written request to the REGULATORY AUTHORITY];

 

(38) Delete Section 8-805.60 in its entirety;

 

(39) Delete Section 8-805.70 in its entirety;

 

(40) Delete Section 8-805.80 in its entirety;

 

(41) Delete Section 8-805.90 in its entirety;

 

(42) Section 8-806.10 Delete:[The REGULATORY AUTHORITY may appoint a PERSON such as an adjudicator, administrative LAW judge, or examiner, hereinafter referred to as a hearing officer, who presides over a proceeding initiated by the REGULATORY AUTHORITY or by a PERSON contesting an action of the REGULATORY AUTHORITY, to perform one or more of the following:] and Substitute:[The REGULATORY AUTHORITY may appoint a PERSON such as the Director of Health, an adjudicator, administrative LAW judge, or examiner, hereinafter referred to as a hearing officer, who presides over a proceeding initiated by the REGULATORY AUTHORITY or by a PERSON contesting an action of the REGULATORY AUTHORITY, to perform one or more of the following:];

 

(43) Delete Section 8-806.20 in its entirety;

 

(44) Section 8-806.30 Delete: [8-806.30 Powers, Administration of Hearings.

 

(A) A hearing officer shall have the following powers in a hearing in which the hearing officer presides:

 

(1) Setting and conducting the course of a hearing requested in accordance with or authorized by this Code,

 

(2) Issuing subpoenas in the name of the REGULATORY AUTHORITY at the request of a party to a hearing, administering oaths and affirmations, examining witnesses, receiving evidence,

 

(3) Approving a consent agreement on the issues involved in the hearing entered into by the REGULATORY AUTHORITY and the respondent after the respondent receives a hearing notice,

 

(4) Sustaining, modifying, rescinding, or vacating an order or directive of the REGULATORY AUTHORITY in an appeal hearing proceeding, and if the order or directive is sustained, ordering appropriate measures to execute the REGULATORY AUTHORITY'S order or directive; and

 

(B) Unless a party appeals to the head of the REGULATORY AUTHORITY within 15 days of the hearing or a lesser number of days specified by the hearing officer:

 

(1) Rendering a binding decision and final order in a proceeding after conducting a hearing, if the respondent has not waived the right to a hearing, and

 

(2) Then notifying the respondent of the decision and the order which contains the findings and conclusions of LAW. ]. and Substitute:[8-806.20 Powers, Administration of Hearings.

(A) A hearing officer shall have the following powers in a hearing in which the hearing officer presides:

(1) Setting and conducting the course of a hearing requested in accordance with or authorized by this Code,

 

(2) Issuing subpoenas in the name of the REGULATORY AUTHORITY at the request of a party to a hearing, administering oaths and affirmations, examining witnesses, receiving evidence,

 

(3) Approving a consent agreement on the issues involved in the hearing entered into by the REGULATORY AUTHORITY and the respondent after the respondent receives a hearing notice,

 

(4) Sustaining, modifying, rescinding, or vacating an order or directive of the REGULATORY AUTHORITY in an appeal hearing proceeding, and if the order or directive is sustained, ordering appropriate measures to execute the REGULATORY AUTHORITY'S order or directive; and

 

(5) Rendering a binding decision and final order in a proceeding after conducting a hearing, if the respondent has not waived the right to a hearing, and

 

(6) Then notifying the respondent of the decision and the order which contains the findings and conclusions of LAW. ];

 

(45) Section 8-806.40 Delete: [8-806.40 Powers, Administrative Remedies.] and Substitute: [8-806.30 Powers, Administrative Remedies.];

 

(46) Section 8-806.40(B) Delete : [and assessing, levying, and ordering a reasonable civil penalty, according to LAW and not to exceed the amount specified in section 8-813.10(B) for each violation of this Code that is alleged and found to be committed, and calculated based on each day a violation occurs as specified in section 8-813.10(C)];

 

(47) Section 8-806.40(D) Delete: [and assessing, levying, and ordering a reasonable civil penalty, in accordance with LAW and not to exceed the amount specified in section 8-813.10(B) for each violation of this Code that is alleged and found to be committed, and calculated based on each day a violation occurs as specified in section 8-813.10(C)]; and

 

(48) Delete Section 8-813.10 (B) and (C) in its entirety.

 

Sec. 30-72. Definitions.

 

REGULATORY AUTHORITY (as used in the 2005 Food Code) shall mean the director of health or the directors authorized representative.

 

FOOD EMPLOYEE (as used in the 2005 Food Code) shall also include FOOD HANDLER.

 

FOOD HANDLER means an employee who prepares, handles, or dispenses food for human consumption, or who comes into contact with food or food preparation utensils as specified under 2-103.11(L).

 

Sec. 30-73. Permits.

 

Section 8-301.11 of the 2005 Food Code is amended to read as follows: A PERSON may not operate a FOOD ESTABLISHMENT without a valid PERMIT to operate issued by the REGULATORY AUTHORITY. A PERSON is required to apply for and obtain and pay for a separate FOOD ESTABLISHMENT PERMIT for each of the types of FOOD ESTABLISHMENT operations listed in subsections (1) through (10):

 

(1)               Ice Cream Vendor Permit: issued to a PERSON who sells prepackaged frozen ice cream products or novelties from a motor vehicle designed for that purpose.

 

(2)               Market Type Establishment Permit: issued to an establishment wherein any place or section of a place where FOOD and FOOD products are offered to the CONSUMER and intended for off-PREMISE consumption. The term includes delicatessens that offer prepared FOOD in bulk quantities only. The term does not include establishments, which handle only prePACKAGED, non-POTENTIALLY HAZARDOUS FOODS; roadside markets that offer only fresh fruits and fresh vegetables for sale; restaurant type establishments; or FOOD and BEVERAGE VENDING MACHINES.

 

(3)               Mobile Food Service Permit: issued to a vehicle-mounted restaurant type establishment designed to be readily movable.

 

(4) Pushcart Permit: issued to a PERSON using a non-self-propelled vehicle limited to serving non-POTENTIALLY HAZARDOUS FOODS or commissary-wrapped FOOD maintained at proper temperatures, or limited to the preparation and serving of frankfurters.

 

(5) Restaurant Type Establishment permit: issued to a place or section of a place where FOOD is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the PREMISES and regardless of whether there is a charge for the FOOD. The term includes delicatessens that offer prepared FOOD in individual service portions. The term does not include private homes where FOOD is prepared or served for individual family consumption, market type establishments, the location of FOOD VENDING MACHINES, supply vehicles, and operations outside the walls of the physical facility such as smokers, Bar-B-Que grills and bars.

 

(6) Temporary Food Service Establishment Permit: issued to a restaurant type establishment that operates at a fixed location for a period of time of not more than 14 consecutive days in conjunction with a single event or celebration. Those establishments whose principle mode of business is not the sale of FOOD or BEVERAGES who in conjunction with their special event occasionally offer non-POTENTIALLY HAZARDOUS FOODS such as pretzels and peanuts free of charge to their clientele no more frequently than once per month are exempt from obtaining a temporary PERMIT. All FOOD served shall be obtained from sources that comply with all laws that relating to FOOD and FOOD labeling.

 

(7)               Truck Sales Vendor Permit: issued to a PERSON who sells prePACKAGED frozen FOODS at retail from a motor vehicle that is equipped with a refrigeration unit capable of maintaining a temperature of 0 degrees Fahrenheit.

 

(8) Catering Permit: issued to a permitted RESTAURANT TYPE ESTABLISHMENT who can apply for a catering license issued by the REGULATORY AUTHORITY to conduct FOOD service activities outside of their PERMITTED establishments. CATERING PERMITS will be issued to those establishments who have demonstrated proper FOOD safety knowledge relating to the FOOD preparation and transportation techniques. The REGULATORY AUTHORITY reserves the right to deny or revoke CATERING PERMITS to those establishments that have not demonstrated the ability to safety operate FOOD operations off-site.

 

(9) Seasonal Vendor Permit: issued to an operation that serves only non-POTENTIALLY HAZARDOUS FOODS or prePACKAGED POTENTIALLY HAZARDOUS FOOD offered for retail sale that is properly LABELED and kept in mechanical refrigeration EQUIPMENT capable of maintaining the product at 41 degrees (F) or below. This PERMIT is valid for a period not to exceed 6 months from date of issuance. SEASONAL PERMITS will not be renewed on a consecutive basis.

 

(10) Concession Stand/Kiosk Permit: issued to an operation that prepares and serves food and beverages with a limited menu approved by the REGULATORY AUTHORITY and with a permanent setup including power and water.

 

Sec. 30-74. Penalties.

 

Section 8-811.10 of the 2005 Food Code is amended to read as follows:

 

(a) The REGULATORY AUTHORITY may seek to enforce the provisions of this Code and its orders by instituting proceedings as provided in LAW against the PERMIT HOLDER or other PERSONS who violate its provisions.

 

(b) Any PERSON who violates a provision of this Code may be punished by a fine of not more than $500.00, or by imprisonment not exceeding six months, or both such fine and imprisonment. Each day on which a violation occurs is a separate violation under this section.

 

Sec. 30-75. Fees.

(A) Directors authority . The director is authorized to charge for the actual cost of providing the Food Code Book to any user and the actual cost of providing any FOOD protection education classes and FOOD HANDLER cards.

(B) Fee schedule. All fees shall be paid in accordance with the fee schedule contained in this subsection (b). Restaurant type establishments shall pay fees based on the number of its EMPLOYEES and market type establishments shall pay fees based on the total square footage of the market type operation within the building. The appropriate fee shall be determined on the date of the application. TEMPORARY FOOD SERVICE ESTABLISHMENTS shall pay fees based on the number of days of operation and each TEMPORARY FOOD SERVICE ESTABLISHMENT at any given event or location is required to obtain and pay for a permit in the amount required by the fee schedule of this subsection (b) prior to beginning operation. Truck sales vendor, mobile FOOD service/pushcart and ice cream vendor shall pay the fees in the fee schedule that correspond to truck sales vendor, mobile FOOD service/pushcart and ice cream vendor for each vehicle operated. Catering and Seasonal vendor permit holders shall pay the fees in the fee schedule that correspond to catering and seasonal vendor permits.

 

FEE SCHEDULE
						Permit Fee	Plan Review Fee	First Reinspection Fee	Each Additional Reinspection Fee

 

Restaurant type establishments
	0--5 employees	$275.00	$70.00	$75.00	$100.00
	6--9 employees	345.00	85.00	75.00	150.00
	10--40 employees	410.00	105.00	75.00	200.00
	41 or more employees	480.00	120.00	75.00	250.00
Catering		250.00	N/A	75.00	75.00
Market Type Establishments
	Under 3,000 sq. ft.	205.00	50.00	75.00	100.00
	3,000--30,000 sq. ft.	410.00	105.00	75.00	150.00
	30,001--40,000 sq. ft.	550.00	140.00	75.00	200.00
	40,001--60,000 sq. ft.	825.00	205.00	75.00	250.00
	Over 60,000 sq. ft.	1,030.00	260.00	75.00	250.00
Truck sales vendor		205.00	N/A	75.00	100.00
Mobile food service/pushcart		140.00	N/A	75.00	100.00
Ice cream vendor		25.00	N/A	75.00	100.00
Temporary food service
	1 day operation	50.00	N/A	50.00	100.00
	2 days operation	75.00	N/A	50.00	100.00
	3--14 days operation	150.00	N/A	50.00	100.00
	Not for profit-temp food service	25.00	N/A	50.00	75.00
Seasonal vendor	6 months	150.00	N/A	75.00	75.00

 

(1) Annual permits. All permits are annual permits and shall be valid from January 1 through December 31, except for TEMPORARY FOOD SERVICE ESTABLISHMENT PERMITS and seasonal vendor permits. All PERSONS who operate a restaurant type establishment, market type establishment, mobile FOOD service or pushcart or as a truck sales vendor or ice cream vendor shall obtain and pay for an annual PERMIT in the amount required by the fee schedule of this subsection (B) prior to beginning operation. All PERSONS are required to obtain an annual PERMIT for each type of operation as defined in subsection (A) of this section and if a location has multiple operations or more than one type of operation, a PERMIT must be obtained and paid for each operation in the amount required by the fee schedule of this subsection (B) prior to beginning operation. Any PERSON who operates as a truck sales vendor, catering, ice cream vendor, mobile FOOD service or pushcart vendor shall obtain and pay for an annual PERMIT for each vehicle in the amount required by the fee schedule of this subsection (B) prior to beginning operation. If a location has multiple FOOD ESTABLISHMENTS or types of FOOD ESTABLISHMENTS as specified in subsections (1) through (9), the PERSON must apply, obtain and pay for a separate permit for each operation.

 

(2) Plan review fees. When a PERSON is required to submit plans for the construction, conversion or remodeling of any FOOD establishment as defined by the 2005 Food Code to the health department for review as specified under section 8-201.11 of the 2005 Food Code, the PERSON shall pay a plan review fee in the amount set forth in the fee schedule of this subsection (B).

 

(3) Lost permit fee . There shall be a $15.00 charge to replace a lost PERMIT.

 

(4) Processing fee for initial permit and change in ownership . If a PERSON is applying for an initial PERMIT or new PERMIT due to a change in ownership for a restaurant type establishment, market type establishment or truck sales vendor, the PERSON shall pay a processing fee of $50.00 per PERMIT. If a PERSON is applying for an initial PERMIT or a new PERMIT due to a change in ownership for a mobile unit or push cart, catering or ice cream vendor establishment, the PERSON shall pay a processing fee of $25.00 per PERMIT. The processing fee is in addition to all other fees.

 

(5) Initial permit fees. If an application is for an initial PERMIT, the PERSON shall estimate the number of EMPLOYEES who will be working at the FOOD ESTABLISHMENT or the square footage. If the estimate is inaccurate, the PERMIT HOLDER shall amend the application and pay the appropriate fee. In the event an initial PERMIT application is filed to begin operation anytime during the period of October 1 through December 31 for a restaurant type or market type establishment, the PERMIT fee shall be 25 percent of the annual fee.

 

(6) Late Fee. PERMIT renewals not submitted to the Health Department by January 31 will be charged a $25.00 per month late fee. April 1st all establishments that have not paid the appropriate fee may be subject to a cease operation until all fees have been paid.

 

(7)               Exemption. No charge shall be made for issuance of a PERMIT, license or certificate to a FOOD service establishment operated by a public tax-supported entity, such as a public school district.

 

(C) The city council shall have the authority to annually adjust all fees in subsection (B) to reflect an increase equal to an increase in the consumer price index (all items/all urban consumers/Kansas City, Missouri-Kansas) published by the United States Department of Labor, Bureau of Labor Statistics if the fees imposed in subsection (b) will not cover the cost of the city's FOOD protection program. The authorization for the city council to annually increase fees to cover the costs of the FOOD protection program shall be cumulative and the failure of the city council to raise fees in any one year shall not waive the city council's authority to cumulatively raise fees by the consumer price index for missed years as long as the funds are used to fund the city's cost of the FOOD protection program. The adjustments shall be made annually by the city council in conjunction with the adoption of the annual budget of the city by filing a notice with the city clerk.

 

(D) Refunds. There shall be no refund of any fee paid pursuant to this section.];

 

Sec. 30-76. Vending Machines.

(A) Definitions. The following definitions apply to this section:

(1) Operator means the PERSON that is legally responsible for the operation of the VENDING MACHINE such as the owner, owners agent or any other PERSON.

 

(2) Vending Machine means a self-service device that, upon insertion of a coin, paper currency, token, card, or key, or by optional manual operation, dispenses unit servings of FOOD in bulk or in PACKAGES without the necessity of replenishing the device between each vending operation.

 

(B) All operators of VENDING MACHINES are required to operate and maintain VENDING MACHINES in compliance with the 2005 Food Code but are not required to obtain a permit for the VENDING MACHINES. The director is not required to inspect VENDING MACHINES but may inspect a VENDING MACHINE for any reason. The operator shall provide access to the VENDING MACHINE and cooperate with the director.

 

Sec. 30-77. Recognition for Quality Food Establishments.

The director of Health is hereby authorized to create a non-monetary quality award(s) that will be presented to FOOD ESTABLISHMENTS, as defined by the Kansas City Missouri Food Code Book, that continuously demonstrate excellent compliance with the Kansas City Missouri Food Code Book. The director shall develop criteria for the award(s) utilizing standards set forth in the Kansas City Missouri Food Code Book and may incorporate recommendations from the FOOD Protection Advisory Committee. The award(s) may be in the form of a certificate or other similar format issued by the director, which may be displayed in the FOOD ESTABLISHMENTS PREMISES. The award(s) shall be property of the city and may be reclaimed at any time by the director when the FOOD ESTABLISHMENT fails to meet the standards of excellence established the director.

_____________________________________________

 

Approved as to form and legality:

 

 

___________________________________

Joseph Guarino

Assistant City Attorney