2021-74 O - Amending Chapter 6 Article 6.04 Food, Food Establishments, Mobile Food Units, TemporaryTOWN OF PROSPER, TEXAS
ORDINANCE NO. 2021-74
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF PROSPER,
TEXAS, AMENDING CHAPTER 6, "HEALTH AND SANITATION," OF THE
TOWN'S CODE OF ORDINANCES BY REPEALING EXISTING ARTICLE 6.04,
"FOOD, FOOD ESTABLISHMENTS, MOBILE FOOD UNITS, AND
TEMPORARY FOOD ESTABLISHMENTS," AND REPLACING IT WITH A
NEW ARTICLE 6.04, "FOOD, FOOD ESTABLISHMENTS, MOBILE FOOD
UNITS, AND TEMPORARY FOOD ESTABLISHMENTS"; PROVIDING FOR
REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING A
PENALTY FOR VIOLATION; PROVIDING FOR AN EFFECTIVE DATE; AND
PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF.
WHEREAS, the Town Council of the Town of Prosper, Texas ("Town Council"), has
investigated and determined that Article 6.04, "Food, Food Establishments, Mobile Food Units,
and Temporary Food Establishments," of Chapter 6, "Health and Sanitation," of the Town's
Code of Ordinances should be revised; and
WHEREAS, the Town Council hereby finds and determines that the new rules
addressed herein are in accordance with applicable state regulations, found in Chapter 228 of
the Texas Administrative Code, as amended.
WHEREAS, these new rules are enacted for the protection of public health and food
safety and will be in the best interests of the citizens of the Town.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, THAT:
SECTION 1
The findings set forth above are incorporated into the body of this Ordinance as if fully
set forth herein.
SECTION 2
From and after the effective date of this Ordinance, existing Article 6.04, "Food, Food
Establishments, Mobile Food Units, and Temporary Food Establishments," of Chapter 6,
"Health and Sanitation," of the Town's Code of Ordinances is hereby repealed in its entirety and
replaced with a new Article 6.04, "Food, Food Establishments, Mobile Food Units, and
Temporary Food Establishments," to read as follows:
"ARTICLE 6.04. FOOD, FOOD ESTABLISHMENTS, MOBILE FOOD UNITS, AND
TEMPORARY FOOD ESTABLISHMENTS
Sec.6.04.001 Purpose
The purpose of this Article is to protect the public health by establishing uniform requirements
for food, food establishments, mobile food units, and temporary food establishments.
Sec. 6.04.002 Adoption and amendments of State Health Rules
Ordinance No. 2021-74, Page 1
(a) The Texas Food Establishment Rules ("Rules"), contained in Chapter 228 of the Texas
Administrative Code, Title 25, as adopted by the Texas Board of Health, and as they may be
modified or amended by the Texas Board of Health from time to time, are hereby adopted,
except as amended, modified, and deleted by this Article, as the minimum standards for food,
food establishments, mobile food establishments, and temporary food establishments within the
corporate town limits of the Town of Prosper, Texas; provided, however, that in said rules the
words "municipality of" shall be understood to refer to the Town of Prosper. A copy of the
Texas Food Establishment Rules hereby adopted shall be on file in the office of the Town
Secretary. The Town amends the rules as follows:
(b) Section 228.2, "Definitions," of the Rules is amended to include the following:
Certified food manager is a supervisor of a food service establishment that has obtained a
certified food manager certification though the Texas Department of State Health Services.
Conditional employee is a potential food employee to whom a job offer is made, conditional
upon responses to subsequent medical questions or examinations designed to identify potential
food employees who may be suffering from a disease that can be transmitted through food and
done in compliance with Title 1 of the Americans with Disabilities Act (ADA) of 1990, as
amended.
Food means any raw, cooked, or processed edible substance, ice, beverage, or ingredient used
or intended for use or sale, in whole or in part, for human consumption.
Food employee is an individual working with unpackaged food, food equipment or utensils, or
food contact surfaces.
Food establishment shall include the terms, "mobile food establishments" and "temporary food
establishments" as a "food establishment."
Foodborne illness is an incident in which two or more persons experience a similar illness,
usually gastrointestinal in nature, after ingestion of a common food, and epidemiological
analysis implicates the food as the source of illness.
Imminent Health hazard is a significant threat or danger to health due to a practice,
circumstance, or event which creates a situation that would likely lead to injury, or a food borne
illness, as determined by the regulatory authority, as hereinafter defined. Imminent health
hazards include but are not limited to: lack of hot water, no electrical power, sewage back up,
no water service, rodent or insect infestation as determined by the regulatory authority, or a
food establishment receives more than 30 demerits during an inspection.
Prosper, the Town. or the Town of Prosper means the Town of Prosper, Texas.
RegulatoryBegulatory authority means the registered Sanitarian of the Town of Prosper or other designee
having jurisdiction over food establishments.
Sec. 6.04.003 Review of plans
(a) Whenever a food establishment is constructed or extensively remodeled and whenever
an existing structure is converted to use as a food establishment, properly prepared plans and
specifications for such construction, remodeling or conversion shall be submitted to the
regulatory authority for review before work is begun. A plan review fee as established in
appendix A to this code, as it exists or may be amended must be paid at time of application.
Extensive remodeling means that twenty percent (20%) or greater of the area of the food
establishment is to be remodeled. The plans and specifications shall indicate the proposed
Ordinance No. 2021-74, Page 2
layout, equipment arrangement, mechanical, electrical and plumbing plans and construction
materials of work areas, and the type and model of proposed fixed equipment and facilities. The
regulatory authority will approve the plans and specifications if they meet the requirements of
the rules adopted by this article as amended. The approved plans and specifications must be
followed in construction, remodeling and/or conversion.
(b) Failure to follow the approved plans and specifications will result in a permit denial,
suspension or revocation of a permit.
(c) Additional plan review required by changes, additions, or revisions to approved plans,
will be assessed a plan review fee as established in appendix A to this code, as it exists or may
be amended.
Sec. 6.04.004 Catastrophe/Imminent health hazard
In the event of any imminent health hazard, the owner of a food establishment must
immediately notify the regulatory authority. It will be required that the food establishment cease
operations. It shall not resume until such times as a reinspection determines that conditions
responsible for the requirement to cease operations no longer exists.
Sec. 6.04.005 Pests and Pesticides
Only individuals licensed by the Texas Structural Pest Control Board may apply pest control
products in a food establishment. A minimum of monthly pest control services is required.
Sec. 6.04.006 Retention of certain records required
The following records shall be retained on premises by food establishments, available for
inspection, and copying by the regulatory authority:
(a) Grease trap pumping/manifest tickets shall be retained for a period of three years;
(b) Professional pest control records shall be retained for a period of one year; and
(c) When time is used as a public health control measure or the establishment has been
required to establish a HACCP/risk control plan, the documentation must be retained for a
period of one year.
Sec. 6.04.007 Handwashing lavatory and water temperature
(a) A hand sink shall be located within 25 unobstructed, linear feet to each food preparation
and utensil washing areas.
(b) A hand sink must be equipped to provide water a t a temperature of at least 38 degrees
Celsius (100 degrees Fahrenheit) under pressure through a mixing valve or a combination
faucet within 20 seconds.
(c) A self -closing, slow -closing, or metering faucet shall provide a flow of water for at least
15 seconds without the need to reactivate the faucet.
Sec. 6.04.008 Physical Facilities
(a) Only commercial grade equipment or utensils that meet or exceed National Sanitation
Foundation (NSF) standards or the equivalent will be approved. The pre -opening checklist and
Ordinance No. 2021-74, Page 3
guidelines is a reference of approved materials for finishes in new food service facilities,
extensively remodeled facilities, or facilities undergoing change of ownership.
(b) Outdoor refuse containers must remain closed at all times when not in continuous use.
Containers must be emptied by an approved commercial service at a frequency to maintain the
premises of the food establishment free of litter, garbage, odor, rodents, and insects. The
Regulatory Authority may determine the frequency of garbage pickup if necessary.
(c) Outer openings must be protected. Openings to the outdoors must be protected against
entry of insects and rodents by:
1) Closed, tightfitting windows and solid, self -closing, tightfitting doors;
2) Installation of air currents and at all rear doors used for the loading and
unloading of food products, doors that open to the outside directly off food prep areas,
ware wash areas, or food storage areas, and at all drive -through windows.
3) Installation of 16 mesh, 25.4 millimeters (16 mesh to one inch) screens on
window and doors that are kept open for ventilation or other purposes.
4) Properly sealed perimeter walls and roofs of the establishment
(d) A grease interceptor/trap is to be located outside of the building and must be readily and
easily accessible for cleaning and inspection. The necessity and size of the grease
interceptor//trap to be installed in a food establishment shall be a minimum of 1,000 gallons or
determined by the Health Authority. All grease interceptors/traps must be pumped/cleaned by a
licensed waste hauler. The grease interceptors/traps must be pumped empty at a frequency of
not less than twice a year or as deemed necessary by the Regulatory Authority.
Sec. 6.04.009 Dogs in Outdoor Dining Areas of a Food Establishment
Pursuant to Section 437.025 of the Texas Health and Safety Code, as amended, dogs may be
allowed in outdoor dining areas of a food establishment if:
(a) The establishment posts a sign in a conspicuous location in the area stating
that dogs are allowed;
(b) The customer and dog access the area directly from the exterior of the
establishment;
(c) The dog does not enter the interior of the establishment;
(d) The customer keeps the dog on a leash and controls the dog;
(e) The customer does not allow the dog on a seat, table, countertop, or similar
surface; and
(f) In the area, the establishment does not:
(1) prepare food; or
(2) permit open food other than food that is being served to a customer; and
(g) The requirements specified in this section do not apply to service animals or
service animals in training.
Sec. 6.04.010 Inspections -Score
(a) All food establishments shall be inspected and scored uniformly using an official
inspection form, as provided by the Texas Department of State Health Services. The sanitation
score of the establishment shall be determined by the health authority using the scoring method
Ordinance No. 2021-74, Page 4
provided on the inspection form. Establishments with a sanitation score below 70 percent will be
closed until such time that a reinspection is made and all corrective action on all identified
critical violations are complete. Corrective action on all other violations must be initiated within
48 hours. The establishment shall remain closed until reopened by the health authority.
(b) Denial of access to the health authority shall be cause for suspension or revocation of
the food establishment permit.
Sec. 6.04.011 Certified food protection manager and food handler requirements
(a) There shall be a certified food manager on site, present on the premises during
operations and available for food service employees/personnel that may have questions about
food service operations at each permitted establishment. Certification must be obtained by
passing an examination approved by the Texas Department of State Health Services and the
regulatory authority. Temporary food establishments and food establishments that serve, sell,
or distribute only prepackaged non -time and temperature controlled for safety foods and
beverages are exempt from this section.
(b) Upon termination or transfer of a certified food manager, the food establishment shall
employ another certified food protection manager within 30 days of the date of termination or
transfer. Certificates are not transferable from one person to another person.
(c) Every food service employee shall, within 30 days of the date of employment, be the
holder of a current valid food handler card/certificate approved by the Texas Department of
State Health Services.
Sec. 6.04.012 Procedure when infection is suspected
When the health authority has reasonable cause to suspect possible disease transmission by
an employee of a local food establishment, it may secure a morbidity history of the suspected
employee or make other investigation as indicated and shall take appropriate action. The
health authority may require any or all of the following measures:
(a) The immediate exclusion of the employees from employment in local food
establishments;
(b) The immediate closing of the local food establishment until, the health authority
determines no further danger of disease outbreaks exists;
(c) Restriction of the employee's services to areas of the establishment where there would
be no danger of transmitting disease; and/or
(d) Adequate medical and laboratory examination of the employee and other employees at
owner's expense.
Sec. 6.04.013 Employee health
It is the responsibility of the permit holder, person in charge, and conditional employees to
report to the person in charge information about their health and activities as they relate to
diseases that are transmittable through food. A food employee or conditional employee shall
report the information in a manner that allows the person in charge to reduce the risk of
foodborne disease transmission, such as the date of onset and an illness, or diagnosis of a
communicable disease by a medical professional.
Ordinance No. 2021-74, Page 5
Sec.6.04.014 Fees
The fees are established in appendix A to this code, as such fees exist or may be amended
Sec. 6.04.015 Suspension of Permit
(a) The regulatory authority may, without warning, notice or hearing suspend any permit to
operate a food establishment if the operation of the food establishment constitutes an imminent
hazard to public health. Suspension is effective upon service of notice. A food establishment
inspection report may serve as notice. When a permit is suspended, food operations shall
immediately cease. Whenever a permit is suspended, the holder of the permit shall be afforded
an opportunity for a hearing within ten (10) days of suspension.
(b) Whenever a permit is suspended, the holder of the permit, or the person in charge, shall
be notified in writing that the permit is, upon service of the notice, immediately suspended and
that an opportunity for a hearing will be provided if a written request for a hearing is filed with
the regulatory authority by the holder of the permit within ten (10) days. If no written request for
hearing is filed within ten (10) days, the suspension is sustained until compliance with this
article is met. A reinspection will be made by the regulatory authority to ensure compliance.
The request for a reinspection must be made to the regulatory authority and a reinspection fee
as established in appendix A to this code, as it exists or may be amended shall be paid to the
town before the inspection is performed. The regulatory authority may end the suspension at
any time if reasons for suspension no longer exist.
Sec. 6.04.016 Revocation of permit
(a) The regulatory authority may, after providing an opportunity for a hearing, revoke a
permit for serious and/or repeated violations of any of the requirements of this article and/or for
interference with the regulatory authority in the performance of its duties. Prior to revocation,
the regulatory authority shall notify the holder of the permit or the person in charge, in writing, of
the reason for which the permit is subject to revocation and that the permit shall be revoked at
the end of the ten (10) days following service of such notice, unless a written request for a
hearing is filed with the regulatory authority by the holder of the permit within such ten-day
period.
(b) If no request for hearing is filed within the ten-day period, the revocation of the permit
becomes final.
Sec. 6.04.017 Administrative process
(a) A notice, as required by this article, is properly served when it is delivered to the holder
of the permit or the person in charge, or when it is sent by registered or certified mail, return
receipt requested, to the last known address of the holder of the permit. A copy of the notice
shall be filed in the records of the regulatory authority.
(b) The regulatory authority shall conduct the hearings provided for in these rules at a time
and place designated by it. Based upon the recorded evidence of such hearing, the regulatory
authority shall make final findings, and shall sustain, modify or rescind any notice or order
considered in the hearing. The regulatory authority shall furnish a written report of the hearing
decision to the holder of the permit.
Sec.6.04.018 Appeal
Ordinance No. 2021-74, Page 6
All appeals from final suspension or revocation of a health permit shall be made in writing to the
town manager or his/her designee. The appeal shall be filed in writing within ten (10) days of
the occurrence of the suspension or revocation. The town manager or his/her designee shall
attempt to hear the appeal within (30) days after notice of the appeal. The town manager or
his/her designee shall have the power to reverse a decision of the regulatory authority where
he/she finds that such a reversal will not affect the health and/or welfare of the public. All
decisions of the town manager or his/her designee shall be subject to review by the town
council at one of its regularly scheduled meetings. The decision of the town manager or his/her
designee will be final unless reversed by the town council. The town council's failure to take
action upon any such appeal shall constitute approval of the decision by the town manager or
his/her designee.
Sec. 6.04.09 Penalty for violation
Any person, firm, corporation or business entity violating this article shall be deemed guilty of a
misdemeanor and, upon conviction thereof, shall be fined as provided in section 1.01.009 of this
code. Each continuing day's violation under this article shall constitute a separate offense. The
penal provisions imposed under this article shall not preclude the town from filing suit to enjoin
the violation. The town retains all legal rights and remedies to it pursuant to local, state and
federal law."
Ordinance No. 2021-74, Page 7
SECTION 3
All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the
extent they are in conflict; but such repeal shall not abate any pending prosecution for violation
of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced
for any violation if occurring prior to the repeal of the ordinance. Any remaining portion of
conflicting ordinances shall remain in full force and effect.
SECTION 4
If any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be unconstitutional or invalid by a court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of this Ordinance. The Town hereby
declares that it would have passed this Ordinance, and each section, subsection, clause or
phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences,
clauses, and phrases be declared unconstitutional.
SECTION 5
This Ordinance shall become effective on January 1, 2022, after its adoption and
publication as required by law.
DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS, ON THIS 14th DAY OF DECEMBER 2021.
APPROVED:
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Ray Smith, Mayor
ATTEST:
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Michelle Lewis Sirianni, Town Secretary IRO
APPROVED AS TO FORM AND LEGALITY:
Terrance S. Welch, Town Attorney 9194 '
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Ordinance No. 2021-74, Page 8