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§ 115.38 INSPECTION.
   (A)   General. The Health Department shall inspect a bed and breakfast establishment and/or retail food establishment bi-annually, or less frequently if indicated under the risk based assessment method as outlined by the Indiana State Department of Health. The Floyd County Board of Health may inspect more frequently if a risk is posed by any of the following: the establishment has had critical violations in the last inspection, the establishment serves an at-risk population, or a consumer complaint or a report of a food-borne illness has been reported to the department.
   (B)   Temporary food establishment. The Health Department shall periodically inspect throughout its permit period a temporary food establishment that prepares, sells, or serves unpackaged potentially hazardous food and may inspect a temporary food establishment that prepares, sells or serves unpackaged, non-potentially hazardous food that:
      (1)   Has improvised rather than permanent facilities or equipment for accomplishing functions such as hand-washing, food preparation and protection, food temperature control, ware-washing, providing drinking water, waste retention and disposal, and insect and rodent control; or
      (2)   Has untrained food employees.
   (C)   Performance and risk based inspections. Within the parameters for risk specified above, the Health Department shall prioritize, and conduct more frequent inspections based upon its assessment of a bed and breakfast establishment and/or retail food establishment's history of compliance with this subchapter and the bed and breakfast establishment and/or retail food establishment's potential as a vector of food-borne illness by evaluating:
      (1)   Past performance, for violations of 410 I.A.C. 7-15.5, 410 I.A.C. 7-24 and/or 410 I.A.C. 7-22 and/or HACCP plan requirements that are critical or non-critical;
      (2)   Past performance, for numerous or repeat violations of 410 I.A.C. 7-15.5 and/or 410 I.A.C. 7-24 and/or HACCP plan requirements that are non-critical;
      (3)   Past performance, for complaints investigated and found to be valid;
      (4)   The hazards associated with the particular foods that are prepared, stored, or served;
      (5)   The type of operation including the methods and extent of food storage, preparation, and service;
      (6)   The number of people served; and
      (7)   Whether the population served is a highly susceptible population.
   (D)   Application and permit fees. The application for any permit shall be tendered with the following application fees:
      (1)   Each new retail food establishment shall be required to pay an application fee of $100 for the review of plans and specifications and for the initial inspection of such establishment. This fee is in addition to the permit fee.
      (2)   Permit fees for retail food establishments are payable as follows: permit fees for retail food market establishments:
 
Up to and including 3,000 square feet
$125
3,000 up to and including 20,000 square feet
$175
20,000 up to and including 70,000 square feet
$225
70,000 square feet and above
$275
 
      (3)   Permit fees for retail food service establishments:
 
1–5 employees
$125
6–9 employees
$175
10–15 employees
$225
16–20 employees
$275
21 or more employees
$325
 
      (4)   Permit fees for temporary food establishments: $20 per day, not to exceed $100, for a maximum of 14 days.
      (5)   Flat rate permit fees:
 
Bed & breakfast establishments
$150
Retail food establishments that are seasonal concessions operated less than six months per year
$125
Farmers market - potentially hazardous foods
$125
 
   (E)   Access allowed at reasonable times after due notice.
      (1)   After the Officer or an official presents official credentials and provides notice of the purpose of and the intent to conduct an inspection, the operator shall allow the Health Department to determine if the Bed and breakfast establishment, retail food establishment, and/or temporary food establishment is in compliance with this subchapter by allowing access to the establishment, allowing inspection, and providing information and records specified in this subchapter. Inspections shall be conducted during the bed and breakfast establishment, retail food establishment, or temporary food establishment's hours of operation and other reasonable times.
      (2)   Access is a condition of the acceptance and retention of a food establishment permit to operate.
      (3)   If access is denied, an order issued by the appropriate authority allowing access may be obtained according to law. (See I.C. 16-20-1-26)
(Ord. G-08-14, passed 5-5-2008; Ord. G-10-21, passed 6-7-2010)
§ 115.39 VIOLATIONS
   (A)   Inspection reports. At the conclusion of the inspection, the Health Department shall provide a copy of the completed inspection report and the notice to correct violations to the operator or to the person in charge, as required under I.C. 16-20-8-5.
   (B)   Timely correction of critical violations.
      (1)   Except as specified in the next paragraph, an operator shall at the time of inspection correct a critical violation of 410 I.A.C. 7-15.5, 410 I.A.C. 7-24 and/or 410 I.A.C. 7-22 and implement corrective actions for a HACCP plan provision that is not in compliance with its critical limit.
      (2)   Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the Health Department may agree to or specify a longer time frame after the inspection, for the operator to correct critical code violations or HACCP plan deviations.
      (3)   After receiving notification that the operator has corrected a critical violation or HACCP plan deviation, or at the end of the specified period of time, the Health Department shall verify correction of the violation, document the information on an Inspection Report, and enter the report in the Health Department's records.
   (C)   Refusal to sign acknowledgement.
      (1)   Refusal to sign an acknowledgment of receipt will not affect the operator's obligation to correct the violations noted in the inspection report within the time frames specified.
      (2)   A refusal to sign an acknowledgment of receipt is noted in the inspection report and conveyed to the Health Department historical record for the bed and breakfast establishment, retail food establishment and/or temporary food establishment.
   (D)   Public information. Except as specified in section 176 (Trade Secrets) of 410 I.A.C. 7-24, the Health Department shall treat the inspection report as a public document and shall make it available for disclosure to a person who requests it as provided in law. (See I.C. 16-20-8-6)
(Ord. G-08-14, passed 5-5-2008)
§ 115.40 COMPLIANCE AND ENFORCEMENT.
   (A)   Application denial. If an application for a plan review and/or permit to operate a bed and breakfast establishment, retail food establishment, and/or temporary food establishment is denied, the Health Department shall provide the applicant with a notice that includes:
      (1)   The specific reasons and rule citations for the application and/or permit denial;
      (2)   The actions, if any, that the applicant must take to qualify for the application and/or permit; and
      (3)   Advisement of the applicant's right of appeal and the process and time frames for appeal that are provided in law.
   (B)   Permit suspension. The Health Department may suspend a permit to operate a bed and breakfast establishment, retail food establishment and/or temporary food establishment if it determines through any inspection, or examination of records, or other means as specified in this subchapter, that an imminent health hazard exists.
   (C)   Ceasing operation and contacting the health department.
      (1)   An operator of a bed and breakfast establishment, retail food establishment and/or temporary food establishment shall immediately discontinue operations and notify the Health Department if an imminent health hazard may exist because of an emergency such as a fire, flood, extended interruption of electrical or water service, sewage backup, misuse of poisonous or toxic materials, onset of an apparent food-borne illness outbreak, gross unsanitary occurrence or condition, or other circumstance that may endanger public health.
      (2)   An operator need not discontinue operations in an area of an establishment that is unaffected by the imminent health hazard.
   (D)   Resuming operation. If only a portion of a bed and breakfast establishment, retail food establishment and/or temporary food establishment is affected the operator may continue operations in the unaffected portion, provided there is no imminent health hazard to such unaffected portion. Otherwise, the operator must obtain approval from the Health Department before resuming operations.
   (E)   Outstanding fees. Any outstanding fees may be a condition upon which a permit may not be issued or may be suspended.
   (F)   Enforcement options. When the Health Officer or an official finds a critical violation at a retail food establishment it will be addressed at the time of the inspection; a follow-up inspection may also be conducted.
      (1)   First follow-up inspection: A letter of warning may be issued when there are critical or noncritical violations continuing upon the first follow-up inspection. If a letter of warning is issued, a second follow-up inspection will be conducted.
      (2)   Second follow-up inspection:
         (a)   After a second follow-up inspection in which it is determined that critical or noncritical violations are continuing, one or a combination of the following measures may be implemented at the discretion of the Environmental Health Supervisor:
            (1)   Letter of warning;
            (2)   Informal meeting held in the Health Department offices;
            (3)   A meeting held at the establishment by the Health Officer, Environmental Health Supervisor or chief food specialist; and/or
            (4)   Another follow-up inspection.
         (b)   There shall be a fee payable before any second follow-up inspection in the amount of 50% of the annual permit, or in such amount as set from time to time by the Floyd County Health Board.
      (3)   Third/subsequent follow-up inspection:
         (a)   Upon a third inspection follow-up inspection, with continuing critical or noncritical violations, or upon the continued unlawful operation during an event of imminent health hazard, an enforcement action may be instituted, and may include one or more of the following:
            (1)   Issuance of a notice of violation and order to abate;
            (2)   Follow-up inspections conducted as often as necessary to ensure compliance; and/or
            (3)   If the action concerning public health is a criminal offense, request county prosecuting attorney to institute a proceeding in the courts for enforcement. (See I.C. 16-20-l-25(c)).
         (b)   There shall be a fee payable upon before any third follow-up inspection or subsequent inspection in the amount of 50% of the annual permit, or in such amount as set from time to time by the Floyd County Health Board.
   (G)   Permit revocation. The Health Department may permanently revoke a permit to operate a bed and breakfast establishment, retail food establishment, and/or temporary food establishment, if it determines through a review of subsequent inspection reports conducted after the approval of Ordinance G-11-03 that repeat and habitual critical violations are continually existing, which present an imminent health hazard.
(Ord. G-08-14, passed 5-5-2008; Ord. G-11-07, passed 4-4-2008)
§ 115.41 APPEALS SECTION.
   (A)   An operator aggrieved by an order is entitled to a review of the final order before a Hearing Board by filing a written request therefore with the Health Officer (Secretary of the Board of Health; see I.C. 16-20-1-10). The written request must be sent by certified mail or by hand delivery to the Health Officer at 1917 Bono Road, New Albany, Indiana 47150, during regular hours of operation, and must be received within 15 days after the date such order is issued. The written request must set forth with specificity the factual and/or legal grounds for appeal, and only those matters set forth in the written request may be argued before the Hearing Board.
   (B)   Upon the Health Officer's receipt of such request, the Hearing Board shall hear the matter in an open hearing after at least five-days' written notice of the time, place and nature thereof. The time shall be measured pursuant to the Indiana rules of court. (A shorter period of time for hearing may be requested and granted in the sole discretion of the Chairperson of the Floyd Board of Health, provided that such shorter time must permit compliance with I.C. 5-14-1.5.)
   (C)   The notice of the hearing date shall be served upon the operator requesting the review by delivering such notice to the address of the bed and breakfast establishment, retail food establishment or temporary food establishment listed on the permit application or by facsimile or to such other address (if within Floyd County), as the operator shall designate in the letter of request to the Health Officer. Such delivery may be made by leaving the notice at the required address or by regular U.S. Mail.
   (D)   The Hearing Board shall establish the rules of procedure for the hearing and shall advise the operator of the same prior to the start of the proceedings. Such rules shall provide that an order may only be supported, in whole or in part, by a majority decision of the Hearing Board.
   (E)   Within seven days from the conclusion of the hearing, The Hearing Board shall make written findings of facts and conclusions concerning the final order or determination and shall deliver the same to the operator requesting the review by delivering the same to the address of the bed and breakfast establishment, retail food establishment or temporary food establishment listed on the permit application or by facsimile or by had delivery to such other address (if within Floyd County), as the operator shall designate in the letter of request to the Health Officer. Such delivery may be made by leaving the notice at the required address or by regular U.S. Mail.
(Ord. G-08-14, passed 5-5-2008)
§ 115.42 CONFLICT OF INTEREST.
   No Health Department Official shall conduct himself or herself in a manner that is or could have the appearance of a conflict of interest.
(Ord. G-08-14, passed 5-5-2008)
§ 115.43 PARTIAL INVALIDITY OF PROVISIONS.
   Should any section, paragraph, sentence, clause, or phrase of this subchapter be declared unconstitutional or invalid for any reason, the remainder of this subchapter shall not be affected thereby.
(Ord. G-08-14, passed 5-5-2008)
§ 115.44 REPEAL AND EFFECTIVE DATE.
   All ordinances and parts of ordinances in conflict with this subchapter are hereby repealed, and this subchapter shall be in full force and effect 30 days after its adoption and publication as provided by law.
(Ord. G-08-14, passed 5-5-2008)
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