ORDINANCE NO. 2450
BY: _______________________________
AN ORDINANCE TO CREATE SECTION 8.10 OF THE MUNICIPAL CODE RELATING TO RESTAURANTS, LODGING, CAMPGROUNDS, RECREATIONAL, TATTOO/BODY PIERCING ESTABLISHMENTS, AND RETAIL FOOD ESTABLISHMENTS, AND AUTHORIZING THE CITY OF OAK CREEK TO BECOME THE DESIGNATED AGENT OF THE STATE FOR THE WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES AND THE WISCONSIN DEPARTMENT OF AGRICULTURE, TRADE, AND CONSUMER PROTECTION
The Common Council of the City of Oak Creek, Wisconsin do hereby ordain as follows:
Section 1: Section 8.10 Restaurants, Lodging, Campgrounds, Recreational, Tattoo/Body Piercing Establishments, and Retail Food Establishments, is hereby created to read as follows:
(a) AUTHORITY. This ordinance is adopted pursuant to that authority provided by Wisconsin State Statute Sections 66.0417, 68,97.12, 97.41, 125.68(5), 251.04(3), 252.02, 252.03, 254.47, 254.64 and 254.69(2); and by Wisconsin State Administrative Code ATCP 74 and 75, HFS 172, 173, 175, 178, 192, 195, 196, 197 and 198, and COMM 90 and 95.
(b) PURPOSE.
(1) The purpose of this
ordinance is to protect and improve the public health and to authorize the City
of Oak Creek Health Department to become the designated agent of:
a. The State Department of
Health and Family Services for the purpose of establishing permit fees; issuing
permits; and conducting investigations or inspections of hotels, motels,
tourist rooming houses, body piercing and tattooing establishments,
restaurants, bed and breakfast establishments, campgrounds and camping resorts,
recreational and educational camps, public swimming pools and in conducting investigations
and inspections of food vending machines, their operators and vending machine
commissaries; and,
b. The State Department of
Agriculture, Trade, and Consumer Protection, for the purpose of establishing
permit fees; issuing permits, conducting routine sampling, and conducting
investigations or inspections of retail food establishments; and for the
purpose of enacting local regulations governing these establishments.
(2) In addition, the Health Department may also secure samples or specimens of food and any product or substance that may affect food, examine and copy relevant documents and records and obtain photographic and other evidence needed to enforce this chapter. The Health Department shall examine any samples secured and conduct other inspections and examinations needed to determine whether there is a violation.
(c) APPLICABILITY. The provisions of this ordinance shall apply to the owner and operator of any retail food establishment, hotel, motel, tourist rooming house, body piercing and tattooing establishments, restaurant, bed and breakfast establishment, campground and camping resort, recreational and educational camp, public swimming pool, vending machine commissary or vending machines in the City of Oak Creek. For purposes of this ordinance the terms license and permit are synonymous and are used interchangeably.
(d) DEFINITIONS. All definitions as set forth in Wisconsin State Statutes Sections 66.0417, and Chapters 68, 97, 125, 251, 252 and 254; and Wisconsin State Administrative Code Chapters, ATCP 74 and 75, HFS 172, 173, 175, 178, 192, 195, 196, 197 and 198, and COMM 90 and 95 are incorporated in this ordinance by reference and they shall be construed, read and interpreted as fully set forth herein until amended and then shall apply as amended. In addition the following terms and phases have meanings ascribed to them in this section:
(1) “Annual Permit Fee” shall mean a fee for on-site inspection of the entire facility, and one follow-up inspection to determine that establishments identified in the ordinance are compliant with the statutes and administrative codes that govern their operation.
(2) “Duplicate Permit Fee” shall mean a fee for the replacement of an original permit.
(3) “City” shall mean the City of Oak Creek.
(4) “Health Department” shall mean the City of Oak Creek Health Department.
(5) “Health Officer” shall mean the Community Public Health Officer.
(6) “Fee Schedule” shall mean the schedule of all fees associated with this ordinance, as set forth in Section 3.40, and posted in the Health Department.
(7) “Late Application Fee” shall mean a fee that is charged for failure to comply with the application time frame specified in the applicable statute and administrative code for completion and submission of the required application for permit to the Health Department.
(8) “Limited Food Service” shall mean the serving of only individually wrapped hermetically sealed single food servings by a licensed processor with preparation on the premises limited to heating and serving with single-service articles, i.e. hermetically wrapped sandwiches or frozen pizza.
(9) “Mobile Restaurant” shall mean a restaurant operating from a movable vehicle, pushcart, trailer or boat which periodically or continuously changes location and wherein meals or lunches are prepared or served or sold to the general public, excepting those vehicles used in delivery of pre-ordered meals or lunches prepared in a licensed restaurant.
(10) "Operator" shall mean the owner, operator or person responsible for the operations of the hotel, motel, bed and breakfast establishment, restaurant, retail food establishment or beverage establishment, vending machine commissary and/or vending machine, campground, camping resort, recreational/educational camps, or public swimming pools.
(11) “Outdoor Grilling” shall mean the cooking of food on an outdoor grill on the premises of a licensed restaurant or retail food establishment. The purpose for outdoor cooking shall not increase the production capability of the restaurant kitchen by circumventing codes applicable to indoor cooking facilities. Hot holding shall be limited to what can be held on the cooking unit.
(12) “Late Fee” shall mean a fee for failure to pay established or assessed fees in a timely manner. This refers to any fee not postmarked by June 30th.
(13) “Potentially Hazardous Food”
a. Shall mean a food that is natural or synthetic and that requires temperature control because it is in a form capable of supporting:
1) The rapid and progressive growth of infectious or toxigenic microorganisms;
2) The growth and toxin production of Clostridium botulinum; or
3) In raw shell eggs, the growth of Salmonella enteritidis.
b. "Potentially hazardous food" includes an animal food (a food of animal origin) that is raw or heat-treated; a food of plant origin that is heat-treated or consists of raw seed sprouts; cut melons, and garlic and oil mixtures that are not acidified or otherwise modified at a food processing plant in a way that results in mixtures that do not support growth as specified under Subparagraph a. of this definition.
c. "Potentially hazardous food" does not include:
1) An air-cooled hard-boiled egg with shell intact;
2) A food with an a/w value of 0.85 or less;
3) A food with a pH level of 4.6 or below when measured at 24C (75F);
4) A food in an unopened hermetically sealed container that is commercially processed to achieve and maintain commercial sterility under conditions of nonrefrigerated storage and distribution; and
5) A food for which laboratory evidence demonstrates that the rapid and progressive growth of infectious or toxigenic microorganisms or growth of S. enteritidis in eggs or C. botulinum can not occur, such as a food that has an a/w and a pH that are above the levels specified under Subparagraphs c. 2) and 3) of this definition and that may contain a preservative, other barrier to growth of microorganisms, or a combination of barriers that inhibit the growth of microorganisms.
6) A food that may contain an infectious or toxigenic microorganism or chemical or physical contaminant at a level sufficient to cause illness, but that does not support the growth of microorganisms as specified under Subparagraph a. of this definition.
(14) "Pre-inspection Fee" shall mean the fee associated with the required inspection necessary to determine compliance at the time of a change in operator or new business.
(15) “Re-Inspection Fee” shall mean a fee structure for the subsequent inspections needed to address compliance issues with the statutes and administrative codes that govern a respective establishment. Re-inspections are conducted due to one or more of the following: Uncorrected critical violations, more than ten total violations, repeat violations from previous inspections, major non-critical violations and when a complaint investigation identifies unsatisfactory conditions. The fee for a re-inspection will be a set fee, determined by the Board of Health and posted in the Health Department on the Fee Schedule.
(16) “Restaurant” shall mean any building, room or place where meals are prepared, served or sold to transients or the general public, and all places used in connection with the building, room or place and shall include any public or private school lunchroom for which food service is provided by contract. “Restaurant” does not include:
a. Taverns that serve free lunches consisting of popcorn, cheese, crackers, pretzels, cold sausage, cured fish or bread and butter;
b. Churches, religious, fraternal, youth or patriotic organization, service clubs and civic organizations which occasionally prepare, serve or sell meals to the general public;
c. Any public or private school lunchroom for which food service is directly provided by the school;
d. Any food service provided solely for needy persons;
e. Bed and breakfast establishments; or
f. A private individual selling food from a movable or temporary stand at a public farm sale.
(17) “Retail Food Establishment” shall mean any of the following, but does not include a restaurant or other establishment holding a permit to the extent that the activities of the establishment are covered by that permit:
a. A permanent or mobile food processing facility where food is processed primarily for direct retail sale to consumers at the facility.
b. A mobile facility from which food is sold to customers at retail.
c. A permanent facility from which food is sold to consumers at retail, whether or not that facility sells potentially hazardous food or is engaged in food processing.
(18) "Temporary Restaurant" or “Temporary Retail Food Establishment” shall mean a restaurant or retail food establishment that operates at a fixed location in conjunction with a single event such as a fair, carnival, circus, public exhibition, anniversary sale, or occasional sales promotion for a period of no more than fourteen consecutive days or less. Mobile Establishments of this type which conduct business in the City that are licensed outside of the City of Oak Creek will be inspected and charged a nominal fee to cover the cost of inspection.
(19) "Vending Machine" shall mean any self-service device offered for public use which, upon insertion of a coin or token, or by other means, dispenses unit servings of food or beverage either in bulk or in package, without the necessity of replenishing the device between each vending operation. "Vending machine" does not include a device which dispenses only bottled, prepackaged or canned soft drinks, a one cent vending device, a vending machine dispensing only candy, gum, nuts, nut meats, cookies or crackers, or a vending machine dispensing only prepackaged grade A pasteurized milk or milk products.
(20) "Vending Machine Commissary" shall mean any building, room or place in the state at which foods, containers, transport equipment or supplies for vending machines are kept, handled, prepared or stored by a vending machine operator, except a place at which the operator is licensed to manufacture, distribute or sell food products under Ch. 97, Stats.
(e) ENFORCEMENT. The provisions of this ordinance shall be administered by or under the direction of the City Health Officer, who in person or by duly authorized representatives shall have the right to enter, at reasonable hours, upon premises affected by this regulation to inspect the premises, secure samples or specimens, examine and copy relevant documents and records or obtain photographic or other evidence needed to enforce this ordinance.
(f) LICENSE AND PERMIT.
(1) No person shall operate a retail food establishment,
bed and breakfast establishment, hotel, motel, tourist rooming house, body
piercing and tattooing establishments, restaurant, campground and camping
resort, recreational and educational camp, public swimming pool without first
obtaining a non-prorated permit from the Health Department.
a. Except as provided in 1., permits shall expire on
June 30 of each year following their issuance.
1. Permits initially issued for a bed and breakfast
establishment, hotel, motel, tourist rooming house, body piercing and tattooing
establishments, restaurant, campground and camping resort, recreational and
educational camp, public swimming pool during the period beginning on April 1
and ending June 30 shall expire June 30 of the following year.
2. Permits issued to Retail Food Establishments covered
under the fee schedule are issued for one year from July 1 through June 30.
b. The issuance of a permit may be conditioned upon the
Permit licensee correcting a violation of this ordinance within a specified
period of time. If the condition is not met within the specified period of
time, the permit shall be voided.
c. The permit shall not be transferable to a location
other than the one for which it was issued, nor shall a permit be transferred
from one operator to another subject to the express exception of:
1. As to location, temporary permits may be transferred;
2. As to operator, a permit of a non-retail food establishment operator may be transferred to an individual who is an immediate family member of the operator if the operator is transferring operation of the establishment or vending machine to that immediate family member. A parent, spouse, child, step-child, grandchild, sibling or step-sibling shall be considered an immediate family member for purposes of this ordinance.
3. A sole proprietorship that reorganizes as a business entity or a business entity that reorganizes as either a sole proprietorship or a different type of business entity may transfer a permit issued under this section for operation of an establishment the newly formed business entity or sole proprietorship if the following conditions are satisfied:
a) The establishment remains at the location for which the permit was issued.
b) At least one individual who had an ownership interest in the sole proprietorship or business entity to which the permit was issued has an ownership interest in the newly formed sole proprietorship or business entity.
(2) Operators or Permit licensees of temporary restaurants whom the Health Department has found to be habitual violators defined as two or three violations within a 2-3 year period of this Ordinance may be denied a permit to operate. Temporary permits may be transferred to premises other than that for which it was issued, provided that the approval of the new premises is secured from the Health Department prior to operating at the new premises.
(3) With the exception of those establishments defined herein as “temporary”, no permits shall be granted to any person under this Ordinance without a pre-inspection by the Health Department of the premises for which the permit shall be granted.
(4) No permit shall be issued until all application fees have been paid.
(g) APPLICATION. Application for permits shall be made in writing to the Health Department, on forms developed and provided by the Health Department, stating the name and address of the applicant and proposed operator, and the address and location of the proposed establishment, together with any such other information as may be required. The Health Department shall either approve the application or deny the permit within thirty (30) days after receipt of a complete application.
(h) FEES. Fees for permits required by this chapter shall be as provided through the Fee Schedule in Sec. 3.40.
(i) PERMIT PUBLIC DISPLAY. Every establishment required to obtain a permit pursuant to this Ordinance shall display said permit, at all times, in a conspicuous public place.
(j) TEMPORARY ORDERS. Whenever, as a result of an examination, the Health Officer or designee has reasonable cause to believe that an immediate danger to health exists on a premises covered by this ordinance, the Health Officer or designee, may issue a temporary order in accordance with Wis. Stats. Section 66.0417 (2), or any future amendment revision thereof.
(k) DENIAL, SUSPENSION OR
REVOCATION OF LICENSE. The City Health Officer, or designee, of county of
jurisdiction may deny any license application or
suspend or revoke any license issued under this chapter for non-compliance with
this code and regulations, rules and laws adopted by reference under sub. l.
The following procedure shall be followed in the denial, suspension or
revocation of any license issued under this chapter:
(1) A decision by the City Health Officer or designee, to deny, suspend or revoke a license shall be in writing and shall state, with specificity, the reasons for the City Health Officer's or designee's decision and shall state any applicable statutes, ordinances, rules, regulation or orders which may have been violated. The Health Officer or designee shall send to the licensee a copy of the written decision by mail or by personal service. Said notice shall inform the licensee or applicant of the right to have this decision reviewed and the procedure for such review.
(2) Any licensee or applicant aggrieved by a decision of the Health Officer or designee, to deny, suspend or revoke a license may have the decision reviewed and reconsidered by a written request mailed or delivered to the City Health Officer within 30 working days of receipt of the notice of the City Health Officer's or designee's decision. The written request for review and reconsideration shall state the grounds upon which the person aggrieved contends that the decision should be reversed or modified.
(3) Within 15 working days of receipt of the request for review and reconsideration, the City Health Officer shall review its initial determination. The City Health Officer may affirm, reverse or modify the initial determination. The City Health Officer shall mail or deliver to the licensee or applicant a copy of the Officer's decision on review, and shall state the reasons for such decision. The decision shall advise the licensee or applicant of the right to an administrative appeal, the time within which appeal shall be taken and the office or person with whom the appeal shall be filed.
(4) A licensee or applicant who may appeal a decision of the City Health Officer by filing a notice of appeal within 30 days of notice of the City Health Officer's Decision on review. Failure to file a notice of appeal shall cause the Health Officer’s decision to be final. The Administrative appeal shall be filed or mailed to the City Health Officer. The City Health Officer shall immediately file said notice of appeal with the Health Department.
(5) A licensee or applicant shall be provided a hearing on appeal within 30 days of receipt of the request for an Administrative appeal. The City Health Officer shall serve the licensee or applicant with notice of hearing by mail or personal service at least 10 days before the hearing.
(6) The hearing shall be conducted before the Board of Health and shall be conducted in accordance with the procedures outlined in sections 68.11 (2) and (3), Wis. Stats.
(7) Within 20 days of the hearing, the Board of Health shall mail or deliver to the appellant its written determination stating the reasons therefore.
(8) A decision by the City Health Officer upon a request for review and reconsideration, which is not appealed to the Board of Health, or a decision by the Health Department on an appeal of a decision by the Health Officer of a request for review and reconsideration shall be a final determination under Wis. Stats. Sec. 68.12(2).
(9) Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination per Wis. Stats. Sec. 68.13.
(l) REGULATIONS, RULES AND LAWS ADOPTED BY REFERENCE. The applicable laws, rules and regulations as set forth in Wisconsin State Statutes Section 66.0417, and Chapters 68, 97, 125, 251, 252 and 254; and Wisconsin State Administrative Code Chapters ATCP 74 and 75, and HFS 172, 173, 175, 178, 192, 195, 196, 197 and 198, and COMM 90 and 95 are incorporated in this regulation by reference and they shall be construed, read and interpreted as fully set forth herein until amended and then shall apply as amended. The expressed provisions of this Ordinance shall control where more restrictive.
(m) VIOLATION-PENALTIES.
(1) Any person who violates or refuses to comply with
any provisions of this ordinance shall be subject to citation or forfeiture
pursuant to Chapter 1 of the Oak Creek Code of Ordinances. The City Health
Officer or the City Health Officer’s designee may issue citations. Citations
may be served in person or by certified mail. In addition, the Health Officer
may revoke or amend an applicable permit each day a violation exists or
continues, shall be considered a separate offense.
(2) In addition to any other remedies, the Health Department the may pursue enforcement of this section through an action in Milwaukee County Circuit Court.
Section 2: All ordinances or parts of ordinances contravening the provisions of this ordinance are hereby repealed.
Section 3: This ordinance shall take effect and be in full force and effect from and after its passage and publication.
Introduced this _______ day of ____________________, 2007.
Passed and adopted this ______ day of ___________________, 2007.
President, Common Council
Approved this ________ day of ______________________, 2007.
Mayor
ATTEST:
VOTE: Ayes Noes
City Clerk