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Oregon Bulletin

April 1, 2012

Oregon Health Authority, Public Health Division, Chapter 333

Rule Caption: Implements changes to temporary restaurant licensing standards due to passage of House Bill 2868 (2011).

Adm. Order No.: PH 3-2012

Filed with Sec. of State: 2-29-2012

Certified to be Effective: 3-1-12

Notice Publication Date: 2-1-2012

Rules Adopted: 333-157-0073, 333-157-0077

Rules Amended: 333-012-0053, 333-012-0055

Subject: The Oregon Health Authority, Public Health Division is permanently adopting and amending administrative rules in chapter 333, divisions 12 and 157. The proposed rules implement the provisions of House Bill 2868, passed during the 2011 Oregon Legislative Session, which changes the licensing model for temporary restaurant facilities. House Bill 2868 was a collaborative effort of the temporary restaurant industry and state and local regulatory officials to improve the licensing model by reducing the costs of operating temporary restaurants by industry but still allowing regulatory officials to assure adequate public health protection. House Bill 2868 created new licensing categories that extend the period of time that licenses are valid and allows local health departments to conduct a comprehensive review of the operation’s food safety practices.

Rules Coordinator: Brittany Sande—(971) 673-1291

333-012-0053

Licensing and Fees

(1) License applications and licenses issued must be on forms provided or approved by the Authority.

(2) The Local Public Health Authority must establish a single license fee per establishment or facility type. There may not be added fees based on local determination of unique features of an establishment or facility.

(3) Licensing categories must be based upon those specified in ORS 446.310, 448.035 and 624.490. The Local Public Health Authority may not create additional licensing categories.

(4)(a) Annual work hours available for a dedicated full time equivalent (FTE) for field staff in the food service program based on a 40-hour week is 1640 hours, of which 25 percent is allocated for office and administrative duties and consultation, and 75 percent is for field inspection activities;

(b) Standards for complete inspection functions, on average, including travel time, relative to facility size are as follows:

(A) 0–15 seats, 1-1/2 hours;

(B) 16–50 seats, 1-3/4 hours;

(C) 51–150 seats, 2 hours;

(D) Over 150 seats, 2-1/2 hours.

(c) An average recheck inspection rate of 40 percent with an average critical item recheck inspection taking 45 minutes including travel.

(5) The following standards are established to reflect the levels of effort and resources needed to carry out the delegated functions and provisions of ORS chapter 624:

(a) Workload indicators established in section (4) of this rule must be used to determine staffing levels budgeted for field inspection activities;

(b) Administrative costs must be limited to 15 percent of direct costs;

(c) A ratio of up to 0.35 FTE for clerical support and up to 0.25 FTE for supervision to field staff FTE respectively, must be observed;

(d) Charges for services and supplies may not exceed a ratio of 0.25 of personnel salary for direct program costs;

(e) In lieu of the administrative standards outlined in this rule, the Local Public Health Authority may determine staffing standards and actual costs of providing program services. The Local Public Health Authority must document and report to the Oregon Health Authority actual time spent and expenses incurred and may be subject to a fiscal audit as specified in OAR 333-012-0070(3).

(6) The Local Public Health Authority may adopt a fee schedule for facilities that require more than two recheck inspections per year.

(7) The Local Public Health Authority may adopt a fee schedule for seasonal temporary restaurants and intermittent temporary restaurants that require a recheck inspection.

(8) The Local Public Health Authority may set a fee for costs associated with conducting an operational review in accordance with guidelines established by the Oregon Health Authority.

(9) The Local Public Health Authority may set a fee for costs associated with plan review conducted under guidelines established by the Oregon Health Authority.

(10) The Local Public Health Authority may set a reinstatement fee for late license reinstatement.

(11) The Local Public Health Authority may recover the cost of the extra inspections required under OAR 333-157-0027, Increased Inspection Schedule, by charging a fee of up to one-half of the annual licensing fee otherwise assessable to the restaurant for each additional inspection.

(12) A license may be issued only after the Local Public Health Authority has received the fee and determined that the facility meets the requirements of the statutes and rules.

(13) The Local Public Health Authority may pro-rate fees for partial year operation as follows: From January 1 through September 30, a full license fee is required. From October 1 through December 31, half the annual fee must be assessed.

(14) If license fees assessed by the Local Public Health Authority are more than 20 percent above or below the fees established in ORS 624.490, the Local Public Health Authority must document and report to the Oregon Health Authority actual time spent and expenses incurred on program services and may be subject to a fiscal audit as specified in OAR 333-012-0070(3).

(15) All license fees collected by the Local Public Health Authority pursuant to ORS 446.425, 448.100 and 624.510 must be paid into the county treasury and placed in a special revenue fund or the general fund of the county treasury and placed to the credit of the Local Public Health Authority. Such monies must be used only for program services pursuant to ORS 446.425, 448.100 and 624.510. The Local Public Health Authority must assure on an annual basis that all fees collected are used solely for the purposes of administering the programs as described in this section.

(16) If the Local Public Health Authority requests a fiscal audit required in OAR 333-012-0070(3) be conducted by a private auditing agency, the Local Public Health Authority must pay the costs and a copy of audit report must be provided to the Oregon Health Authority.

Stat. Auth.: ORS 446.425, 448.100 & 624.510
Stat. Implemented: ORS 446.425, 448.100 & 624.510
Hist.: PH 13-2004, f. & cert. ef. 4-9-04; PH 14-2006, f. 6-27-06, cert. ef. 7-1-06; PH 3-2012, f. 2-29-12, cert. ef. 3-1-12

333-012-0055

Inspection Standards

(1) All licensed establishments and facilities, except bed and breakfast facilities, travelers’ accommodations, hostels and temporary restaurants, must receive a minimum of one complete inspection for every six months of operation or fraction thereof. For vending machines, the Local Public Health Authority shall evaluate at least 10 percent of each licensee’s machines during each inspection:

(a) Bed and breakfast facilities must be inspected once per year;

(b) Travelers’ accommodations and hostels must be inspected on a schedule in accordance with local public health priorities and with consideration of the following criteria:

(A) Complaints received from a guest at a particular facility;

(B) A history of rule violations;

(C) A request for inspection or consultation from a licensee;

(D) Reports of illness or accidents associated with the facility;

(E) Change of owner or operator;

(F) The facility’s method of sewage disposal, source of water and availability of local fire protection services;

(G) Length of time since the last inspection of the facility;

(H) A minimum of one inspection every two years is recommended.

(c)(A) Single-event, seasonal and intermittent temporary restaurants must receive a minimum of one inspection during operation for each license issued;

(B) Notwithstanding paragraph (1)(c)(A) of this rule benevolent single-event temporary restaurants may receive an inspection or a consultation in lieu of an inspection, as determined by the Local Public Health Authority.

(2) The Local Public Health Authority may substitute an alternative inspection procedure or intervention once per year in place of an inspection using alternative criteria approved by the Oregon Health Authority.

(3) The Local Public Health Authority must implement an increased inspection schedule for restaurants as described in OAR 333-157-0027. Up to two of the quarterly inspections may be based upon a menu review consultation, an announced inspection, a risk control plan or other method approved by the Oregon Health Authority.

(4) A pre-operational or construction inspection must be conducted after plan review and prior to operation of a new, remodeled, converted, renovated or altered establishment or facility. The pre-operational inspection is in addition to the requirement for a complete inspection in section (1) of this rule.

(5) A complete inspection to assign a public notice of sanitation must be conducted within 45 days after opening for a restaurant or bed and breakfast facility. This inspection counts toward one of the inspections required in section (1) of this rule.

(6) Inspection reports must be filled out completely and must include at least the following information:

(a) Specific problem and correction statements for all violations, including Oregon Administrative Rule references;

(b) Except in the food service programs, time limits must be specified for all corrections stated;

(c) Food Service — Inspections must be documented as specified in OAR chapter 333, division 157 Inspection and Licensing Procedures. In addition, the Local Public Health Authority must indicate on the inspection report how a critical violation has been corrected during complete and recheck inspections;

(d) Public Swimming Pools — Document pH, free residual chlorine, total chlorine, total alkalinity, total hardness, cyanuric acid (if used), water clarity (recorded as acceptable or unacceptable), water temperature, pressure and/or vacuum gauge readings and flow rate as measured by flow meter.

(7) The Local Public Health Authority must conduct recheck inspections of establishments and facilities to determine if timely corrective action has been taken on noted critical violations or public health hazards.

(8) The Local Public Health Authority must, at a minimum, furnish each Environmental Health Specialist with the following equipment or materials to conduct inspections:

(a) Temperature measuring devices, flashlight, inspection forms and computer inspection equipment, identification and business cards, rules, stickers and forms;

(b) Food Service — Sanitizing swabs, test strips for chlorine and quaternary ammonium;

(c) Public Swimming Pools — Current state-approved pool test kit and a 25-foot tape measure or equivalent device with the ability to accurately measure distance and depth;

(d) The Local Public Health Authority must provide food and waterborne illness investigation materials, specified in guidelines provided by the Oregon Health Authority, and a light meter for staff to share. The Food Program Policy Manual must be maintained and updated as well as other information required by the Oregon Health Authority.

(9) The Local Public Health Authority must, upon request, provide technical information and consultation to the public and those holding permits and licenses.

Stat. Auth.: ORS 446.425, 448.100 & 624.510
Stat. Implemented: ORS 446.425, 448.100 & 624.510
Hist.: HD 105, f. & ef. 2-5-76; HD 1-1979, f. & ef. 1-18-79; HD 9-1994, f. & cert. ef. 4-1-94; HD 14-1995, f. 12-28-95, cert. ef. 1-1-96; PH 13-2004, f. & cert. ef. 4-9-04; PH 3-2012, f. 2-29-12, cert. ef. 3-1-12

333-157-0073

Temporary Restaurant Definitions

(1) “Intermittent temporary restaurant” means an establishment:

(a) That operates temporarily at a specific location in connection with multiple public gatherings, entertainment events, food product promotions or other events, at least two of which are arranged for by different oversight organizations; and

(b) Where food is prepared or served for consumption by the public.

(2) “Operational review” means the examination of a plan of operation for an establishment in order to ensure that the proposed operation conforms with applicable sanitation standards.

(3) “Oversight organization” means an entity responsible for organizing, managing or otherwise arranging for a public gathering, entertainment event, food product promotion or other event, including but not limited to ensuring the availability of water, sewer and sanitation services.

(4) “Seasonal temporary restaurant” means an establishment:

(a) That operates at a specific location in connection with multiple public gatherings, entertainment events, food product promotions or other events that are arranged for by the same oversight organization; and

(b) Where food is prepared or served for consumption by the public.

(5) “Single-event temporary restaurant” means an establishment:

(a) That operates in connection with a single public gathering, entertainment event, food product promotion or other event; and

(b) Where food is prepared or served for consumption by the public.

(6) “Substantial menu alteration” means a change of menu that increases the complexity of the menu of a seasonal temporary restaurant and intermittent temporary restaurant operation. For purposes of these rules, an increase in complexity occurs when the menu moves from:

(a) Service of ready-to-eat foods that requires no further preparation or cooking; to

(b) Foods that are prepared or cooked on-site and served directly to the consumer that day; to

(c) Foods that must be prepared in the operation in advance and reheated or cooled over the course of multiple days of operation.

Stat. Auth.: ORS 624.041
Stat. Implemented: ORS 624.041 & 2011 OL Ch. 664
Hist.: PH 3-2012, f. 2-29-12, cert. ef. 3-1-12

333-157-0077

Temporary Restaurant Licensing and Inspection

(1) A person may not operate a single-event, intermittent or seasonal temporary restaurant without first procuring a license to do so from the Local Public Health Authority.

(2)(a) Application for an intermittent or seasonal temporary restaurant license shall be in writing in the form prescribed by the Authority and shall contain the name and address of the applicant, the specific location of the intermittent or seasonal temporary restaurant, a description of the public gatherings, entertainment events, food product promotions or other events to be served by the intermittent or seasonal temporary restaurant, an operational review and any other information the Authority may require. In addition to the application the applicant for an intermittent or seasonal temporary restaurant license shall pay to the Local Public Health Authority the appropriate license fee under ORS 624.490.

(b) The Local Public Health Authority shall issue a license to a benevolent organization to operate a single-event temporary restaurant if the benevolent organization has notified the Local Public Health Authority orally or in writing that the benevolent organization intends to operate a single-event temporary restaurant. A Local Public Health Authority may not charge a benevolent organization a license fee or inspection fee for a single-event temporary restaurant.

(3)(a) Intermittent and seasonal temporary restaurants must complete and submit an operational plan for review by the Local Public Health Authority prior to obtaining a license and operation of the establishment.

(b) Intermittent and seasonal temporary restaurants that do not complete an operational plan prior to operation may operate under one or more single-event temporary licenses until the operational plan can be completed and approved.

(c) After the operational plan has been completed by the Local Public Health Authority, another operational plan is not required for subsequent licenses, unless deemed necessary by the Local Public Health Authority.

(4) The single-event, intermittent or seasonal temporary restaurant license shall be posted in a conspicuous place on the premises of the licensee.

(5) An intermittent temporary restaurant license shall expire 30 days after issuance.

(6) A seasonal temporary restaurant license shall expire 90 days after issuance.

(7) A single-event temporary restaurant license shall terminate 30 days after issuance unless within 30 days the single-event temporary restaurant is discontinued or moved from the specific location for which the license was issued.

(8) An intermittent or seasonal temporary license shall terminate immediately if:

(a) The intermittent or seasonal temporary restaurant prepares or serves food for consumption by the public that is not in connection with a public gathering, entertainment event, food product promotion or other event held by an oversight organization;

(b) The location of the intermittent or seasonal temporary restaurant changes; or

(c) The menu is substantially altered as defined by OAR 333-157-0073(6).

(d) If a licensed operation undergoes a substantial menu alteration, then a new license and completed operational plan is required.

(9) If the license of an intermittent or seasonal temporary restaurant is terminated under section (8) of this rule, the intermittent or seasonal temporary restaurant may reapply for a license in accordance with section (2) of this rule.

(10) The Local Public Health Authority may suspend, deny or revoke a single-event, intermittent or seasonal temporary restaurant license if it appears, after a reasonable time has been given for correction of a sanitation violation, that the applicant does not meet applicable minimum sanitation standards as described in ORS 624.010 through 624.121 or in OAR 333-150-0000. Any suspension, denial or revocation action shall be taken in accordance with ORS Chapter 183.

(11) The Local Public Health Authority may conduct a reinspection of a seasonal or intermittent temporary restaurant if a critical violation is uncorrected and a separate follow-up visit is necessary to determine compliance.

(12) A seasonal or intermittent temporary restaurant that has uncorrected critical violations and for which an alternative procedure has not been approved shall be closed in accordance with ORS 624.096.

(13) The renewal of a single-event, intermittent or seasonal temporary restaurant license shall be in accordance with section (2) of this rule.

Stat. Auth.: ORS 624.041
Stat. Implemented: ORS 624.041 & 2011 OL Ch. 664
Hist.: PH 3-2012, f. 2-29-12, cert. ef. 3-1-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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