Florida Senate - 2016                                     SB 496
       
       
        
       By Senator Sobel
       
       
       
       
       
       33-00400-16                                            2016496__
    1                        A bill to be entitled                      
    2         An act relating to public food service establishment
    3         inspections; amending s. 509.032, F.S.; providing that
    4         the Division of Hotels and Restaurants of the
    5         Department of Business and Professional Regulation
    6         inspect public food service establishments as often as
    7         necessary to ensure compliance; requiring a written
    8         report for public food service establishment
    9         inspections; specifying a grading scale used in the
   10         inspection report; authorizing a public food service
   11         establishment to request a reinspection under certain
   12         circumstances; authorizing the division to charge a
   13         reasonable fee for reinspections and to increase the
   14         frequency of inspections for certain public food
   15         service establishments; allowing an operator of an
   16         establishment to request a hearing regarding an
   17         inspection grade; requiring a public food service
   18         establishment to post its current letter grade card,
   19         maintain a copy of its latest inspection report, and
   20         make the report available to the public upon request;
   21         requiring the division to establish a toll-free
   22         telephone hotline for complaints; requiring the
   23         division to appoint a consumer advocate; authorizing
   24         an inspector to immediately close a public food
   25         service establishment under certain circumstances;
   26         making technical changes; amending s. 509.233, F.S.;
   27         conforming a cross-reference; providing an effective
   28         date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Subsections (1) and (2) of section 509.032,
   33  Florida Statutes, are amended, present subsections (3) through
   34  (7) of that section are redesignated as subsections (4) through
   35  (8), respectively, and a new subsection (3) is added to that
   36  section, to read:
   37         509.032 Duties.—
   38         (1) GENERAL.—
   39         (a) The division shall perform its duties under carry out
   40  all of the provisions of this chapter and all other applicable
   41  laws and rules relating to the inspection or regulation of
   42  public lodging establishments and public food service
   43  establishments for the purpose of safeguarding the public
   44  health, safety, and welfare. The division shall be responsible
   45  for ascertaining that an operator licensed under this chapter
   46  does not engage in any misleading advertising or unethical
   47  practices. For purposes of performing required inspections and
   48  the enforcement of this part, the division has the right of
   49  entry and access to public lodging establishments and public
   50  food service establishments at any reasonable time.
   51         (b) The division may not establish by rule any regulation
   52  governing the design, construction, erection, alteration,
   53  modification, repair, or demolition of any public lodging
   54  establishment or public food service establishment. It is the
   55  intent of the Legislature to preempt that function to the
   56  Florida Building Commission and the State Fire Marshal through
   57  adoption and maintenance of the Florida Building Code and the
   58  Florida Fire Prevention Code. The division shall provide
   59  technical assistance to the commission in updating the
   60  construction standards of the Florida Building Code which govern
   61  public lodging establishments and public food service
   62  establishments. Further, the division shall enforce the
   63  provisions of the Florida Building Code which apply to public
   64  lodging establishments and public food service establishments in
   65  conducting any inspections authorized under this part. The
   66  division, or its agent, shall notify the local firesafety
   67  authority or the State Fire Marshal of any readily observable
   68  violation of a rule adopted under chapter 633 which relates to
   69  public lodging establishments or public food establishments. The
   70  identification of such violation does not require a firesafety
   71  inspection certification.
   72         (c)1. Relating to facility plan approvals, the division may
   73  establish, by rule, fees for conducting plan reviews and, in
   74  hardship cases, may grant variances from construction standards
   75  which are less restrictive than those specified in this section
   76  or the rules adopted hereunder. A variance may not be granted
   77  pursuant to this section until the division is satisfied that:
   78         a. The variance will not adversely affect the health of the
   79  public.
   80         b. No reasonable alternative to the required construction
   81  exists.
   82         c. The hardship was not caused intentionally by the action
   83  of the applicant.
   84         2. The division’s advisory council shall review
   85  applications for variances and recommend agency action. The
   86  division shall expedite emergency requests for variances to
   87  ensure that such requests are acted upon within 30 days of
   88  receipt.
   89         3. The division shall establish, by rule, a fee for the
   90  cost of the variance process. Such fee may not exceed $150 for
   91  routine variance requests and $300 for emergency variance
   92  requests.
   93         (2) PUBLIC LODGING ESTABLISHMENT INSPECTION OF PREMISES.—
   94         (a) The division has jurisdiction and is responsible for
   95  all inspections of public lodging establishments conducted under
   96  required by this chapter. The division is responsible for
   97  quality assurance. The division shall inspect each licensed
   98  public lodging establishment at least biannually, except for
   99  transient and nontransient apartments, which shall be inspected
  100  at least annually. Each establishment licensed by the division
  101  shall be inspected at such other times as the division
  102  determines is necessary to ensure the public public’s health,
  103  safety, and welfare. The division shall adopt by rule a risk
  104  based inspection frequency for each licensed public food service
  105  establishment. The rule must require at least one, but not more
  106  than four, routine inspections that must be performed annually,
  107  and may include guidelines that consider the inspection and
  108  compliance history of a public food service establishment, the
  109  type of food and food preparation, and the type of service. The
  110  division shall reassess the inspection frequency of all licensed
  111  public food service establishments at least annually. Public
  112  lodging units classified as vacation rentals or timeshare
  113  projects are exempt from not subject to this requirement but
  114  shall be made available to the division upon request. If, during
  115  the inspection of a public lodging establishment classified for
  116  renting to transient or nontransient tenants, an inspector
  117  identifies vulnerable adults who appear to be victims of
  118  neglect, as defined in s. 415.102, or, in the case of a building
  119  that is not equipped with automatic sprinkler systems, tenants
  120  or clients who may be unable to self-preserve in an emergency,
  121  the division shall convene meetings to develop a plan that
  122  improves the prospects for safety of affected residents and, if
  123  necessary, identifies alternative living arrangements, such as
  124  facilities licensed under part II of chapter 400 or under
  125  chapter 429. The meetings shall include representatives of with
  126  the following agencies as appropriate to the individual
  127  situation: the Department of Health, the Department of Elderly
  128  Affairs, the area agency on aging, the local fire marshal, the
  129  landlord and affected tenants and clients, and other relevant
  130  organizations, to develop a plan that improves the prospects for
  131  safety of affected residents and, if necessary, identifies
  132  alternative living arrangements such as facilities licensed
  133  under part II of chapter 400 or under chapter 429.
  134         (b) For purposes of performing required inspections and the
  135  enforcement of this chapter, the division has the right of entry
  136  and access to public lodging establishments and public food
  137  service establishments at any reasonable time.
  138         (c) Public food service establishment inspections shall be
  139  conducted to enforce provisions of this part and to educate,
  140  inform, and promote cooperation between the division and the
  141  establishment.
  142         (d) The division shall adopt and enforce sanitation rules
  143  consistent with law to ensure the protection of the public from
  144  food-borne illness in those establishments licensed under this
  145  chapter. These rules shall provide the standards and
  146  requirements for obtaining, storing, preparing, processing,
  147  serving, or displaying food in public food service
  148  establishments, approving public food service establishment
  149  facility plans, conducting necessary public food service
  150  establishment inspections for compliance with sanitation
  151  regulations, cooperating and coordinating with the Department of
  152  Health in epidemiological investigations, and initiating
  153  enforcement actions, and for other such responsibilities deemed
  154  necessary by the division. The division may not establish by
  155  rule any regulation governing the design, construction,
  156  erection, alteration, modification, repair, or demolition of any
  157  public lodging or public food service establishment. It is the
  158  intent of the Legislature to preempt that function to the
  159  Florida Building Commission and the State Fire Marshal through
  160  adoption and maintenance of the Florida Building Code and the
  161  Florida Fire Prevention Code. The division shall provide
  162  technical assistance to the commission in updating the
  163  construction standards of the Florida Building Code which govern
  164  public lodging and public food service establishments. Further,
  165  the division shall enforce the provisions of the Florida
  166  Building Code which apply to public lodging and public food
  167  service establishments in conducting any inspections authorized
  168  by this part. The division, or its agent, shall notify the local
  169  firesafety authority or the State Fire Marshal of any readily
  170  observable violation of a rule adopted under chapter 633 which
  171  relates to public lodging establishments or public food
  172  establishments, and the identification of such violation does
  173  not require any firesafety inspection certification.
  174         (e)1. Relating to facility plan approvals, the division may
  175  establish, by rule, fees for conducting plan reviews and may
  176  grant variances from construction standards in hardship cases,
  177  which variances may be less restrictive than the provisions
  178  specified in this section or the rules adopted under this
  179  section. A variance may not be granted pursuant to this section
  180  until the division is satisfied that:
  181         a. The variance shall not adversely affect the health of
  182  the public.
  183         b. No reasonable alternative to the required construction
  184  exists.
  185         c. The hardship was not caused intentionally by the action
  186  of the applicant.
  187         2. The division’s advisory council shall review
  188  applications for variances and recommend agency action. The
  189  division shall make arrangements to expedite emergency requests
  190  for variances, to ensure that such requests are acted upon
  191  within 30 days of receipt.
  192         3. The division shall establish, by rule, a fee for the
  193  cost of the variance process. Such fee shall not exceed $150 for
  194  routine variance requests and $300 for emergency variance
  195  requests.
  196         (b)(f) In conducting inspections of an establishment
  197  establishments licensed under this chapter, the division shall
  198  determine whether if each coin-operated amusement machine that
  199  is operated on the premises of a licensed establishment is
  200  properly registered with the Department of Revenue. Each month
  201  the division shall report to the Department of Revenue the sales
  202  tax registration number of the operator of any licensed
  203  establishment that has on its premises location a coin-operated
  204  amusement machine and that does not have an identifying
  205  certificate conspicuously displayed as required by s.
  206  212.05(1)(h).
  207         (g) In inspecting public food service establishments, the
  208  department shall notify each inspected establishment of the
  209  availability of the food-recovery brochure developed under s.
  210  595.420.
  211         (3) PUBLIC FOOD SERVICE ESTABLISHMENT INSPECTION.—
  212         (a) The division has jurisdiction and is responsible for
  213  all inspections of public food service establishments conducted
  214  under this part. The division is responsible for quality
  215  assurance. The division shall inspect each public food service
  216  establishment as often as necessary to ensure compliance with
  217  applicable laws and rules and at such other times as the
  218  division determines necessary to ensure the public health,
  219  safety, and welfare. The division shall conduct public food
  220  service establishment inspections to enforce this part, to
  221  educate and inform the establishments, and to promote
  222  cooperation between such establishments and the division.
  223         (b)The division shall adopt and enforce sanitation rules
  224  to ensure the protection of the public from food-borne illnesses
  225  in establishments regulated under this chapter. These rules
  226  shall provide the standards and requirements for obtaining,
  227  storing, preparing, processing, serving, and displaying food in
  228  public food service establishments, approving public food
  229  service establishment facility plans, conducting necessary
  230  public food service establishment inspections for compliance
  231  with sanitation requirements, cooperating and coordinating with
  232  the Department of Health in epidemiological investigations,
  233  initiating enforcement actions, and administering other such
  234  responsibilities as deemed necessary by the division.
  235         (c) The division shall adopt by rule a risk-based
  236  inspection frequency for each licensed public food service
  237  establishment. The rule must require at least one, but not more
  238  than four, routine inspections that must be performed annually
  239  and may include guidelines that consider the inspection and
  240  compliance history of a public food service establishment, the
  241  type of food and food preparation, and the type of service. The
  242  division shall annually reassess the inspection frequency of all
  243  licensed public food service establishments.
  244         (d) Upon completion of an inspection of an establishment
  245  under this section, the public food service establishment
  246  inspector shall produce a written report and assign a numerical
  247  score based on his or her findings. Critical and noncritical
  248  violations shall be assigned a point value, which shall be
  249  subtracted from a maximum score of 100 points. The inspector
  250  shall assign one of the following letter grades to the public
  251  food service establishment:
  252         1. An “A” grade, which indicates that the establishment is
  253  in good operating condition and received a numerical score of at
  254  least 90 points. The inspector may have observed low-risk health
  255  and safety violations during the course of the inspection but
  256  did not observe more than one noncritical or critical violation.
  257         2. A “B” grade, which indicates that the establishment is
  258  in adequate operating condition and received a numerical score
  259  of at least 86 points but not more than 89 points. The inspector
  260  must have observed one or more noncritical violations, but did
  261  not observe more than one critical violation.
  262         3. A “C” grade, which indicates that the establishment
  263  needs improvement and received a numerical score of at least 71
  264  points but not more than 85 points. The inspector must have
  265  observed more than one noncritical violation and more than one
  266  critical violation.
  267         4. A “U” grade, which indicates that the establishment is
  268  in poor operating condition and received a numerical score of 70
  269  or fewer points. The inspector must have observed three or more
  270  noncritical violations and more than three critical violations.
  271         (e)1. The operator of a public food service establishment
  272  that fails to achieve a letter grade of “A” upon initial
  273  inspection under this subsection may request a reinspection from
  274  the division, for which the division may charge a reasonable
  275  fee.
  276         a. Requests for reinspection must be made within 14 days
  277  after the initial inspection. The resulting grade is final
  278  unless a hearing is requested.
  279         b. Within 7 days after the reinspection, an operator of a
  280  public food service establishment may submit a written request
  281  for a hearing to contest the assigned letter grade received
  282  during the reinspection and request an additional inspection.
  283         2.The division may increase the frequency of inspections
  284  for a public food service establishment that fails to achieve a
  285  letter grade of “B” or higher during an initial or subsequent
  286  inspection under this subsection.
  287         (f)1. A public food service establishment shall at all
  288  times post its current letter grade card in a front window; in a
  289  display case on an outside wall within 5 feet of the front door;
  290  on a drive-through menu board, if it operates a drive-through
  291  window; or on a menu board at a market or deli. Failure to post
  292  the letter grade card or an attempt to hide, camouflage, or
  293  remove the letter grade card may result in a fine and the
  294  suspension of the establishment’s license. The division shall
  295  post the inspection report on the Department of Business and
  296  Professional Regulation website in a form searchable by
  297  establishment name, critical violations, noncritical violations,
  298  letter grade, and type of establishment.
  299         2.An operator of a public food service establishment shall
  300  maintain a copy of the latest food service inspection report on
  301  the premises and shall make it available to the public upon
  302  request. If an operator has requested a reinspection, he or she
  303  may inform the public that the current inspection results are
  304  under review and that reinspection results may be obtained from
  305  the division.
  306         3. The division shall establish a toll-free telephone
  307  hotline that allows an operator to file a complaint regarding an
  308  inspection, and the number of the hotline shall be included in a
  309  pamphlet provided by the division which explains the inspection
  310  process.
  311         4. The division shall appoint a consumer advocate to
  312  represent the health and safety of the general public in issues
  313  regarding public food service establishments.
  314         (g) An inspector may, in his or her discretion, immediately
  315  close a public food service establishment that fails to achieve
  316  a letter grade of “C” or higher.
  317         (h) In conducting inspections of an establishment licensed
  318  under this chapter, the division shall determine whether each
  319  coin-operated amusement machine that is operated on the premises
  320  is properly registered with the Department of Revenue. Each
  321  month the division shall report to the Department of Revenue the
  322  sales tax registration number of the operator of any licensed
  323  establishment that has on its premises a coin-operated amusement
  324  machine that does not have an identifying certificate
  325  conspicuously displayed as required by s. 212.05(1)(h).
  326         (i) When inspecting public food service establishments, the
  327  division shall provide each inspected establishment with the
  328  food recovery program brochure developed under s. 595.420.
  329         Section 2. Subsection (1) of section 509.233, Florida
  330  Statutes, is amended to read:
  331         509.233 Public food service establishment requirements;
  332  local exemption for dogs in designated outdoor portions.—
  333         (1) LOCAL EXEMPTION AUTHORIZED.—Notwithstanding s.
  334  509.032(8) s. 509.032(7), the governing body of a local
  335  government may establish, by ordinance, a local exemption
  336  procedure to certain provisions of the Food and Drug
  337  Administration Food Code, as currently adopted by the division,
  338  in order to allow patrons’ dogs within certain designated
  339  outdoor portions of public food service establishments.
  340         Section 3. This act shall take effect July 1, 2016.