Hercules Municipal Code Art. 1 General Provisions

For the purposes of this Chapter, certain words and phrases are defined as follows:

(a)

"Employee"

means any person who, with or without pay, works or handles food in a food-handling establishment or who offers food for sale.

(b)

"Food"

includes all articles used for food, drink, confectionery, or condiment, whether simple or compound, and all substances and ingredients used in the preparation thereof.

(c)

"Food handling establishment"

includes restaurants and food selling and processing establishments, except that the provisions of this Chapter shall not apply to meat, milk, and poultry processing establishments, frozen food lockers, canneries and slaughter houses inspected by Federal or State agencies, nor to such other plants and establishments for the packing, treatment and processing of agricultural products and crops of all kinds, including, but not limited to, plants or establishments for the packing, treating, canning, freezing, dehydrating and other processing and packaging of agricultural products and crops, and the manufacturing or other processing of byproducts therefrom, where such plants or establishments, or the products thereof, are subject to inspection by Federal or State agencies, to insure that such products are in a sanitary condition and suitable for human consumption and which do not sell or deliver directly to the ultimate consumer.

(d)

"Food selling and processing establishment"

means any room, building, vehicle, facility, structure, or place or portion thereof, whether stationary, movable, permanent or temporary, which is maintained, used or operated for the purpose of commercially selling, storing, packaging, transporting, making, cooking, mixing, processing, bottling, canning, packing, slaughtering or otherwise preparing or handling food, or vendors servicing vending machines handling unwrapped, unbottled or unpackaged or readily perishable food. This definition shall not include restaurants, tank trucks, fresh produce trucks, farm trucks, or vehicles delivering only nonperishable food products in sealed, wrapped or bottled containers, or vending machines dispensing only bottled beverages or wrapped candy.

(e)

"Health Officer,"

unless otherwise modified, means the Health Officer of the City of Hercules, his medical deputies, his sanitarians, or his duly authorized representatives.

(f)

"Itinerant food-handling establishment"

means one which operates for a temporary period in connection with a fair, carnival, circus, public exhibition or other similar gathering.

(g)

"Restaurant"

means any restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, tavern, sandwich stand, soda fountain, vehicle and any other eating or drinking establishment which sells or offers food or drink for sale to the public, as well as kitchens in which food or drink is prepared on the premises for sale or distribution elsewhere.

(h)

"Utensils"

includes kitchenware, tableware, glassware, cutlery, containers, machinery, implements, receptacles, supplies or other equipment used for the storage, preparation, distribution or serving of food or drink.

(i)

"Expanded polystyrene"

means and includes blown polystyrene and expanded and extruded foams (commonly and often incorrectly called Styrofoam®, a Dow Chemical Co. trademarked form of polystyrene foam insulation) that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expanded bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene). For the purposes of this Chapter, the term "polystyrene" shall not include clear polystyrene known as "oriented polystyrene."

(j)

"Nonprofit food provider"

means a recognized tax-exempt organization that provides food as a part of its services.

(k)

"Prepared food"

means food that is prepared by cooking, chopping, slicing, mixing, brewing, freezing, squeezing, or other on-site means and served on the vendor's premises. Prepared food does not include any raw uncooked meat or eggs. Prepared food may be eaten or consumed either on or off the vendor's premises.

(l)

"Retail food vendor"

means any store, shop, sales outlet, or other establishment, including a grocery store or a delicatessen, located within the City, which provides prepared food.

(Ord. 436 § 1, 2008)

All food handling establishments shall comply with all applicable statutes, ordinances and rules and regulations of Federal, State and local agencies.

No permit shall be issued by any agency of the City to any person proposing the construction, reconstruction, alteration or use of any structure for use as a food handling establishment until such plans as relate to this Chapter have been approved by the Health Officer.

Where food service openings to the outside are used in restaurants, such openings shall have an area not exceeding two hundred seventy (270) square inches with a maximum width of eighteen (18") inches and a maximum height of fifteen (15") inches. Triangular wide base openings with a height not exceeding twenty-four (24") inches shall be permitted. Openings shall be separated by a minimum of three (3') feet. Such openings shall be closeable with a wire screen not coarser than sixteen (16) mesh when not in use. Each opening shall be further protected by overhead fans or internal positive pressure which would produce an outward air flow of at least seventy-five (75) linear feet per minute as measured by a standard velometer, or shall have a system of duct work such that the discharge of air produces such outward flow of air through the opening.

All readily perishable foods shall be maintained at forty-five degrees (45°) when in storage, on display, or in transit. Accurate Fahrenheit thermometers, suitable for measuring temperatures of food, shall be conspicuously affixed to food storage equipment, where possible, or shall be available at every establishment. Waste water from refrigeration equipment in fixed establishments shall be disposed of into an approved sanitary sewage disposal system through an indirect connection. Except for properly handled game, only food intended to be sold or served to the public shall be kept in refrigerated storage cabinets. All frozen foods shall be kept at a temperature which will keep such food in a frozen state. No food which has been thawed shall be refrozen.

Readily perishable foods shall include, but not be limited to, the following items:

(a) Custard and creme-filled pastries, both real and synthetic, prepared salads with dressing, sandwiches using mayonnaise or salad dressing in the filling, and precooked meat, poultry and fish products not hermetically sealed;

(b) Fresh meats, fresh shell fish, fresh poultry and fresh fish;

(c) All dairy products from sources not under inspection by other agencies; and

(d) Canned hams and canned picnics containing labels indicating the product must be kept under refrigeration.

No person shall keep live chickens, ducks, geese, turkeys or other live fowl or animals where foodstuffs are prepared for sale or sold, or in any cellar or basement underneath any grocery store, market or place where foodstuffs are kept for sale.

If, at any time, a person working in any food handling establishment is found by the Health Officer to be handling food in a manner dangerous to the public health, the Health Officer shall have the authority to require such person and/or his employer to attend, free of charge, a course of instruction which shall be provided by the Health Officer, or to discontinue handling food, or both.

It shall be the duty of any Health Officer or Meat Inspector, and they are hereby empowered, to enter and inspect any premises regulated by this Chapter during regular working hours.

(a) Food Utensil Prohibitions.

(1) No restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider shall provide prepared food to its customers in any utensils made of expanded polystyrene.

(2) The City shall prohibit the use or distribution of expanded polystyrene utensils at all City facilities. The City shall not purchase or acquire expanded polystyrene utensils.

(3) The use or distribution of expanded polystyrene utensils for service of prepared food at events sponsored, co-sponsored, or approved by permit by the City is prohibited. This prohibition shall apply to the event organizers, agents of the event organizers, event retail food vendors, and any other party (including nonprofit organizations) who enter into an agreement with one or more of the co-sponsors of the event to sell or provide prepared food at the event or otherwise provide an event-related service.

(4) All facility rental agreements for any City-owned or leased property or facility shall include a provision requiring contracting parties to assume responsibility for preventing the use and distribution of expanded polystyrene utensils for service of prepared food at the associated function. The facility rental agreement shall indicate that the violating contractor's security deposit will be forfeited if the City Manager, or his/her designee, determines that expanded polystyrene utensils were used in violation of the rental agreement.

(b) Exceptions.

(1) Food items packaged outside the boundaries of the City are exempt from the provisions of this Section.

(2) The City Manager, or his/her designee, may exempt a restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider from the requirements of this Section for a one (1) year period, upon showing by the applicant that the conditions of this Section would cause undue hardship. The phrase "undue hardship" shall be construed to include, but not be limited to:

A. Situations where there are no acceptable alternatives to expanded polystyrene utensils for reasons which are unique to the restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider;

B. Situations where compliance with the requirements of this Section would deprive a person of a legally protected right.

(3) Coolers and ice chests made of expanded polystyrene are exempt from the provisions of this Section.

(4) Food utensils required to be purchased under a contract entered into less than one (1) year prior to the effective date of the ordinance codified in this Section are exempt from the provisions of this Section. This exemption will apply up to one year from the effective date of the ordinance codified in this Section.

(c) Enforcement and Notice of Violations.

(1) The City Manager or his/her designee shall have primary responsibility for enforcement of this Section. The City Manager or his/her designee is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this Section, including, but not limited to, inspecting the premises of any restaurant, retail food vendor, itinerant food-handling establishment, or nonprofit food provider to verify compliance.

(2) Anyone violating or failing to comply with any of the requirements of this Section, or of any regulation or administrative procedure authorized by it, shall be guilty of an infraction.

(3) The City Attorney may seek legal, injunctive, or other equitable relief to enforce this Section and any regulation or administrative procedure authorized by it.

(4) The remedies and penalties provided in this Section are cumulative and not exclusive of one another.

(d) Penalties and Fines for Violations. The City Manager or his/her designee, upon determining that a violation of this Section has occurred, shall enforce this Section by issuing to the violator as follows:

(1) For a first violation, a written warning notice that specifies the violation and the appropriate penalties in the event of future violations.

(2) For the first violation following the issuance of a warning notice, a fine not exceeding one hundred dollars ($100.00).

(3) For the second and any other violation that occurs following the issuance of a warning notice, a fine not exceeding two hundred fifty dollars ($250.00).

(4) Fines are cumulative and each day that a violation occurs shall constitute a separate violation.

(Ord. 436 § 2, 2008)