Chapter 7.07 — FOOD AND FOOD ESTABLISHMENTS

Section

• 7.07.001 Definitions
• 7.07.002 Permits for restaurants and other food establishments; required; exception
• 7.07.003 Same; application
• 7.07.004 Same; issuance
• 7.07.005 Same; display
• 7.07.006 Same; transferability
• 7.07.007 Same; suspension or revocation
• 7.07.008 Evidence of intent to sell food
• 7.07.009 Seizure and destruction of unwholesome food
• 7.07.010 Meat for sale to be inspected and approved
• 7.07.011 Meat products for sale to be prepared in accordance with state law
• 7.07.012 Protection and sanitation of foods prior to sale
• 7.07.013 Construction requirements for restaurants and other food establishments
• 7.07.014 Sanitation requirements
• 7.07.015 Canopies required for commercial stoves and the like
• 7.07.016 Certificates of inspection for head lettuce and salad products required and definitions
• 7.07.017 Inspections and certificate, certification stamp or device mandatory; notification to
• Agricultural Commissioner of head lettuce harvest
• 7.07.018 Inspection and certificate for salad products mandatory [Reserved]
• 7.07.019 Harvested amounts - reports
• 7.07.020 Fees for lettuce inspection - schedule
• 7.07.021 Fees for salad products inspection - schedule [Reserved]
• 7.07.022 Payment of fees
• 7.07.023 Fee-use-refunds
• 7.07.024 Exemption
• 7.07.025 Violations of lettuce inspection requirements
• 7.07.026 Administration and enforcement of chapter
• Statutory reference:
• Retail food practices, see Cal. Health and Safety Code §§ 113700 et seq.
• Authority of county to require certificates of inspection of vegetables, see Cal. Food and Agriculture Code § 42791
• Fees for certificates, see Cal. Food and Agriculture Code § 42793

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section. FOOD. All articles used for food, drink, confectionery or condiment, whether simple or compound, and all substances and ingredients used in the preparation thereof. FOOD ESTABLISHMENT. Any public or private market, shop, store, delicatessen, candy factory, tortilleria or other place, not a public eating or drinking establishment, in or about which any food, foodstuffs or provisions are kept, held, sold, prepared, compounded or offered for sale for human consumption. The establishments specifically include but shall not be restricted to grocery stores and warehouses; candy and confectioners’ plants or stores; bakeries; bottling works; food and condiment packing houses; fruit and vegetable stands; markets or other premises where meat or meat food products, sausage, fish, dressed poultry, rabbit or game are kept, stored, handled, manufactured or offered for sale; ice stations; all food processing or cannery plants of any type.

RESTAURANT. Any coffee shop, cafeteria, short-order café, luncheonette, tavern, bar, sandwich stand, soda fountain, public school lunch room or cafeteria, labor and construction camp kitchens and dining rooms, public boardinghouse, club and any other eating or drinking establishment which sells or offers for sale food to the public, as well as kitchens, box lunch establishments, catering services, barbecue pits in which food or drink is prepared on the premises, for sale on the premises or distribution elsewhere. The term shall also include all cafeterias or restaurants serving commercial establishments as part of the organization and serving the public, whether as employees or visitors. (1966 Code, § 7-1) (Ord. 187, Art. 1)

No person shall operate or conduct a restaurant or food establishment or sell, offer for sale, distribute or have in possession for sale or distribution any food or drink intended for human consumption in the county unless he or she possesses a permit to do so from the county’s Health Officer. No permit shall be required of any food processing plant, cannery or other food establishment licensed by the state’s Department of Health, by the Bureau of Meat Inspection of the state’s Department of Agriculture or by the Meat Inspection Division of the United States Department of Agriculture. (1966 Code, § 7-2) (Ord. 187, Art. 2, § 1)

Any person intending to operate a restaurant or food establishment shall, before opening or operating the establishment, make application for a permit to the county’s Health Officer upon a form provided by the Health Officer and shall contain the name of the owner or manager thereof, the location and such other information that the Health Officer may require for the administration of this chapter. The application shall further require a signed statement that the applicant will observe the provisions of this chapter. (1966 Code, § 7-3) (Ord. 187, Art. 2, §§ 2, 3)

Following receipt of an application for a permit under this chapter by the county’s Health Officer, he or she shall make or cause to be made an inspection of the premises of the applicant, and if the provisions of this chapter and all other applicable state and county laws have been complied with by the applicant, the Health Officer shall certify that fact to the applicant and issue to him or her a permit to operate. (1966 Code, § 7-4) (Ord. 187, Art. 2, § 4)

Every permit required by this chapter shall, at all times, be displayed in a conspicuous place on the premises of the applicant to whom it was issued. (1966 Code, § 7-5) (Ord. 187, Art. 2, § 5)

Every person who sells, exchanges, gives away, abandons or discontinues any restaurant or food establishment within the unincorporated areas of the county, and every person who shall purchase or otherwise acquire any such restaurant or food establishment in the area, shall immediately notify the county’s Health Officer, his or her assistant, or duly authorized representative, as to the fact thereof and the restaurant or food establishment shall be prohibited from operating after the sale, exchange, abandonment or discontinuance until a new permit has been applied for and issued pursuant to the provisions of this chapter. (1966 Code, § 7-6) (Ord. 187, Art. 2, § 9)

(A) If it is determined by the county’s Health Officer, following any investigation or inspection of a restaurant or food establishment that the operator, owner or manager thereof has not complied with the provisions of this chapter or with the laws of the state, the Health Officer may, in his or her discretion, immediately suspend and seize the permit issued to operate the restaurant or food establishment. Any owner, operator or manager of a restaurant or food establishment whose permit has been suspended and seized shall have a reasonable time within which to correct the violations of this chapter or of the laws of the state leading to the suspension and seizure, and if the corrections are not made within a reasonable time not to exceed 120 days, the Health Officer shall revoke the permit. (B) Before a suspended permit shall be reinstated, the owner, operator or manager of any restaurant or food establishment for which the permit to operate has been suspended shall be required to correct the conditions which caused the county’s Health Officer to suspend the permit. Upon the corrections, the permit to operate shall be returned to the permittee.

(C) In case a permit has been revoked, it shall not be reinstated, and the owner, operator or manager of a restaurant or food establishment whose permit has been revoked shall forthwith cease to operate the restaurant or food establishment and shall only be entitled to commence the operation after making a new application as provided for in this chapter and after having received a new permit to operate. (1966 Code, § 7-7) (Ord. 187, Art. 2, §§ 6, 7, 8)

The presence in or about the place of business of any person dealing in food, or in or about any vehicle used by any such person for the delivery of food, shall be prima facie evidence of intent on the part of such person to sell the same and the fact that he or she is holding or offering the same for sale. (1966 Code, § 7-8) (Ord. 187, Art. 2, § 10)

The county’s Health Officer, his or her assistant or his or her duly authorized representative are authorized and directed to seize and destroy or denaturize any tainted, diseased, decayed or partially decayed or unwholesome meat, fish, shell fish, fowl, fruits, vegetables or other unwholesome food found within the unincorporated areas of the county. (1966 Code, § 7-9) (Ord. 187, Art. 2, § 11)

No person shall sells offer for sale, distribute or have in possession for sale or distribution in the unincorporated areas of the county, the flesh of any cattle, horse, sheep, lamb, swine or goat unless the same bears on each primal part thereof the “inspected and passed” stamp of an establishment operating under federal inspection, state inspection or approved municipal inspection. (1966 Code, § 7-10) (Ord. 187, Art. 2, § 12)

No person shall sell, offer for sale, distribute or have in possession for sale or distribution in the unincorporated areas of the county any sausage or other prepared meat or seafood products unless the same has been manufactured or prepared in accordance with the laws of the state. (1966 Code, § 7-11) (Ord. 187, Art. 2, § 13)

(A) No person shall sell, expose or offer for sale, or cause or permit to be sold, exposed or offered for sale, in the county, any article of food prepared for human consumption, including crackers; rolls; buns; biscuits; muffins; bread; cake; cookies; pies; candies; cooked, smoked or pickled meat or fish; cooked, dried or pickled vegetables or fruit; salad; butter; cheese; or any article of food intended for human consumption, which article of food is smoked, dried or otherwise prepared and intended for human consumption without further cooking, washing or other preparation, unless the article or articles of food are covered or enclosed by glass or with some substance or material in such a manner as to prevent the handling of any such article or articles for sale by any person other than the person selling, offering or exposing any such article or articles for sale; and to prevent any such article of food from coming in contact with any deleterious, unwholesome or unhealthy substance or commodities; provided, that the provisions of this section shall not apply to uncovering food in the process of preparation or display for immediate consumption on the premises where steam tables or other service tables approved by the Health Department are in use and properly protected from unwholesome or unhealthy contamination as provided in this chapter. (B) All foods and beverages in the process of preparation, distribution or display shall be securely protected from flies, dust, dirt and other foreign, injurious contamination. (C) All kitchens of hotels, restaurants, lunch counters, cafeterias, candy factories, soda fountains, ice cream parlors or other places where food is prepared or kept shall have wire screens at all outside openings for the purpose of excluding flies and other insects. All screened doors shall be self closing. In addition to the screens so provided, all foods shall be protected from dust, dirt and flies. All screening used in such places shall be no less than 14 inch mesh. (D) All surplus boxes, crates, lug boxes and similar containers in which fruits, vegetables and other products are delivered or received by a restaurant or other food establishment shall be kept in orderly condition, and shall not be allowed to accumulate on the premises. Each container shall be kept in a clean and sanitary condition and removed from premises daily, or at intervals determined by the Health Officer. (E) Deciduous fruits, or other foods subject to damage by the rays of the sun, shall be kept, at all times, well inside of any building of a food establishment or other restaurant and elevated not less than 18 inches above the floor level. (1966 Code, § 7-12) (Ord. 187, Art. 2, §§ 16, 17, 23, 26, 27)

(A) Every establishment where food is handled, prepared, sold or distributed shall be properly lighted, drained, ventilated and adequate plumbing and sanitary drainage installed in accordance with the regulations of the county’s Health Department. (B) The floors of restaurants and other food establishments shall be of good non-absorbent material, and shall be kept in a clean sanitary condition at all times. The walls and ceilings shall be smooth, sound and cleanable, and shall be kept painted with oil paint or other approved finishing material and maintained in a clean, and sanitary condition. The walls in the proximity of sinks, mixers, stoves, ranges or other equipment where water, grease or matter is likely to be splashed on the walls, shall be constructed with tile or other approved material of sufficient height thoroughly to protect the walls; provided, that the back of stoves may be flashed with metal. (C) All drain boards shall be made or constructed of metal tile or tile substitutes. The use of wooden drain boards, or wooden drain boards covered with metal, is prohibited. (1966 Code, § 7-13) (Ord. 187, Art. 2, § 18, 19, 20)

(A) Every restaurant or other food establishment shall be equipped with a water flush toilet, sink and running water, which shall be so located as to be convenient to the rooms used for food handling purposes. All toilets shall be adjacent to lavatories or washrooms, which shall, at all times, be supplied with soap and towels. The floors of the toilet rooms shall be of cement, tile laid in cement or other non- absorbent material. No door or other opening from a toilet room shall open directly into a kitchen, dining room or other place where foods are served, cooked or prepared. (B) When such an opening occurs an anteroom ventilated to the outer air with a solid door shall be provided between the lavatory, kitchen or food establishment. No owner, proprietor or manager of any establishment shall provide or expose any toweling or similar article, except individual paper towels, for use of the public generally in any place under his or her control, or permit any cloth towel or similar article to be provided or exposed unless the towel has been laundered after each separate use. (C) The owner, operator or manager of every food handling place shall take every precaution to keep the premises free and rid of rats, mice, roaches, ants or other vermin or pests. (D) Whenever it shall appear to the satisfaction of the Health Officer that any premises or establishment engaged in the handling or preparation of food for sale or distribution is infested with rodents, vermin or pests, a written notice shall be given to the person owning, controlling, leasing or acting as agents for or managing the establishment that the infestation with rodents, vermin or pests constitutes a public nuisance and endangers public health, peace and safety, and that the infestation shall be abated within 30 days from the date of receiving written notice. Failure to comply with the written notice in 30 days shall constitute a violation of the provisions of this chapter and the Health Officer shall suspend the permit and close the establishment until the nuisance has been abated. (E) No dogs, cats or other animals shall be harbored or permitted in any establishment where food is prepared for sale or distribution. (F) No owner, proprietor or manager of any food establishment shall provide or use on the floors any sawdust or similar material, except that butcher shops may use sawdust on floors in a cooler or behind a counter. (G) Sufficient metal garbage cans, with fly-tight covers, shall be provided for all garbage, vegetable trimmings, trash or other refuse from a restaurant or other food establishment. A sufficient number of cans shall be available to prevent overloading and tight-fitting covers shall, at all times, be kept in place. Where there is an excess of vegetable trimmings or other waste material subject to decomposition, a screen room shall be constructed of screen wire of not less than 14 mesh to the inch and shall be fly tight. All such excess waste materials shall be kept in the screen room until removal from the premises. All garbage or food waste products subject to fermentation or decomposition shall be removed each day except Sunday or legal holidays when the establishments are closed to the public. (1966 Code, § 7-14) (Ord. 187, Art. 2, §§ 21, 22, 24, 25, 28)

All stoves, ranges, candy kettles, doughnut kettles, ovens and hot plates in restaurants and other food establishments shall be equipped with a metal canopy of a size at least four inches longer than the entire cooking surface of the cooking device, on all sides. The canopy shall be ventilated to the outside air by a separate ventilating flue of not less than six inches in diameter, for an ordinary stove, or as much larger as the Health Department may deem necessary for effective operation. (1966 Code, § 7-15) (Ord. 187, Art. 2, § 29)

The Board of Supervisors exercises the option provided for in Cal. Food and Agricultural Code, Division 17 to require certificates of inspection on all head lettuce and salad products packed for sale in the county and to establish a schedule of

fees for such inspection. As used in this chapter, the following words or phrases shall have the following meanings: (A) AGRICULTURAL COMMISSIONER means the Agricultural Commissioner of San Benito County, or his/her designated representative. (B) COMMERCIAL means an activity carried on for the primary purpose of procuring subsistence or profit. (C) PERSON means any individual, firm, partnership, joint venture, corporation, association, club or organization. (Ord. 837, § 1)

COMMISSIONER OF HEAD LETTUCE HARVEST. (A) It shall be unlawful to sell, transport or ship or have in his/her possession for sale, transportation or shipment for a commercial purpose any head lettuce without first obtaining from the Agricultural Commissioner an inspection certificate, certification stamp or device issued in accordance with the provisions of Cal. Food and Agricultural Code §§ 42791, 42792 and 42792.1. (B) It is unlawful for any grower, harvester, packer or shipper that intends to harvest head lettuce in San Benito County to do so without notifying the Agricultural Commissioner's office within 24 hours of the time that the work is to begin and the location of the field, lot, address, grower's name or ranch name that is intended to be harvested. Notice of any harvest of head lettuce occurring on a Saturday or Sunday shall be provided by noon on Friday. (Ord. 837, § 2)

Each financially interested packer, shipper or company that harvest head lettuce within San Benito County shall be responsible for recording and reporting daily harvest totals on a monthly report to be submitted by the tenth of the following month to the Agricultural Commissioner.

A schedule of fees for the inspections required by § 7.07.017 to be paid for by the owners, shippers or other interested persons, shall be established by resolution of the Board of Supervisors, from time to time, for the following: (A) For all lettuce inspected in standard containers or equivalent; and (B) For standard bulk bins, per standard carton equivalent.

The fees provided for in §§ 7.07.017 and 7.07.018 shall be paid to the county through the Office of the Agricultural Commissioner. The fees shall be due and payable on the first day of the month following the month in which the inspection was performed, and shall be delinquent on the tenth day of the following month. A grower, shipper or other interested person whose account becomes delinquent may, at the discretion of the Agricultural Commissioner, be required to pay the fees at the time of issuance of the certificates.

(A) The fees paid pursuant to § 7.07.021 shall be deemed to be advances toward defraying the actual costs of inspection in excess of the moneys appropriated for that purpose, and shall be held pending determination of such actual additional costs. (B) The determination of actual additional costs shall be made annually on a calendar fiscal year basis, and any money paid in and not used for purposes of this chapter shall be refunded, in proportion to the inspection fees paid in, to the owners, shippers or interested parties from whom the money was originally collected, or their assignees, or persons, firms, corporations, or associations authorized by the owners, shippers, or interested parties to receive the moneys. Refunds shall be made on or before September 30 following the close of the calendar fiscal year by warrants drawn in payment of approved and authenticated claims submitted to the County Auditor-Controller by the persons, firms, corporations or associations entitled and authorized to receive the funds. The refunds shall be reduced, on a similar proportional basis, by any excess of costs incurred over fees collected for the first six months of the current calendar year. In the event such reduction takes place, it shall be considered as an additional credit for the current calendar year.

This chapter shall not apply to head lettuce which is exempt under the provisions of California Administrative Code, Title 3, § 1390; provided, however, that a valid permit for such exemption has been issued by the Agricultural Commissioner pursuant to California Administrative Code, Title 3, § 1390.1, unless such a permit is not required pursuant to Cal. Food and Agricultural Code § 43332. (Ord. 837, § 5)

(A) Administrative penalties. Pursuant to Cal. Gov't Code § 53069.4, the county may impose administrative penalties for the violations of §§ 7.07.017 and 7.07.019 in an amount not to exceed $100 for a first violation, $200 for a second violation and $500 for the third or more violation for each day during which any person commits, continues, allows or maintains a violation of those sections. The Agricultural Commissioner or his/her designee, may cause any person to be issued an administrative citation as specified below. An owner or manager shall be responsible for ensuring that lettuce inspection code requirements are complied with for all fields under their supervision and control. (1) Any notice of citation issued shall: identity the date, time and circumstances of the violation; state the amount of the penalty fee to be imposed; and advise the person of their appeal rights as provided herein. (2) The administrative citation shall be served as set forth below. (a) By personal service; or (b) By mail, certified, return receipt requested, to the owner of the property at the address shown on the last equalized assessment roll, or to the person responsible for or committing the act at that person's permanent mailing address. Should the service by certified mail, return receipt be returned as "refused or unclaimed," service may be made by posting a copy of the notice prominently and conspicuously upon the property where the violation occurred and mailing a copy of the notice by regular U.S. mail to the owner and any known responsible party. (c) When service of the notice of administrative violation is made by personal service, or posting, proof of service shall be certified to at the time of service by a written declaration. When service is made via certified mail, the card returned in acknowledgment of receipt shall be affixed to a copy of the notice and order retained by the director or his/her designee. The failure of any person to receive the notice does not affect the validity of any proceedings taken under this chapter. (3) The amount of the penalty fee imposed shall be set by the Agricultural Commissioner or his/her designee. In determining the amount of civil penalty to be assessed against any person, consideration will be given to the following: (a) The extent to which the person had knowledge or reasonably should have known that the action taken was a violation of the San Benito County Code; (b) The magnitude of the violation; (c) The extent to which the person derived a financial benefit from the violation; (d) Any prior history of related violations by the same person; and (e) Any corrective action, or lack thereof, taken by the person to eliminate the violations, and any other mitigating circumstances justifying a reduction of the amount of the penalties. (4) Any person receiving the administrative citation may request an appeal hearing, in writing, within 15 days from the date of service of the administrative citation. The request for hearing shall be addressed to the Agricultural Commissioner and shall be deemed served only when received by the county. Failure to properly serve the request for hearing within the 15-day period shall be deemed a waiver of right to appeal the matter, and the decision to impose the penalty fee will become final. (5) The appeal hearing shall be held before a hearing board, consisting of two or more members appointed by the Board of Supervisors, or a hearing officer appointed by the County Administrative Officer or his/her designee. A hearing officer shall be a member of the California Bar admitted to practice no less than five years as required by Cal. Gov't Code § (6) Upon conclusion of the hearing, the hearing board or hearing officer shall serve written notice of his/her decision, which shall be final. The costs of the hearing officer shall be borne by the losing party, unless as otherwise determined by the hearing officer. Each party shall be responsible for his/her own attorney's fees. (7) Notwithstanding Cal. Code of Civil Procedure §§ 1094.5 or 1094.6, within 20 days after the date action is taken by the hearing board or hearing officer, a person contesting that final administrative decision may seek review by filing an appeal in the San Benito County Superior Court pursuant to Cal. Gov't Code § 53069.4(b). If no notice of appeal to the Superior Court is filed within the period set forth in this section, the order or decision of the county shall be deemed confirmed. (B) Criminal penalties. Any person violating §§ 7.07.016 et seq. shall be deemed guilty of an infraction as hereinafter specified. Such person shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation is committed, continued, or permitted. Any person so convicted shall be: guilty of an infraction offense and punished by a fine not exceeding $100 for a first violation; guilty of an infraction offense and punished by a fine not exceeding $200 for a second violation. The third and any additional violations shall be punishable by a fine not exceeding $500. Payment of any penalty herein shall not relieve a person from the responsibility for correcting the violation.

(Ord. 837, § 6)

The county's Health Officer is hereby authorized to promulgate such rules and regulations as may be necessary to insure the proper sanitation in all restaurants and food establishments and for the proper and orderly administration of this chapter. (1966 Code, § 7-16) (Ord. 187, Art. 2, § 15; Ord. 837, § 7)