16 Del. Admin. Code § 4458-3.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 4458-3.0 - Miscellaneous Provisions for the Delaware Division of Public Health

3.1 Amend Chapter 8 by adding thereto a new subpart 8-305.10 to read as follows:

"8-305.10 Alternative Food Establishments

The regulatory authority may authorize alternative food establishments to operate, following plan review and given that specific requirements are met for each type.

(A) Requires a signed Servicing Area Agreement:

(1) Caterer without A Premise;

(2) Limited Frozen Dessert Stand; and

(3) Mobile Food Establishment.

(B) May require a signed Servicing Area Agreement:

(1) Temporary Food Establishment."

3.2 Amend Chapter 8 by adding thereto a new subpart 8-305.11 to read as follows:

"8-305.11 Alternative Food Establishment Closed or Suspended Permit

Alternative Food Establishments that require a servicing area must cease operations if the servicing area's permit is suspended or closed."

3.3 Amend Subpart 8-401.10(B)(2) by deleting the existing text and by inserting in lieu thereof the following: "The food establishment is assigned a less frequent inspection schedule that is being uniformly applied throughout the jurisdiction. The REGULATORY AUTHORITY will assign a risk category that correlates with inspection frequency. The categories are: VERY LOW RISK, LOW RISK, MEDIUM RISK and HIGH RISK."

3.4 Amend Subpart 8-404.11(A) by deleting the words "an apparent foodborne illness outbreak" and by inserting in lieu thereof the following: "a PROBABLE or CONFIRMED FOODBORNE DISEASE OUTBREAK".

3.5 Amend Chapter 8 by adding thereto a new Part 8-6 to read as follows:

"8-6 Enforcement Procedures

8-601 Re-inspection Fee

8-601.10 Fee Assessment and Failure to Pay

(A) A re-inspection fee shall be assessed when an inspection is required beyond the routine schedule set for the risk category of the food establishment.

(B) The re-inspection fee, required by Chapter 1, Section 134 of Title 16 of the Delaware Code, shall be paid upon or prior to inspection, in the following manner:

(1) The sum of $50 shall be required for a second inspection,

(2) The sum of $100 shall be required for a third inspection,

(3) The sum of $150 shall be required for each subsequent inspection.

(C) Failure to pay the re-inspection fee, as specified, shall result in the automatic suspension of the permit to operate a food establishment. The permit shall remain suspended until the Regulatory Authority receives full payment of all fees.

8-602 Administrative Action

8-602.10 General

If the Regulatory Authority determines that a food establishment is operating without a valid permit; that one or more conditions exist which represent an Imminent Health Hazard; or that serious violations, repeat violations, or general unsanitary conditions are found to exist, administrative action may occur. Administrative action will be conducted in accordance with the law.

(A) Operation without a Permit

(1) Immediate Closure Order. If a food establishment is found operating without a valid permit as required by subpart 8-301.11 of this Code, the Regulatory Authority shall order the facility immediately closed.

(2) Notice of Closure. The closure shall be effective upon receipt of a written notice by the person in charge of the food establishment or an employee of the food establishment. A closure notice statement recorded on the inspection report by the representative of the Regulatory Authority constitutes a written notice.

(3) Duration of Closure. The food establishment shall remain closed until a permit application; applicable fees and any required plans have been received and approved by the Regulatory Authority.

(B) Imminent Health Hazard(s)

(1) Permit Suspension without Hearing. If some condition is determined to exist in a food establishment, which presents an imminent health hazard to the public, the Regulatory Authority may suspend the operating permit of the food establishment without a prior hearing. The suspension shall be effective upon receipt of written notice by the person in charge of the food establishment or an employee of the food establishment. A suspension statement recorded on the inspection report by the Regulatory Authority constitutes a written notice.

(2) A permit issued pursuant to subpart (1) shall not be suspended for a period longer than ten (10) government business days without a hearing. Failure to hold a hearing within the ten (10) government business day period shall automatically terminate the suspension.

(3) Hearing Request. The permit holder of the food establishment may request, in writing, a hearing before the Regulatory Authority at any time during the period of suspension, for demonstrating that the imminent health hazard(s) no longer exist. The request for hearing shall not stay the suspension.

(4) Discontinued operation for the mitigation of an imminent health hazard requires a food establishment to remain closed for at least twenty-four (24) hours.

(C) Serious Violations, Repeat Violations and General Unsanitary Conditions. When conditions exist in a food establishment that represent serious violations, repeat violations or general unsanitary conditions, the Regulatory Authority may initiate a corrective action plan or schedule a hearing.

8-603 Agency Emergency Actions

8-603.10 Examination of Food.

Food may be examined or sampled by the Regulatory Authority as often as necessary for enforcement of this Code.

8-603.20 Wholesome and Free from Spoilage.

All food shall be wholesome and free from spoilage. Food that is spoiled or unfit for human consumption shall not be kept on the premises. The established administrative procedures for the implementation and enforcement of the provisions of Chapter 33 of Title 16 of the Delaware Code, relating to the embargo of misbranded or adulterated food, and penalties shall be applicable to this subpart.

8-604 Penalties

8-604.10 Operation in Violation of Code.

Any person (or responsible officer of that person) who violates a provision of this Code, and any person (or responsible officer of that person) who is the holder of a permit or who otherwise operates a food establishment that does not comply with the requirements of this Code shall be subject to the provisions of Section 107 of Title 16 of the Delaware Code.

8-604.20 Refusal, Failure or Neglect to Comply with Order of the Regulatory Authority.

Any person (or responsible officer of that person) who violates a provision of this Code, and any person (or responsible officer of that person) who is the holder of a permit or who otherwise operates a food establishment that refuses, fails or neglects to comply with an order of the Regulatory Authority shall be subject to an administrative penalty of not less than $100 and not more than $1,000, together with costs.

8-604.30 Injunction. The Regulatory Authority may seek to enjoin violations of this Code.

8-604.40 Public Notification. A placard, as provided by the Division of Public Health, shall be prominently displayed at all entrances of food establishments that have failed to obtain a valid permit or have a permit that is suspended, revoked, or expired. This placard shall only be removed by order of the Regulatory Authority."

16 Del. Admin. Code § 4458-3.0

14 DE Reg. 822 (02/01/11)
17 DE Reg. 1084(5/1/2014)
24 DE Reg. 158 (8/1/2020)