HOUSE Amended 2nd Reading February 14, 2005First Regular Session Sixty-fifth General Assembly STATE OF COLORADO ENGROSSED This Version Includes All Amendments Adopted on Second Reading in the House of Introduction LLS NO. 05-0143.01 Kristen Forrestal HOUSE BILL 05-1009 HOUSE SPONSORSHIP Coleman, and Vigil SENATE SPONSORSHIP Takis, Anderson, Taylor, and Tupa House Committees Senate Committees Health and Human Services A BILL FOR AN ACT Concerning penalties for retail food establishment violations. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Legislative Audit Committee. Replaces the terms "regular inspection" and "follow-up inspection" with the word "inspection". Increases the monetary penalties for retail food establishment violations. Eliminates the requirement that the department of public health and environment ("department") or local board of health submit written noncompliance letters to retail food establishments. Requires enforcement proceedings to end if the department or local board of health finds that a person previously found to have retail food establishment violations has achieved sustained compliance with the laws. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 25-4-1602, Colorado Revised Statutes, is amended BY A NEW SUBSECTION to read: 25-4-1602. Definitions. As used in this part 16, unless the context otherwise requires: (15.5) "Significant systemic public health violation" means a violation of the rules promulgated pursuant to section 25-4-1604 (1) (b) (I) that contributes to an overall systemic public health problem and that such violation is sufficient to permit the department or local board of health to establish a date and time for correction. Significant systemic public health violations include, without limitation, overall poor hygienic practices or lack of proper food temperature control, such as a failure to maintain proper cooling or reheating of foods at safe temperatures. SECTION 2. 25-4-1611 (1), (2), and (3), Colorado Revised Statutes, are amended, and the said 25-4-1611 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 25-4-1611. Violation - penalties. (1) If the department or a local board of health finds that a licensee or other person operating a retail food establishment was provided with written notification of a violation of section 25-4-1610 (1) (a), (1) (b), (1) (d), (1) (e), or (1) (f) and was given a reasonable time to comply but remained in noncompliance, such person shall be subject to a civil penalty of not less than two hundred fifty dollars and not more than one two thousand dollars, assessed by the department or local board of health. (2) (a) Upon a finding by the department or a local board of health that a retail food establishment is in violation of this part 16 or the rules promulgated pursuant to this part 16, and that such violation is sufficient to permit the department or local board of health to establish a date and time for correction, the department or local board of health shall, in writing, advise the licensee or other person operating such establishment of the violation, provide such person with a reasonable period of time to comply, and conduct a follow-up inspection. If, at the time of the follow-up inspection, such establishment is found to be in violation of the same provisions, the department or local board of health shall issue such person a written notification of noncompliance, provide such person with a reasonable time to comply, and conduct a second follow-up inspection. (b) (I) If, at a second follow-up inspection, a retail food establishment is found to be in compliance with the same provisions as were cited in the written notification issued pursuant to paragraph (a) of this subsection (2), the department or a local board of health shall advise the licensee or other person operating such establishment that noncompliance with such provisions at the next regular inspection shall result in the issuance of a second written notification of noncompliance. (II) If, at a second follow-up inspection, a retail food establishment is found to be in violation of the same provisions as were cited in the written notification of noncompliance issued pursuant to paragraph (a) of this subsection (2), the department or a local board of health shall issue a second written notification of noncompliance, advising the licensee or other person operating such establishment of the violation and potential civil penalties that may be assessed if such noncompliance continues. The department or a local board of health shall conduct a third follow-up inspection. (c) (I) If, at a third follow-up inspection, a retail food establishment is found to be in compliance with the same provisions as were cited in the second written notification of noncompliance issued pursuant to paragraph (b) of this subsection (2), the department or local board of health may assess a civil penalty of not less than two hundred fifty dollars nor more than five hundred dollars and shall advise the person operating such establishment in writing that future noncompliance with the cited provisions in the second notification of noncompliance shall result in the issuance of a third written notification of noncompliance and subject such establishment to an additional civil penalty of not less than two hundred fifty dollars nor more than five hundred dollars. (II) If, at a third follow-up inspection, a retail food establishment is found to be in violation of the same provisions as were cited in the second written notification of noncompliance issued pursuant to paragraph (b) of this subsection (2), the department or a local board of health may assess a civil penalty of not less than five hundred dollars nor more than one thousand dollars. When compliance with the provisions cited in the second written notification of noncompliance is obtained, the department or local board of health shall notify the licensee or other person operating such establishment in writing that noncompliance with the cited provisions in the second notification of noncompliance at the next regular inspection will result in the issuance of a third written notification of noncompliance and may result in an additional civil penalty of not less than five hundred dollars nor more than one thousand dollars. (2.5) (a) If the department or a local board of health finds that a licensee or other person operating a retail food establishment is in violation of section 25-4-1610 (1) (c), and that the violation is a significant systemic public health violation, the department or local board of health shall provide written notification on the inspection report and by written letter and establish a date, within a reasonable time, for compliance. The department or local board of health shall conduct an inspection on or after the established date to determine compliance with section 25-4-1610 (1) (c) as listed on the written notification. If the licensee or other person is found to remain in noncompliance with the same provisions that were cited in the written notification pursuant to this section, the department or local board of health shall again provide written notification of noncompliance and a reasonable time for compliance. If, during the inspection on or after the second established compliance date, the licensee or other person remains in noncompliance, such person shall be subject to a civil penalty of not less than two hundred fifty dollars and not more than one thousand dollars, assessed by the department or local board of health. If, during the inspections, another significant systemic public health violation is observed that was not listed on the initial violation notification, a separate civil penalty enforcement proceeding regarding the new violation may be initiated. (b) If, at the next inspection following the assessment of a civil penalty pursuant to paragraph (a) of this subsection (2.5), the department or local board of health finds that the person subject to the civil penalty is again in violation of the same provisions that were cited in the written notification pursuant to this section, such person shall be assessed a second civil penalty of not less than one thousand dollars and not more than one thousand five hundred dollars, assessed by the department or local board of health. Such person shall have a reasonable time period to comply. (c) If, at the next inspection following the assessment of a civil penalty pursuant to paragraph (b) of this subsection (2.5), the department or local board of health finds that the person subject to the civil penalty is again in violation of the same provisions that were cited in the written notification pursuant to this section, such person shall be assessed a third civil penalty of not less than one thousand five hundred dollars and not more than two thousand dollars, assessed by the department or local board of health. (d) If, during subsequent inspections, the department or local board of health finds that a person previously subject to a civil penalty under paragraph (a), (b), or (c) of this subsection (2.5) is once again in compliance with the same provisions that were cited in the written notification pursuant to this section, the department or local board of health shall notify the person in writing that noncompliance with the same provisions that were cited in the written notification pursuant to this section at the next inspection may result in the issuance of a civil penalty pursuant to paragraph (a) of this subsection (2.5). (e) If the department or local board of health finds that a person previously subject to civil penalties under paragraphs (a) and (b) of this subsection (2.5) has achieved compliance with the same provisions that were cited in the written notification pursuant to this section, for the violations for which penalties were previously assessed, the enforcement proceedings shall end. (3) A maximum of three civil penalties may be assessed against a licensee or other person operating a retail food establishment in any calendar year twelve-month period. Whenever a third civil penalty is assessed in a calendar year any twelve-month period, the department or local board of health shall initiate proceedings to suspend or revoke the license of the licensee pursuant to section 25-4-1609. SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.