New Mexico Administrative Code
Title 7 - HEALTH
Chapter 6 - FOOD HANDLING
Part 2 - FOOD SERVICE AND FOOD PROCESSING
Section 7.6.2.8 - FOOD ESTABLISHMENT REQUIREMENTS
Universal Citation: 7 NM Admin Code 7.6.2.8
Current through Register Vol. 35, No. 6, March 26, 2024
A. Adoption of food code. Except as otherwise provided, the 2017 United States food and drug administration model food code and the supplement to the 2017 food code are hereby adopted and incorporated in their entirety.
B. Modifications to food code. Except as otherwise provided, the following modifications are made to the incorporated food code.
(1) 2-102.12
Certified food protection manager.
(a) At
least one employee per food establishment that has supervisory and management
responsibility and the authority to direct and control food preparation and
service shall be a certified food protection manager who has shown proficiency
of required information through passing a test that is part of an accredited
program.
(b) This section applies
to food establishments, temporary food establishments, and mobile food
establishments.
(c) This section
does not apply to certain types of food establishments deemed by the regulatory
authority to pose minimal risk of causing, or contributing to, foodborne
illness based on the nature of the operation and extent of food
preparation.
(d) A single certified
food protection manager may be responsible for more than a single food
establishment, provided that a variance is approved by the regulatory authority
as specified in Paragraph (12) of Subsection B of
7.6.2.8
NMAC and Section 8-103.11 of the food code.
(e) The effective date of Paragraph (1) of
Subsection B of
7.6.2.8
NMAC shall be three months from the effective date of
7.6.2.8
NMAC.
(2) 2-102.20 Food
protection manager certification
(a) A person
in charge who demonstrates knowledge by being a food protection manager that is
certified by a food protection manager certification program that is evaluated
and listed by a Conference for Food Protection-recognized accrediting agency as
conforming to the conference for food protection standards for accreditation of
food protection manager certification programs is deemed to comply with
Paragraph 2-102.11(B).
(b) A food
establishment that has an employee that is certified by a food protection
manager certification program that is evaluated and listed by a Conference for
Food Protection-recognized accrediting agency as conforming to the Conference
for Food Protection Standards for Accreditation of Food Protection Manager
Certification Programs is deemed to comply with Section 2102.12.
(3) 3-201.15 Molluscan shellfish.
(a) Molluscan shellfish shall be obtained
from sources according to law and the requirements specified in the United
States (U.S.) DOH and human services, public health service, FDA, national
shellfish sanitation program guide for the control of molluscan
shellfish.
(b) Molluscan shellfish
shall be from sources that are listed in the interstate certified shellfish
shippers list.
(4)
3-202.18 Shellstock identification.
(a)
Shellstock shall be obtained in containers bearing legible source
identification tags or labels that are affixed by the harvester or dealer that
depurates, ships, or reships the shellstock, as specified in the national
shellfish sanitation program guide for the control of molluscan shellfish, and
that list:
(i) except as specified under
Subparagraph (c) of Paragraph 3 of Subsection B of
7.6.2.8
NMAC, on the harvester's tag or label, the following information in the
following order: the harvester's identification number that is assigned by the
shellstock control authority, the date of harvesting, the most precise
identification of the harvest location or aquaculture site that is practicable
based on the system of harvest area designations that is in use by the
shellstock control authority and including the abbreviation of the name of the
state or country in which the shellfish are harvested, the type and quantity of
shellfish, the following statement in bold, capitalized type: "this tag is
required to be attached until container is empty or retagged and thereafter
kept on file for 90 days";
(ii)
except as specified in Subparagraph (d) of Paragraph (3) of Subsection B of
7.6.2.8
NMAC, on each dealer's tag or label, the following information in the following
order: the dealer's name and address, the certification number assigned by the
shellstock control authority, the original shipper's certification number
including the abbreviation of the name of the state or country in which the
shellfish are harvested, the same information as specified for a harvester's
tag under Item (i) of Subparagraph (a) of Paragraph (3) of Subsection B of
7.6.2.8
NMAC, and the following statement in bold, capitalized type: "this tag is
required to be attached until container is empty and thereafter kept on file
for 90 days."
(b) A
container of shellstock that does not bear a tag or label or that bears a tag
or label that does not contain all the information as specified under
Subparagraph (a) of Paragraph (3) of Subsection B of
7.6.2.8
NMAC shall be subject to a hold order or seizure and destruction in accordance
with Section
25-2-6
NMSA 1978.
(c) If a place is
provided on the harvester's tag or label for a dealer's name, address, and
certification number, the dealer's information shall be listed first.
(d) If the harvester's tag or label is
designed to accommodate each dealer's identification as specified under Item
(ii) of Subparagraph (a) of Paragraph (3) of Subsection B of
7.6.2.8
NMAC, individual dealer tags or labels need not be provided.
(5) 3-502.11 Variance requirement.
A food establishment shall obtain a variance from the regulatory authority as
specified in Sections 8-103.10 and 8-103.11 of the food code before:
(a) smoking food as a method of food
preservation rather than as a method of flavor enhancement;
(b) curing food;
(c) using food additives or adding components
such as vinegar:
(i) as a method of food
preservation rather than as a method of flavor enhancement; or
(ii) to render a food so that it is not TCS
food;
(d) packaging TCS
food using a reduced oxygen packaging method except where the growth of and
toxin formation by clostridium botulinum and the growth of listeria
monocytogenes are controlled as specified under Section 3-502.12 of the food
code;
(e) operating a molluscan
shellfish life-support system display tank used to store or display shellfish
that are offered for human consumption;
(f) preparing food by another method that is
determined by the regulatory authority to require a variance; or
(g) sprouting seeds or beans.
(6) 4-205.10 Food equipment,
certification and classification.
(a) Food
equipment, including new and replacement equipment, shall be certified or
classified for sanitation by an American national standards institute (ANSI) -
accredited certification program. Such accredited programs include, but are not
limited to, the national sanitation foundation (NSF), underwriters laboratories
(UL), intertek ETL, or the Canadian standards administration (CSA).
(b) Food equipment that is certified or
classified for sanitation by an ANSI - accredited certification program is
deemed to comply with Parts 4-1 and 4-2 of the Food Code.
(7) 4-301.11 Cooling, heating, holding
capacities and use.
(a) Equipment for cooling
and heating food, and holding cold and hot food, shall be sufficient in number
and capacity to provide food temperatures as specified under Chapter 3 of the
food code.
(b) Steam tables, slow
cookers, and other hot holding devices shall not be used in cooking, heating or
reheating food as specified under Sections 3-401 and 3-403 of the food
code.
(8) 5-102.11
Standards. Except as specified under Section 5-102.12 of the food code:
(a) Water from a public water system shall
meet the construction and drinking water quality standards specified in 20.7.10
NMAC; and
(b) Water from a
non-public water system shall meet:
(i) the
construction requirements and drinking water quality standards of a
non-community water system as specified in 20.7.10 NMAC; and
(ii) the drinking water source setback
requirements as specified in 20.7.3 NMAC.
(9) 5-102.13 Sampling. Except when used as
specified under Section 5-102.12 of the Food Code, water from a non-public
water system shall meet the sampling requirements of a non-community water
system as specified in 20.7.10 NMAC.
(10) 5-203.13 Service sink.
(a) Except as specified in Paragraph (C) of
Section 5-203.13 of the food code, at least one service sink or one curbed
cleaning facility equipped with a floor drain shall be provided and
conveniently located for the cleaning of mops or similar wet floor cleaning
tools and for the disposal of mop water and similar liquid waste.
(b) Toilets and urinals may not be used as a
service sink for the disposal of mop water and similar liquid waste.
(c) When no health hazard will exist, the
regulatory authority may approve an alternative method.
(11) 6-501.115 Prohibiting animals.
(a) Except as specified in Subparagraphs (b)
and (c) of Paragraph (10) of Subsection B of
7.6.2.8
NMAC, live animals may not be allowed on the premises of a food
establishment.
(b) Live animals may
be allowed in the following situations if the contamination of food, clean
equipment, utensils, and linens, and unwrapped single-service and single-use
articles cannot result:
(i) edible fish or
decorative fish in aquariums, shellfish or crustaceans on ice or under
refrigeration, and shellfish and crustaceans in display tank systems;
(ii) patrol dogs accompanying police or
security officers in offices and dining, sales, and storage areas, and sentry
dogs running loose in outside fenced areas;
(iii) in areas that are not used for food
preparation and that are usually open for customers, such as dining and sales
areas, service animals that are controlled by the disabled employee or person,
if a health or safety hazard will not result from the presence or activities of
the service animal;
(iv) pets in
the common dining areas of institutional care facilities such as nursing homes,
assisted living facilities, group homes, or residential care facilities at
times other than during meals if effective partitioning and self-closing doors
separate the common dining areas from food storage or food preparation areas,
condiments, equipment, and utensils are stored in enclosed cabinets or removed
from the common dining areas when pets are present, and dining areas including
tables, countertops, and similar surfaces are effectively cleaned before the
next meal service;
(v) in areas
that are not used for food preparation, storage, sales, display, or dining, in
which there are caged animals or animals that are similarly confined, such as
in a variety store that sells pets or a tourist park that displays animals;
and
(vi) pet dogs in outdoor dining
areas, if allowed by the food establishment, and pet dogs are excluded from any
area where food is prepared, pet dogs are kept on a leash and under reasonable
control at all times, pet dogs are not allowed on chairs, consumer's laps,
tables, or other furnishings, consumers shall not feed pet dogs on food
establishment tableware, and a sign approved by the regulatory authority is
posted at each entrance to the designated outdoor dining area stating the
conditions under which pet dogs are allowed and alerting patrons that pet dogs
are allowed and may be present.
(c) Live or dead fish bait may be stored if
contamination of food, clean equipment, utensils, and linens, and unwrapped
single-service and single-use articles cannot result.
(12) 8-103.10 Modifications and waivers.
(a) The regulatory authority may grant a
variance by modifying or waiving the requirements of the food code if in the
opinion of the regulatory authority a health hazard or nuisance will not result
from the variance. If a variance is granted, the regulatory authority shall
retain the information specified under Section 8-103.11 of the food code in its
records for the food establishment.
(b) The regulatory authority shall grant the
variance, grant the variance subject to conditions, or deny the variance within
15 working days following the receipt of the variance request.
(13) 8-201.11 When plans are
required. Except for temporary food establishments, a permit applicant or
permit holder shall submit to the regulatory authority properly prepared plans
and specifications for review and approval at least 30 calendar days before:
(a) the construction of a food
establishment;
(b) the conversion
of an existing structure for use as a food establishment;
(c) the remodeling of a food establishment or
a change of type of food establishment or food operation as specified under
Subparagraph (c) of Paragraph (17) of Subsection B of 7.6.2 NMAC if the
regulatory authority determines that plans and specifications are necessary to
ensure compliance with the food code; or
(d) opening or changing ownership of an
existing food establishment, if current plans and specifications are not on
file with the regulatory authority.
(14) 8-301.11 Prerequisite for operation.
(a) A person may not operate a food
establishment or servicing area without a valid permit to operate issued by the
regulatory authority.
(b) Except as
specified in Subparagraphs (c) and (d) of Paragraph (13) of Subsection B of
7.6.2 NMAC, when more than a single food establishment is operated on the
premises, each one shall be separately permitted.
(c) Bars operating in conjunction with a food
establishment do not require a separate permit.
(d) A food establishment used as a servicing
area does not require a separate permit.
(e) Prior to the issuance of a permit or the
renewal of a permit, the regulatory authority shall make inspections of the
food establishment or food processing plant as it deems necessary.
(15) 8-302.11 Submission 30
calendar days before proposed opening. An applicant shall submit an application
for a permit at least 30 calendar days before the date planned for opening a
food establishment, mobile food establishment, food processing plant, or
home-based food processing operation.
(16) 8-302.13 Qualifications and
responsibilities of applicants. To qualify for a permit, an applicant shall:
(a) be an owner of the food establishment or
an officer of the legal ownership;
(b) comply with the requirements of 7.6.2
NMAC;
(c) as specified under
Paragraph (21) of Subparagraph B of
7.6.2.8
NMAC, agree to allow access to the food establishment and to provide required
information; and
(d) pay the
applicable permit fees when approval to open is granted by the regulatory
authority.
(17) 8-302.14
Contents of the application. The application shall include:
(a) the name, mailing address, telephone
number, and signature of the person applying for the permit and the name,
mailing address, and location of the food establishment;
(b) information specifying whether the food
establishment is owned by an association, corporation, individual, partnership,
or other legal entity;
(c) a
statement specifying whether the food establishment:
(i) is mobile or stationary and temporary or
permanent;
(ii) prepares, offers
for sale, or serves time/temperature control for safety food only to order upon
a consumer's request, or in advance in quantities based on projected consumer
demand and discards food that is not sold or served at an approved frequency,
or using time as the public health control as specified under Section 3-501.19
of the food code;
(iii) prepares
time/temperature control for safety food in advance using a food preparation
method that involves two or more steps which may include combining
time/temperature control for safety food ingredients, cooking, cooling,
reheating, hot or cold holding, freezing or thawing;
(iv) prepares food as specified under Item
(ii) of Subparagraph (c) of Paragraph (16) of Subparagraph B of
7.6.2.8
NMAC for delivery to and consumption at a location off the premises of the food
establishment where it is prepared;
(v) prepares food as specified under Item
(ii) of Subparagraph (c) of Paragraph (16) of Subparagraph B of
7.6.2.8
NMAC for service to a highly susceptible population;
(vi) prepares only food that is not
time/temperature control for safety food;
(vii) does not prepare, but offers for sale
only prepackaged food that is not time/temperature control for safety
food;
(d) the name,
title, address, and telephone number of the person directly responsible for the
food establishment;
(e) the name,
title, address, and telephone number of the person who functions as the
immediate supervisor of the person specified under Subparagraph (d) of
Paragraph (16) of Subsection B of
7.6.2.8
NMAC, such as the zone, district, or regional supervisor;
(f) the names, titles, and addresses of the
persons comprising the legal ownership as specified under Subparagraph (b) of
Paragraph (16) of Subsection B of
7.6.2.8
NMAC, including the owners and officers, and the local resident agent if one is
required based on the type of legal ownership;
(g) a statement signed by the applicant that
attests to the accuracy of the information provided in the application and
affirms that the applicant will comply with the food code, and allow the
regulatory authority access to the food establishment as specified under
Subparagraph (a) of Paragraph (20) of Subsection B of
7.6.2.8
NMAC and to the records specified under Sections 3-203.12 and 5-205.13 of the
food code and Subparagraph (6) of Paragraph (D) of Section 8-201.14 of the food
code; and
(h) other information
required by the regulatory authority.
(18) 8-303.20 Existing establishments, permit
renewal, and change of ownership.
(a) The
regulatory authority may renew a permit for an existing food establishment upon
submission of a renewal form provided by the regulatory authority and the
required fee(s) as specified in Roman numerals (i) and (ii) of Subparagraph (a)
of Paragraph (3) of Subsection D of
7.6.2.8
prior to the expiration date of the permit. Permit renewals that are not
submitted before the expiration date shall be assessed a late fee as specified
in Subparagraph (c) of Paragraph (3) of Subsection D of
7.6.2.8,
regardless of whether a permit fee is required.
(b) The regulatory authority may issue a
permit to a new owner of an existing food establishment, mobile food
establishment, servicing area, or food processing plant upon completion of
requirements as specified in Paragraph (13) of Subsection B of
7.6.2.8
and Paragraph (15) of Subsection B of
7.6.2.8,
and an inspection shows it is in compliance with 7.6.2 NMAC.
(19) 8-401.10 Establishing
inspection interval.
(a) Except as specified
in Subparagraph (b) of Paragraph (18) of Subsection B of
7.6.2.8
NMAC, the regulatory authority shall inspect a food establishment, mobile food
establishment, food processing plant, or home-based food processing operation
at least annually to determine compliance with the Food Service Sanitation Act,
the New Mexico Food Act, and 7.6.2 NMAC.
(b) The regulatory authority may periodically
inspect throughout its permit period a temporary food establishment that
prepares, sells, or serves unpackaged time/temperature control for safety food
and that:
(i) has improvised rather than
permanent facilities or equipment for accomplishing functions such as
handwashing, food preparation and protection, food temperature control,
warewashing, providing drinking water, waste retention and disposal, and insect
and rodent control; or
(ii) has
inexperienced food employees.
(c) When an inspection conducted by the
regulatory authority reveals a violation, or repeat violation of priority items
of 7.6.2 NMAC and a re-inspection is scheduled by the regulatory authority, a
re-inspection penalty fee shall be assessed by the regulatory authority and
paid by the operator as specified in Subparagraph (d) of Paragraph (3) of
Subsection D of
7.6.2.8
NMAC.
(20) 8-401.20
Performance- and risk-based. The regulatory authority shall prioritize, and
conduct more frequent inspections based upon its assessment of a food
establishment's history of compliance with the food code and the
establishment's potential as a vector of foodborne illness by evaluating:
(a) past performance, for nonconformance with
code or HACCP plan requirements that are priority items or priority foundation
items;
(b) past performance, for
numerous or repeat violations of Food Code or HACCP plan requirements that are
core items;
(c) past performance,
for complaints investigated and found to be valid;
(d) the hazards associated with the
particular foods that are prepared, stored, or served;
(e) the type of operation including the
methods and extent of food storage, preparation, and service;
(f) the number of people served;
and
(g) whether the population
served is a highly susceptible population.
(21) 8-402.11 Allowed at reasonable times
after due notice.
(a) After the regulatory
authority presents official credentials and provides notice of the purpose of,
and an intent to conduct, an inspection, the person in charge shall allow the
regulatory authority to determine if the food establishment, mobile food
establishment, food processing plant, or home-based food processing operation
is in compliance with the food code by allowing access to the establishment,
allowing inspection, and providing information and records specified in the
food code and to which the regulatory authority is entitled according to law,
during the food establishment's hours of operation and other reasonable
times.
(b) The regulatory authority
shall be allowed to copy any records pertaining to the manufacture, processing,
packing, distribution, receipt, holding, or importation of food maintained by
or on behalf of a food establishment, mobile food establishment, food
processing plant, or home-based food processing operation in any format,
including paper and electronic formats, and at any location. Proprietary
documents shall be protected by the regulatory authority as specified in
Section 8-202.10 of the food code.
(22) 8-402.20 Refusal, notification of right
to access, and final request for access. If a person denies access to the
regulatory authority, the regulatory authority shall:
(a) inform the person that:
(i) the permit holder is required to allow
access to the regulatory authority as specified under Section 8-402.11 of the
food code;
(ii) access is a
condition of the acceptance and retention of a food establishment permit to
operate as specified under Section 8-304.11 of the food code;
(iii) if access is denied, an order issued by
the appropriate authority allowing access, hereinafter referred to as an
inspection order, may be obtained according to law; and
(iv) refusal to allow access is grounds for
immediate permit suspension or revocation;
(b) make a final request for
access.
(23) 8-403.30
Issuing report and obtaining acknowledgement of receipt. The regulatory
authority shall provide a copy of the completed inspection report and the
notice to correct violations, as soon as possible after the inspection, to the
permit holder or to the person in charge, and request a signed acknowledgment
of receipt.
(24) 8-801.10 Proper
methods. A notice issued in accordance with the food code shall be considered
to be properly served if it is served by one of the following methods:
(a) the notice is personally served by the
regulatory authority, a law enforcement officer, or a person authorized to
serve a civil process to the permit holder, the person in charge, or person
operating a food establishment without a permit; or
(b) the notice is sent by the regulatory
authority to the last known address of the permit holder or the person
operating a food establishment without a permit, by registered or certified
mail or by other public means so that a written acknowledgment of receipt may
be acquired.
(25)
8-801.20 Restriction or exclusion order, hold order or immediate suspension. An
employee restriction or exclusion order, an order to hold and not distribute
food, such as a hold, detention, embargo, or seizure order which is hereinafter
referred to as a hold order, or an immediate suspension order shall be:
(a) served as specified in Paragraph (24) of
Subsection B of
7.6.2.8
NMAC; or
(b) clearly posted by the
regulatory authority at a public entrance to the food establishment and a copy
of the notice sent by first class mail to the permit holder or to the owner or
custodian of the food, as appropriate.
(26) 8-901.10 Conditions warranting remedy.
The regulatory authority may seek an administrative or judicial remedy to
achieve compliance with the provisions of the food code if a person operating a
food establishment or employee:
(a) fails to
have a valid permit to operate a food establishment as specified under Section
8-301.11 of the food code;
(b)
violates any term of condition of a permit as specified under Section 8-304.11
of the food code;
(c) allows
repeated violations of the Food Service Sanitation Act, Chapter 25, Article 1
NMSA 1978; the New Mexico Food Act, Chapter 25, Article 2 NMSA 1978; or serious
or repeated food code violations to reoccur or remain uncorrected beyond time
frames for correction approved, directed, or ordered by the regulatory
authority;
(d) fails to comply with
a regulatory authority order issued as specified in Section 8-501.20 of the
food code concerning an employee or conditional employee suspected of having a
disease transmissible through food by infected persons;
(e) fails to comply with a hold order as
specified in Paragraph (27) of Subsection B of
7.6.2.8
NMAC;
(f) fails to comply with an
order issued as a result of a hearing for an administrative remedy as specified
in Section 8-906.40 of the food code; or
(g) Fails to comply with an immediate
suspension order issued by the regulatory authority as specified in Paragraph
(24) of Subsection B of
7.6.2.8
NMAC and Paragraph (30) of Subsection B of
7.6.2.8
NMAC.
(27) 8-903.10 Hold
order, justifying conditions and removal of food.
(a) The regulatory authority may place a hold
order on a food that:
(i) originated from an
un-approved source;
(ii) may be
unsafe, adulterated, or not honestly presented;
(iii) is not labeled according to law, or, if
raw molluscan shellfish, is not tagged or labeled according to law;
or
(iv) is otherwise not in
compliance with the food code.
(b) If the regulatory authority has
reasonable cause to believe that the hold order will be violated, of finds that
the order is violated, the regulatory authority may remove the food that is
subject to the order to a place of safekeeping.
(28) 8-903.20 Hold order, warning or hearing
not required.
(a) The regulatory authority may
issue a hold order to a permit holder or to a person who owns or controls the
food, as specified in Paragraph (26) of Subsection B of
7.6.2.8
NMAC, without prior warning, notice of a hearing, or a hearing on the hold
order.
(b) If the suspected food
has been distributed, the permit holder shall be given the opportunity to
recall the food voluntarily at the permit holder's expense.
(c) If the permit holder refuses to recall
the suspected food, the regulatory authority may order a mandatory recall of
the suspected food at the permit holder's expense.
(29) 8-903.60 Examining, sampling, and
testing food. The regulatory authority may examine, sample, and test food in
order to determine its compliance with the Food Service Sanitation Act, Chapter
25, Article 1 NMSA 1978; the New Mexico Food Act, Chapter 25, Article 2 NMSA
1978; and 7.6.2 NMAC.
(30) 8-903.80
Destroying or denaturing food. When any food is found, by examination or
laboratory analysis, to be in violation of safe health standards, the
regulatory authority may order condemnation and disposal of the product lot, at
the expense of the permit holder.
(31) 8-904.10 Conditions warranting action.
The regulatory authority may immediately suspend a permit if it determines
through inspection, or examination of employees, food records, or other means
as specified in the food code, that an imminent health hazard exists.
(32) 8-904.20 Immediate suspension, warning
or hearing not required. The regulatory authority may immediately suspend a
person's permit as specified in Paragraph (31) of Subsection B of
7.6.2.8
NMAC by providing written notice as specified in Section Paragraph (25) of
Subsection B of
7.6.2.8
NMAC of the immediate suspension to the permit holder or person in charge,
without prior warning, notice of a hearing, or a hearing.
(33) 8-904.30 Contents of the notice. An
immediate suspension notice shall state:
(a)
that the food establishment permit is immediately suspended and that all food
operations shall immediately cease;
(b) the reasons for the immediate suspension
with reference to the provisions of the food code that are in
violation;
(c) the name and address
of the regulatory authority representative to whom a written request for
re-inspection may be made and who may certify that reasons for the suspension
are eliminated; and
(d) that the
permit holder may request an appeal hearing by submitting a timely request as
specified in Paragraph (35) of Subsection B of
7.6.2.8
NMAC and Paragraph (36) of Subsection B of
7.6.2.8
NMAC.
(34) 8-904.50 Term
of suspension, reinstatement of permit.
(a) An
immediate suspension shall remain in effect until the conditions cited in the
notice of suspension no longer exist and their elimination has been confirmed
by the regulatory authority through re-inspection and other means as
appropriate.
(b) The suspended
permit shall be reinstated immediately if the regulatory authority determines
that the public health hazard or nuisance no longer exists. A notice of the
reinstatement shall be provided to the permit holder or person in
charge.
(35) 8-905.10
Response to notice of hearing or request for hearing, basis and time frame.
(a) A permit applicant may request a hearing
regarding the disposition of an application for a new or revised permit if the
regulatory authority does not issue or deny the permit within the time frame
specified in the Food Code.
(b) A
permit holder may request a hearing to address concerns about the regulatory
authority's denial of application for a permit or request for a variance, or
compliance actions, except that a hearing request does not stay the regulatory
authority's restriction or exclusion of employees specified in Section
Paragraph (31) of Subsection B of
7.6.2.8
NMAC.
(c) A person desiring a
hearing in response to a denial of an application for permit or an adverse
administrative determination shall submit a hearing request to the regulatory
authority within 10 calendar days of the date of the denial, inspection, or
compliance action.
(36)
8-905.20 Request for hearing, required form and contents. A request for hearing
as specified in Section 8-905.10 of the food code shall be in written form and
contain the following information.
(a) If a
request for hearing:
(i) a statement of the
issue of fact specified in Paragraph (B) of Section 8-905.30 of the food code
for which the hearing is requested; and
(ii) a statement of defense, mitigation,
denial, or explanation concerning each allegation of fact.
(b) If either a response to notice of hearing
or a request for a hearing:
(i) a statement
indicating whether the presence of witnesses for the regulatory authority is
required; and
(ii) the name and
address of the respondent's or requestor's legal counsel, if any.
(37) 8-905.60 Notice,
contents. A notice of hearing shall contain the following information:
(a) time, date and place of the
hearing;
(b) purpose of the
hearing;
(c) the rights of the
respondent, including the right to be represented by counsel and to present
witnesses and evidence on the respondent's behalf as specified in Paragraph
(39) of Subsection B of
7.6.2.8
NMAC; and
(d) the consequences of
failing to appear at the hearing.
(38) 8-905.100 Record of proceeding. A
complete digital recording of a hearing shall be made and maintained as part of
the regulatory authority's records.
(39) 8-907.10 Rights of parties.
(a) The rules of civil procedure and the
rules of evidence shall not apply, but a hearing shall be conducted so that all
relevant views, arguments, and testimony are amply and fairly
presented.
(b) Parties to a hearing
may be represented by counsel, examine and cross examine witnesses, and present
evidence in support of their position.
(40) 8-907.30 Evidence to be excluded.
Evidence shall be excluded that is irrelevant, immaterial, unduly repetitious,
or excludable on constitutional or statutory grounds, or on the basis of
evidentiary privilege.
(41)
8-909.10 Gaining access to premises and records. The regulatory authority may
seek access for one or more of the following purposes, according to law for
gaining access:
(a) if admission to the
premises of a food establishment, mobile food establishment, temporary food
establishment, food processing plant, or home-based food processing operation
is denied or other circumstances exist that would justify an inspection order
under law, to make an inspection including taking photographs;
(b) to examine and sample the food or other
substances found on the premises; and
(c) to examine and copy the records on the
premises relating to food as specified in Section 8-402.11 of the food
code.
C. Omissions. The following provisions are omitted from the incorporated food code:
(1) 5-203.11(C) Handwashing
sinks.
(2) 8-7 Authority.
(3) 8-902.20 Content of inspection
order.
(4) 8-905.30 Provided upon
request.
(5) 8-905.40 Provided in
accordance with law.
(6) 8-905.50
Timeliness, appeal proceeding within five business days, other proceeding
within 30 calendar days.
(7)
8-905.70 Proceeding commences upon notification.
(8) 8-905.80 Procedure, expeditious and
impartial.
(9) 8-905.90
Confidential.
(10) 8-906.10
Appointment by regulatory authority and purpose.
(11) 8-906.20 Qualifications.
(12) 8-906.30 Powers, administration of
hearings.
(13) 8-906.40 Powers,
administrative remedies.
(14)
8-909.20 Contents of court petition.
(15) 8-909.30 Sworn statement of denied
access.
(16) 8-909.40 Contents of
an order.
(17) 8-909.50 Optional
contents of an order.
(18) 8-910.10
Institution of proceedings.
(19)
8-911.10 Authorities, methods, fines, and sentences.
(20) 8-912.10 Petitions of
injunction.
(21) 8-913.10
Petitions, penalties, and continuing violations.
D. Additional requirements. Except as otherwise provided, the following additions are made to the incorporated food code:
(1) 2-104.11 Food handler cards.
(a) Except as specified in Subparagraphs (b)
and (g) of Paragraph (1) of Subsection D of
7.6.2.8
NMAC, food employees shall demonstrate their knowledge of safe food handling
practices through passing a test from a food handler training program and
possess a valid food handler card.
(b) Except as specified in Subparagraph (g)
of Paragraph (1) of Subsection D of
7.6.2.8
NMAC, individuals who do not possess a valid food handler card prior to
employment as a food employee shall obtain such card within 30 calendar days
from the beginning of employment.
(c) Food handler cards shall be kept by the
food employee on his or her person while working at a food establishment or a
copy kept on file by the current employer and be made available for inspection
by the regulatory authority.
(d)
The regulatory authority may approve an entity's training program to be used in
lieu of requiring a food handler card of its food employees. A food employee
must complete the entity's approved training program at least every three
years. This exemption is only valid during the food employees' time of
employment with the entity that administered the training.
(e) An employee or person in charge at any
food establishment, food processing plant, temporary food establishment, or
mobile food establishment must provide training regarding pertinent safe food
handling practices to food employees prior to beginning food handling duties,
if the food employee does not hold a valid food handler card. Record of the
training, including name of instructor, date of training, and name(s) of food
employees shall be maintained on file and made available to the regulatory
authority upon request. The record of training shall be maintained for the
duration of the food employee's employment.
(f) Food handler cards shall be valid for
three years from the date of issuance.
(g) This paragraph does not apply to:
(i) food employees who comply with Paragraph
(1) of Subsection B of Section
7.6.2.8
NMAC;
(ii) food employees who
comply with Subparagraph (b) of Paragraph (1) of Subsection D of
7.6.2.8
NMAC;
(iii) food employees who do
not prepare or handle Time/Temperature Control for Safety Food, provided that
at a minimum the permit holder assures the employee complies with Subparagraph
(e) of Paragraph (1) of Subsection D of
7.6.2.8
NMAC;
(iv) employees or volunteers
who occasionally function as a food employee, provided that at a minimum the
permit holder assures the employee complies with Subparagraph (e) of Paragraph
(1) of Subsection D of
7.6.2.8
NMAC;
(v) food employees or
volunteers working as food employees of temporary food establishments, provided
that at a minimum the person in charge during hours of operation complies with
Paragraph (1) of Subsection B of Section
7.6.2.8
NMAC or has a valid food handler card, either of which shall be obtained prior
to issuance of a temporary food establishment permit, and the permit holder
assures the food employee or volunteer complies with Subparagraph (e) of
Paragraph (1) of Subsection D of
7.6.2.8
NMAC;
(vi) food employees or
volunteers working as food employees for charitable organizations serving the
needy, provided that at a minimum the person in charge during hours of
operation complies with Paragraph (1) of Subsection B of Section
7.6.2.8
NMAC; or
(vii) employees who do not
function as food employees.
(h) The food handler card requirements of
Paragraph (1) of Subsection D of Section
7.6.2.8
NMAC shall become effective three months after the effective date of
7.6.2.8
NMAC.
(2) 8-301.12
Responsibility for operation.
(a) Except as
specified in Subparagraphs (b) and (c) of Paragraph (2) of Subsection D of
7.6.2.8
NMAC, the permit holder shall be responsible for all food operations conducted
on the premises for which a permit is issued.
(b) Permit holders shall not be responsible
for food operations on the premises when another permit holder is operating
with a permit.
(c) Each permit
holder shall be responsible for shared facilities or equipment on the
premises.
(3) 8-303.15
Permit fees, late fees, penalty fees, and expiration dates.
(a) Except as specified in Subparagraph (b)
of Paragraph (3) of Subsection D of 7.6.2.8 NMAC, permit fees shall be:
(i) $200.00 for food establishments, mobile
food establishments, servicing areas, and food processing plants;
(ii) $100.00 for home-based food processing
operations; and
(iii) $25.00 for
temporary food establishments for each single event or celebration.
(b) Permit fees shall be waived
for food establishments, mobile food establishments, and temporary food
establishments that provide food to consumers at no charge, as well as
temporary food establishments that serve only non-TCS food or operate no more
than two days in a calendar month.
(c) In addition to the permit fees specified
above, a $25 late fee shall be added to the permit fee if the permit is not
renewed on or before the expiration date of the permit.
(d) A re-inspection penalty fee of $100 shall
be assessed by the regulatory authority and paid by the operator when a
re-inspection is scheduled by the regulatory authority as specified in
Subparagraph (c) of Paragraph (18) of Subsection B of 7.6.2.8 NMAC.
(e) If a permit is not renewed as specified
in Section 8-303.20 of the food code, and applicable re-inspection penalty fees
are not paid within 30 days after the expiration of the permit, a new permit
shall not be issued except upon completion of requirements specified in Section
8-303.10 of the food code.
(f)
Permits issued by the regulatory authority shall include an expiration date,
which shall be:
(i) The last day of the
anniversary month of the date of original issue for food establishments, mobile
food establishments, servicing areas, and food processing plants.
(ii) The last day of the single event or
celebration for temporary food establishments.
(g) No discount or refund shall be made for
partial years or for permit suspension or revocation.
(4) 8-407.11 Posting of compliance emblems.
(a) Except as specified in Subparagraph (e)
of Paragraph (4) of Subsection D of 7.6.2.8 NMAC, an emblem indicating the
compliance status of a food establishment shall be posted in a conspicuous
place at each entrance to the food establishment where it can be easily seen by
consumers and shall be posted or removed only by the regulatory
authority.
(b) An "approved" emblem
shall be posted at a food establishment that is operated in compliance with the
food code.
(c) An "unsatisfactory"
emblem may be posted at a food establishment when any priority items are out of
compliance during an inspection; or any priority item, priority foundation
item, or core item is out of compliance on a repeated basis within the last 25
months.
(d) Removal, defacing, or
obstruction of an emblem by any person other than the regulatory authority
shall result in immediate permit suspension or revocation.
(e) Food processing plants and temporary food
establishments are exempt from the posting of compliance emblems.
(5) 8-901.201 Permit suspension
and revocation.
(a) The regulatory authority
may suspend or revoke a permit for reasons specified in Section 8-901.10 of the
food code.
(b) The regulatory
authority shall conduct a hearing as specified in Section 8-905 of the food
code, as amended in 7.6.2 NMAC, prior to suspending or revoking a
permit.
(c) The permit holder shall
be notified of the hearing at least seven days prior to the hearing as
specified in Paragraph (37) of Subsection B of 7.6.2.8 NMAC.
(d) Failure by the permit holder to appear
shall result in immediate suspension or revocation of the permit.
(e) The suspension of a permit shall remain
in effect until the conditions leading to the suspension no longer exist and
their elimination has been confirmed by the regulatory authority through
re-inspection and other means as appropriate.
(f) A permit shall only be revoked if a
permit has previously been suspended.
(g) A permit that has been revoked shall not
be considered for reapplication until the permit holder has demonstrated to the
satisfaction of the regulatory authority that the food establishment will
comply with the food code.
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